Fisher V. Texas: The Limits of Exhaustion and the Future of Race-Conscious University Admissions

This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the limits of the exhaustion requirement as a matter of logic, law, and policy. We focus on the necessity and exhaustion prongs of narrow tailoring with respect to the use of race in admissions. We will complicate the necessity analysis by illustrating the practical difficulties of employing race-neutral alternatives and by highlighting how this inquiry is fraught with administrative and conceptual challenges. Part III underscores the challenges presented in Part II by attempting to navigate the distinction between general race-consciousness and the use of individual racial classifications. We will explore the possibilities for university admissions committees to pursue racial and socio-economic diversity, including the opportunity-enrollment model. As a reference, we will survey integrative alternatives used in the wake of the Parents Involved decisions and suggest how colleges and universities could apply a similar set of principles and methods. We will also note the challenges facing such approaches on the scale of university admissions. We will conclude by arguing that race-conscious admissions are necessary, yet increasingly administratively challenging. The standards for narrow tailoring demand expertise beyond the skills and the resources of university admissions committees and call for more administratively cumbersome university standards. Given the extant realities of our educational system, courts should provide more leeway, not less, to universities pursuing the compelling interests of promoting student body diversity and reducing racial isolation. In the absence or relative unavailability of such resources and technical expertise, and until such deference from courts is forthcoming, universities should rely on the Supreme Court’s safe harbor by aggressively pursuing viable race-neutral alternatives with promising outcomes.