Fisher v. Texas and the Irrelevance of Function in Race Cases

36 Pages Posted: 18 Jul 2014

See all articles by Derek W. Black

Derek W. Black

University of South Carolina - School of Law

Date Written: July 16, 2014


This symposium paper analyzes Fisher v. Texas in the context of the Supreme Court's overall race jurisprudence, demonstrating that the Court's decisions are driven by the form that considerations of race take rather than how those considerations actually operate. The University of Texas admissions plan, when compared to the admissions plan approved at the University of Michigan Law School in Grutter v. Bollinger, is very narrowly tailored. The University of Texas considered race in a smaller portion of admissions decisions and in a more limited way, even when race was considered. The Supreme Court, however, expressed serious skepticism of the plan, ignoring these functional distinctions. The paper also emphasizes that the Court's formalistic approach to racial considerations works to the disadvantage of minorities in non-affirmative action cases, particularly those cases in which minorities must demonstrate intentional discrimination to challenge racial inequalities.

Keywords: affirmative action, race discrimination, diversity, admissions, racial equality

Suggested Citation

Black, Derek W., Fisher v. Texas and the Irrelevance of Function in Race Cases (July 16, 2014). Howard Law Journal, Vol. 57, No. 477, 2014. Available at SSRN:

Derek W. Black (Contact Author)

University of South Carolina - School of Law ( email )

Main & Greene Streets
Columbia, SC 29208
United States

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