What's Next in Affirmative Action Jurisprudence: Fisher as Temporizing Rather than Reflecting a New-Found Consensus

Posted: 8 Nov 2018

See all articles by Mark Strasser

Mark Strasser

Capital University - Law School

Date Written: October 16, 2018

Abstract

In Fisher v. University of Texas at Austin (Fisher II), the United States Supreme Court upheld a University of Texas affirmative action admissions policy under strict scrutiny. Various commentators celebrated the ruling as a watershed event, allegedly because it foreshadowed an era in which universities will be much freer to use affirmative action to achieve diversity. Yet, such optimism is in spite of rather than because of the opinion, which is better understood either as temporizing or as an attempt to limit but not abolish affirmative action. This article explains the current jurisprudence and how the policy endorsed in Fisher II is much more restrictive than one would think from the reactions to the decision.

Keywords: affirmative action, strict scrutiny, Fisher, messaging

JEL Classification: k10

Suggested Citation

Strasser, Mark, What's Next in Affirmative Action Jurisprudence: Fisher as Temporizing Rather than Reflecting a New-Found Consensus (October 16, 2018). 20 Journal of Gender, Race and Justice 157-85 (2017), Available at SSRN: https://ssrn.com/abstract=3267426

Mark Strasser (Contact Author)

Capital University - Law School ( email )

303 E. Broad St.
Columbus, OH 43215-3200
United States
614-236-6686 (Phone)
614-236-6956 (Fax)

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