Fisher v. University of Texas at Austin: Could the Supreme Court Revisit Its Decision in Grutter?

Engage Volume 12, Issue 2, September 2011
By Joshua P. Thompson
September 12, 2011

In Grutter v. Bollinger, the Supreme Court held that achieving the educational benefits that flow from diversity could be a compelling interest in higher education. Yet Justice O’Connor, writing for a bare majority of the Supreme Court, also wrote that the Court did not expect the use of racial preferences in higher education to be necessary to promote diversity within twenty-five years. A recent case out of the Fifth Circuit, Fisher v. University of Texas at Austin, has brought the Grutter decision back into the national consciousness. If concurring Judge Garza’s opinion from the Fifth Circuit is heard, the constitutional sanction of racial preferences in higher education will have a shorter lifespan than the twenty-five years announced by Justice O’Connor. Though the plaintiffs in Fisher were recently denied en banc review by the Fifth Circuit, a petition for certiorari to the Supreme Court is likely forthcoming. If the writ is granted, Judge Garza has all but assured that the Court’s holding in Grutter will be revisited...