Fisher v. University of Texas at Austin: Promoting Full Judicial Review and Process in Applying Strict Scrutiny

11 Pages Posted: 30 Jun 2014 Last revised: 28 Jul 2014

See all articles by Rebecca K. Lee

Rebecca K. Lee

Thomas Jefferson School of Law

Date Written: October 21, 2013


In deciding Fisher v. University of Texas at Austin, the U.S. Supreme Court in its 7-1 majority opinion issued a cautious and limited ruling, but one that strengthens the role of evidence-based judicial review and process in applying strict scrutiny. As an initial and important matter, Fisher does not disturb the Court's earlier holdings in Regents of the University of California v. Bakke, Grutter v. Bollinger, and Gratz v. Bollinger, and the majority in fact makes clear that those cases are still good law, stating that it "take[s] those cases as given for purposes of deciding [Fisher]." In expressing this, the Court continues to recognize that a university's interest in attaining a diverse student body for educational purposes is a compelling interest that could make the consideration of race in university admissions permissible under the Fourteenth Amendment's Equal Protection Clause. While these cases all held that strict scrutiny would be used to examine whether a university's use of race is narrowly tailored to meet its asserted objective, Fisher arguably appears to make the strict scrutiny analysis more strict and more scrutinizing by requiring independent judicial review of a university's admissions program in determining whether the narrowly-tailored prong is met.

It is indeed a positive outcome that student body diversity remains a compelling governmental interest under the Equal Protection Clause, given the pedagogical goals of universities and the longer-term benefits highlighted by the amici in Grutter, many of whom focused on this question. Fisher takes a closer look at the narrowly-tailored part of the strict scrutiny standard, and clarifies that this must entail a court's separate assessment rather than deference to a university's conclusions. In providing this clarification, Fisher does not narrow the use of race in affirmative action programs per se. Rather, it strengthens full judicial review and process under strict scrutiny and upholds the constitutionality of such programs if the standard is met.

Keywords: affirmative action, higher education, public universities, university admissions, race, strict scrutiny, judicial review, diversity

JEL Classification: K19, K41

Suggested Citation

Lee, Rebecca K., Fisher v. University of Texas at Austin: Promoting Full Judicial Review and Process in Applying Strict Scrutiny (October 21, 2013). Houston Law Review HLRe: Off the Record, Vol. 4, No. 1, p. 33, 2013, Thomas Jefferson School of Law Research Paper No. 2460593, Available at SSRN:

Rebecca K. Lee (Contact Author)

Thomas Jefferson School of Law ( email )

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San Diego, CA 92101
United States
619-961-4268 (Phone)

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