Fisher v. University of Texas

By W. Bentley MacLeod 

W. Bentley MacLeod, Leon Levy Foundation Member (2011-12) in the School of Social Science

In 2003, the Supreme Court of the United States heard the case of Grutter v. Bollinger and upheld the right of the University of Michigan Law School to use race as a criterion for admissions. At the time, the majority speculated that in twenty-five years the consideration of race may no longer be necessary in admissions. This year, the Supreme Court will hear the case of Fisher v. University of Texas, which turns on the same issue. In other words, we may have a change in the law in less than ten years!

This, like many decisions of the Supreme Court, can have a major impact on our day-to-day lives. The decision in this case affects the set of schools to which we may be admitted in a world where access to the best schools is considered by many to be an important career stepping stone. The more puzzling aspect, particularly for non-Americans, is that this change does not result from any change in the law enacted by Congress. Both cases appeal to two laws. The first is constitutional law, namely the Fourteenth Amendment, which ensures that all citizens have equal protection under the law. The second is a statute passed by Congress, Title VI of the Civil Rights Act of 1964, which bans discrimination by agencies that receive federal funds. In Grutter v. Bollinger the judges created new law. They argued that the state had a compelling interest in allowing schools to use race as a factor in admissions. In essence, judges, rather than elected politicians, created a new law that allows universities to choose students on a basis that is arguably inconsistent with the Constitution of the United States.