Note on Fisher v. University of Texas at Austin

Note on Fisher v. University of Texas at Austin

June 23, 2016


In a 4-3 ruling, the Supreme Court affirmed in Fisher v. University of Texas at Austin, 579 U.S. ___ (2016), also known as “Fisher II,” that the university’s consideration of race as part of its precisely articulated, holistic review process for its undergraduate admissions system is lawful, under the Equal Protection Clause of the Fourteenth Amendment to the Constitution, to reach its goal of providing the educational benefits of diversity to its students. Remarking on the Court’s June 23 ruling in Fisher, Attorney General Loretta Lynch stated that “[o]ur country is stronger, more credible, and more effective when our educational institutions include highly-qualified individuals with roots, cultures, and traditions that reflect our nation’s rich diversity.” 


The Fourteenth Amendment’s Equal Protection Clause applies to public educational institutions. However, under Title VI of the Civil Rights Act of 1964, the Fisher decision has implications for all federally funded educational institutions because courts have held that Title VI is coextensive with the Fourteenth Amendment. Accordingly, recipients of federal assistance may be permitted to consider race, color, or national origin as part of a selection policy when narrowly tailored and in furtherance of compelling interests such as remedying the effects of past discrimination, achieving the benefits of diversity in education, or reducing racial isolation. See, Parents Involved in Comty. Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 721-22 (2007) (seeking diversity and avoiding racial isolation in education); Associated Gen. Contractors of Am. v. Cal. Dep’t of Transp., 713 F.3d 1187 (9th Cir. 2013) (race-based preferences in transportation contracts to remedy discrimination in the state transportation industry); Wittmer v. Peters, 87 F.3d 916, 920 (7th Cir. 1996) (diversity in law enforcement).


Secretary of Education John B. King, Jr. said of the Fisher decision, "today's students need to be prepared to succeed in a diverse, global workforce. Diversity benefits communities, schools and students from all backgrounds, and research has shown that more diverse organizations make better decisions with better results. . . . The Department will continue to be a strong supporter of diversity and will work to ensure that all students benefit from school environments as diverse as America itself. As a nation, we are stronger together." (


Guidance documents from the Departments of Justice and Education review applicable legal principles and set out detailed considerations explaining how educational institutions can lawfully pursue voluntary policies to achieve diversity or avoid racial isolation within the framework of Titles IV and VI of the Civil Rights Act of 1964, and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. See Dep’t of Educ. and Dep’t of Justice, “Dear Colleague” Letter on the U.S. Supreme Court ruling in Schuette v. Coalition to Defend Affirmative Action (May 6, 2014); Dep’t of Educ. and Dep’t of Justice, “Dear Colleague” Letter and Guidance Documents on the Voluntary use of Race (Dec. 2, 2011). Guidance is presented in three documents, one for elementary and secondary schools ( and the other for postsecondary institutions (, and a third in question and answer form ( after the Supreme Court decided the first Fisher case. These also may be useful in understanding how and when recipients may consider race in other contexts.