by Alison Somin
Federalist Society
February 27, 2014
The consequence of the recent Fisher v. University of Texas case is far from certain. Fisher proceeds from the premise that Grutter v. Bollinger, the 2003 Supreme Court case that found the University of Michigan Law School’s admissions system of holistic review constitutional, was rightly decided. But the opinion calls for tight judicial scrutiny of the means used to achieve Grutter’s approved end of diversity on campus—scrutiny tighter than what the Fifth Circuit previously understood Grutter to require. The ultimate outcome of the Fisher litigation is more likely to satisfy the opponents of race preferences, but it remains to be seen how the Fifth Circuit will thread this particular needle on remand, and the case may well return to the Supreme Court because it is less than clear what exactly this heightened standard of Fisher scrutiny entails.

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