Divisive Diversity at the University of Texas: An Opportunity for the Supreme Court to Overturn its Flawed Decision in Grutter

Abstract

Fisher v. Univeristy of Texas at Austin is primed to become the next important case dealing with race in university admissions. At the Fifth Circuit, the Fisher case drew amicus briefs from groups as diverse as the Center for Equal Opportunity to the Pacific Legal Foundation to the NAACP to the Obama Administration. This article provides a background into the issues decided by the Fifth Circuit in Fisher, focusing on the birth and rise of diversity as a compelling state interest from Bakke to Grutter. After analyzing the three separate opinions in Fisher, the article addresses a potential Supreme Court ruling in Fisher on two fronts. First, how the Supreme Court may attempt to distinguish Fisher from Grutter, thereby limiting the scope of Grutter. Second, the article advocates for a summarily reversal of Grutter for the serious constitutional problems raised by finding diversity as a compelling state interest.

Keywords: Fisher, University of Texas, diversity, compelling interest, race, admissions, equal protection clause, equal protection, Grutter v. Bollinger, Gratz v. Bollinger, Grutter, Bakke, PICS, Adarand, Croson, Fifth Circuit