Mutiny Over Strict Scrutiny? Interpreting the Judicial Approach to Race-Conscious Higher Education Admission Policies

Abstract

During the United States Supreme Court’s 2015-16 term, Fisher v. University of Texas at Austin (hereinafter referred to as Fisher I and Fisher II) was heard for a second time. The main issue in this case centered on the question of whether the University’s implementation of its admissions plan, in conjunction with the state’s Top Ten Percent Law, meets the two-prong strict scrutiny standard of first, being a compelling state interest and second, a narrowly tailored means to meet the stated objective. Under the Top Ten Percent Law high school students who graduate in the top ten percent of their class are eligible for automatic admission to any public college or university in Texas. In its 2013 ruling in Fisher I, the Supreme Court surmised that the Fifth Circuit Court of Appeals failed to properly apply the strict scrutiny analysis to the contested plan. The Fifth Circuit Court of Appeals ruled in the first appearance of Fisher I in 2011 and the second in 2014 that the University’s admissions format is constitutionally sound based on a strict scrutiny analysis. Since the application of the doctrinal framework for strict scrutiny is at odds between the high court and the Fifth Circuit, the Supreme Court’s analysis in Fisher II is of great interest. In this article using colorblind discourse as a theoretical framework, we posit why the Supreme Court accepted Fisher I for a second time especially in light of justiciability questions regarding the “troublesome threshold issues relating to standing and mootness,” analyze the Court’s Fisher II oral arguments, and share best practices on what higher education institutions can legally do to continue admitting and retaining people of color.