In Grutter v. Bollinger,1 the Supreme Court identified a compelling interest in diversity in higher education. By so doing, the Court sanctioned a new vehicle for universities endeavoring to use race as a (determinative) criterion in university admissions.2 Recently, the Fifth Circuit Court of Appeals heard a challenge to the University of Texas at Austin's (University) admission policy challenging that University's use of race in selecting its students.3 In Fisher v. University of Texas at Austin, the Fifth Circuit held that the University's use of race in selecting its students, which closely mirrored the system held constitutional in Grutter, was also constitutional.4
Fisher has piqued the interest of the legal community. The University, the largest and (arguably) most prestigious public school in Texas,5 has vigorously defended its decision to use racial classifications for selecting its students.6 The plaintiffs, two white female applicants who were denied admission,7 have been represented by nationally-recognized attorneys out of Washington, D. C.8 Moreover, at this intermediate appellate stage, numerous amicus briefs were filed supporting both sides from national sources, including the Asian American Legal Foundation,9 National Association of Scholars,10 Center for Equal Opportunity,11 and Pacific Legal Foundation12 in support of the plaintiffs, and the NAACP,13 Black Student Alliance,14 American Association of State Colleges and Universities,15 and the Asian American Institute16 in support of the University (to name a few). Further, in a highly unusual move at the circuit stage, even the Obama Administration filed an amicus brief supporting the University.17
The implication of such a wide interest in the case is selfevident. Both proponents of racial classifications in university admissions, as well as opponents, view Fisher as having the potential seriously to affect the ability of universities to use race in admissions. While the plaintiffs are seeking review from an en banc panel of the Fifth Circuit at present,18 a petition for writ of certiorari to the Supreme Court is likely to follow.
Given the national interest in Fisher, this article will lay forth the constitutional issues at stake. Part I provides a history of Supreme Court precedent on racial classifications, focusing on the birth of diversity in constitutional law in Bakke,19 and culminating with the elevation of diversity's status to a compelling governmental interest in Grutter. Part II explains Fisher in detail, including the three separate opinions this highly contentious case produced. Part III shows the various ways Fisher can be constitutionally distinguished from Grutter, thereby demonstrating how the Supreme Court can overrule the Fisher Court without overturning Grutter. Part IV, however, advocates for a summary reversal of Grutter based on two serious constitutional implications of the Grutter Court's holding.
II. THE RISE OF DIVERSITY AS A COMPELLING INTEREST
Diversity as a compelling interest has a brief, singular appearance in the holdings of the Supreme Court.20 A proper understanding of the Grutter Court's compelling interest holding begins by looking at what did and did not amount to a compelling interest before Grutter. Before a court can begin to apply Grutter prospectively, it must first take a retrospective look at how Grutter arrived at its conclusion and what that conclusion means.
A. Regarding National Security and Past Discrimination
Amidst anti-Japanese sentiment, a World War Two Supreme Court was confronted with an extreme case of governmental discrimination in Korematsu v. United States.21 In Korematsu, the Supreme Court held that national security was a compelling government interest that allowed the United States government to exclude all persons of Japanese ancestry from military zones on the West Coast.22 While Korematsu today is rightly ridiculed for justifying internment of Japanese-Americans based on hysteria and xenophobia, the case remains noteworthy as the first Supreme Court decision to apply strict scrutiny under the Equal Protection Clause to racial classifications. …