Fisher's Cautionary Tale and the Urgent Need for Equal Access to an Excellent Education

56 Pages Posted: 12 Mar 2022

Date Written: November 1, 2016


The Supreme Court's decision in Fisher v. University of Texas at Austin (Fisher II) held that the University of Texas had presented sufficient evidence to establish that its pursuit of the educational benefits of diversity through a race-conscious admissions policy satisfied the Court's demanding strict scrutiny inquiry. This Comment examines how Fisher II may benefit universities that seek to consider an applicant's race among many factors to assemble a diverse class while also analyzing how the case will make it harder for universities to do so given the Court's demanding evidentiary burden. This Comment then proposes a short-and long-term approach for preparing for the eventual demise of affirmative action. In the short-term, universities should consider educational disadvantage as a positive race-neutral factor that could assist institutions in assembling a diverse class. In the long-term, the federal government should take action that closes elementary and secondary educational opportunity and achievement gaps in ways that can help institutions enroll diverse student bodies even after affirmative action ends.

Keywords: student, affirmative action, race, university, college, strict scrutiny, Fourteenth Amendment, compelling interest, diversity, narrowly tailored, opportunity gap, achievement gap, federalism, school, education, schoolchildren, race, class

JEL Classification: I23, I24, I21, H75

Suggested Citation

Robinson, Kimberly Jenkins, Fisher's Cautionary Tale and the Urgent Need for Equal Access to an Excellent Education (November 1, 2016). Harvard Law Review, Vol. 130, No. 1, p. 185, 2016, Available at SSRN:

Kimberly Jenkins Robinson (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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