Fisher II Whose Burden, What Proof?

15 Pages Posted: 11 Apr 2017

Date Written: April 11, 2017


The Supreme Court’s initial decision in Fisher v. University of Texas, cast great doubt upon affirmative action in higher education. Fisher I required the University of Texas to meet “the demanding burden of strict scrutiny.” Yet in a subsequent decision, Fisher II, the Court held that the University had carried its burden, or more precisely, that Fisher had not carried her burden of showing that the University had failed to carry its burden. This convoluted layering of burdens upon burdens comes from a literal reading of the majority opinion by Justice Kennedy, to be sure in a Court diminished by the untimely death of Justice Scalia and the recusal of Justice Kagan. Their votes, however, probably would have cancelled out, leaving intact the force of Fisher II as a precedent and the decisive vote of Justice Kennedy, despite the recent appointment of Justice Gorsuch. When the Court returns to the issue of affirmative action, it will have to determine exactly what Fisher II decided. This is not an easy question. This article argues that because Fisher II upheld the University’s affirmative action plan on summary judgment, it both created further ambiguity over the standards for evaluating affirmative action plans and made it more difficult to attack them. In particular, the Court shifted part of the burden of proof on the availability of feasible race-neutral alternatives back onto those attacking affirmative action plans.

Suggested Citation

Rutherglen, George A., Fisher II Whose Burden, What Proof? (April 11, 2017). 20 Green Bag 2d 19 (2016), Virginia Public Law and Legal Theory Research Paper No. 2017-16, Available at SSRN:

George A. Rutherglen (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-7015 (Phone)
434-924-7536 (Fax)

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