Education Law

Race-based Admissions Revisited: Fisher v. University of Texas - Podcast

Civil Rights Practice Group Podcast
Andrew Grossman September 19, 2014

On July 25, 2014, the Fifth Circuit Court of Appeals issued its decision in Fisher v. University of Texas at Austin, on remand from the Supreme Court of the United States.  In a 2-1 decision, the panel upheld the University of Texas' affirmative action policies, "persuaded by UT-Austin ... of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race."  Was this decision consistent with the Supreme Court's 7-1 decision in June 2013?  What will happen going forward?  Our expert answered these and other questions for a live call-in audience.

  • Andrew Grossman, Associate, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute

The Twilight of Race-Based Preferences in College Admissions - Event Audio/Video

Michigan Lawyers Chapter
Trevor W. Coleman, Mark Fancher, Jennifer Gratz, Hans A. von Spakovsky, Henry Payne, Matthew G. Davis, Penelope S. Williams March 11, 2014

The Twilight of Race-Based Preferences in College Admissions - Event Audio/VideoThe Michigan Lawyers Chapter hosted this event on February 12, 2014, at Thomas M. Cooley Law School in Lansing, Michigan.


  • Mr. Trevor Coleman, Author and Speechwriter
  • Mr. Mark Fancher, ACLU of Michigan
  • Ms. Jennifer Gratz, XIV Foundation
  • Mr. Hans von Spakovsky, Heritage Foundation
  • Moderator: Mr. Henry Payne, The Detroit News
  • Introduction: Mr. Matthew G. Davis, Communications Chair, Michigan Lawyers Chapter
  • Introduction: Ms. Penelope Williams, President, Thomas M. Cooley Student Chapter

Thomas M. Cooley Law School
Lansing, MI

School Discipline and the Expansion of Disparate Impact - Podcast

Civil Rights Practice Group Podcast
Roger B. Clegg, Hans Bader, Dean A. Reuter February 05, 2014

school lockersOn January 8, 2014, the Department of Justice Civil Rights Division and the Department of Education Office for Civil Rights jointly released a memo urging public schools to revisit discipline policies that they assert have a disproportionate effect on minority students. “Schools ... violate Federal law when they evenhandedly implement facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating against students on the basis of race," read the memo. "Examples of policies that can raise disparate impact concerns include policies that impose mandatory suspension, expulsion, or citation (e.g., ticketing or other fines or summonses) upon any student who commits a specified offense — such as being tardy to class, being in possession of a cellular phone, being found insubordinate, acting out, or not wearing the proper school uniform.” Our experts discussed the expansion of disparate impact analysis into school discipline. Materials referenced during this podcast are available on this web page under "Related Links."


  • Hans Bader, Senior Attorney and Counsel for Special Projects, Competitive Enterprise Institute
  • Roger Clegg, President and General Counsel, Center for Equal Opportunity
  • Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society

[Listen now!]

Debate on Fisher and Shelby County - Podcast

Civil Rights Practice Group, American Constitution Society, and National Constitution Center Podcast
Erwin Chemerinsky, Roger B. Clegg, Jeffrey Rosen June 28, 2013

Debate on Fisher and Shelby County - PodcastThe Federalist Society co-sponsored a Teleforum call with the National Constitution Center and the American Constitution Society to discuss the Supreme Court's decisions in the Fisher affirmative action case and the Shelby County Voting Rights Act case.  On this previously recorded conference call, Roger Clegg, President and CEO of the Center for Equal Opportunity, Erwin Chemerinsky, Founding Dean of the University of California, Irvine, School of Law, and Jeffrey Rosen, President and CEO of the National Constitution Center, discuss the opinions and their implications.


  • Dean Erwin Chemerinsky, Founding Dean, University of California, Irvine School of Law
  • Mr. Roger Clegg, President and General Counsel, Center for Equal Opportunity
  • Moderator: Prof. Jeffrey Rosen, George Washington University Law School, and President and Chief Executive Officer, National Constitution Center

[Listen now!]

Fisher v. University of Texas - Post-Decision SCOTUScast

SCOTUScast 6-25-13 featuring Gail Heriot and Peter Kirsanow
Gail Heriot, Peter N. Kirsanow June 25, 2013

Peter KirsanowGail HeriotOn June 24, 2013 the Supreme Court announced its decision in Fisher v. University of Texas at Austin. This case considered whether using race as a factor in undergraduate admissions decisions is permitted by the Equal Protection Clause.

In an opinion delivered by Justice Kennedy, the Court held by a 7-1 vote that because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in the Grutter and Bakke precedents, its decision in favor of the university must be vacated and the case remanded for proper application of strict scrutiny.  Chief Justice Roberts, as well as Justices Scalia, Thomas, Breyer, Alito and Sotomayor joined the opinion of the Court. Justices Scalia and Thomas filed concurring opinions. Justice Ginsburg filed a dissenting opinion. Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Gail Heriot, who is a Professor of Law at University of San Diego School of Law and Peter Kirsanow, who is a Partner at Benesch with the firm's Labor & Employment Practice Group and a member of the Diversity & Inclusion Committee.

[Listen now!]