The Hidden Question in Fisher

10 Pages Posted: 25 Nov 2015

Date Written: October 30, 2015


This Term, the Supreme Court will once again consider whether the University of Texas at Austin is illegally discriminating on the basis of race in its undergraduate admissions program. Most commentators expect the University to lose because it seems to have so little need to consider race as an admissions factor in light of the success generating racial diversity its Ten Percent Plan has had all by itself. This does, indeed, seem to be an easy case. But it is an easy case only because it has been litigated upon on a dubious premise: that the Ten Percent Plan is itself constitutional. The more interesting and important question is whether this premise is false. I think it may be. The Ten Percent Plan was (successfully) designed to replicate the discrimination against whites and Asians that the University had achieved using pervasive racial preferences in the 1990s. If a law is motivated by racial discrimination and has the effect of racial discrimination, isn’t the law racial discrimination? And, if it is, isn’t it constitutionally suspect? The short answers to these questions are yes.

Keywords: affirmative action; Texas Ten Percent Plan; racial preferences; college admissions; race neutral

Suggested Citation

Fitzpatrick, Brian T., The Hidden Question in Fisher (October 30, 2015). NYU Journal of Law & Liberty, Vol. 10, No. 1, 2016, Forthcoming, Vanderbilt Public Law Research Paper No. 15-37, Available at SSRN:

Brian T. Fitzpatrick (Contact Author)

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-322-4032 (Phone)

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