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Last modified: Monday, June 24, 2013

IU legal experts available to comment on Fisher v. University of Texas decision

June 24, 2013

BLOOMINGTON, Ind. -- Indiana University legal experts are available to comment on today's U.S. Supreme Court decision in Fisher v. University of Texas, a case that challenged the consideration of race in higher-education admissions decisions. The court sent the case back to the Fifth Circuit Court of Appeals for reconsideration, insisting the appellate court apply a stricter standard in deciding whether the university's admissions plan was appropriate.

No immediate impact

Kevin Brown, a professor at the Indiana University Maurer School of Law, says the Supreme Court's decision is likely to have little impact on how affirmative action functions in higher education.

"The court remanded the case to the lower courts to consider whether the use of race and ethnicity by the University of Texas is narrowly tailored to the benefits of diversity," Brown said. "In so doing, the court reaffirmed its position that race and ethnicity can be considered as factors in the admissions process of selective higher education programs. However, the court did indicate that on remand the lower court needs to consider whether race-neutral means can provide the University of Texas with enough underrepresented minorities that it will not need to consider the use of race."

Brown is the Richard S. Melvin Professor of Law at the Maurer School. To speak with him, contact Ken Turchi at 812-856-4044 or

Not the last word

Today's decision probably isn't the Supreme Court's final word on the Fisher case, says Beth Cate, an associate professor in the IU School of Public and Environmental Affairs. But while schools wait for the outcome, they are likely to look for ways to narrow their use of race in admissions.

"If the University of Texas plan survives a second time at the Fifth Circuit using the stringent standard announced today, it seems likely the Supreme Court will take the case up again, unless another case emerges first as a better vehicle for the court to weigh in on the future role of race in admissions," Cate said. "Also, today's decision will fuel further legal challenges to race-conscious admissions programs. To prepare for this, I suspect schools will be looking to gather as much 'hard' evidence as possible of the educational benefits that flow from having racial diversity as a component of overall diversity."

Notably, Cate said, the Supreme Court observed in its Fisher decision that higher percentages of African-American and Hispanic students were admitted to the University of Texas under the state's Top Ten Percent plan than under a later system that expressly took race into account.

"So, it may well be that the use of race in admissions decisions won't survive in the face of a so-called 'race neutral' approach," she said. "This in turn may mean that today's opinion -- and the fact that the court will review next term a Sixth Circuit decision striking down Michigan's ban on the use of race in admissions -- serve as signals to state politicians looking to end the use of race in admissions, as much as to schools."

To speak with Cate, contact Jim Hanchett at 812-856-5490 or

Alternative approaches may do more for minority students

David Orentlicher

David Orentlicher

Print-Quality Photo

Public universities may steer away from race-based admissions as a result of the "strict scrutiny" standard required by the court's decision. But if they do, minority students may be better off as a result, says David Orentlicher, a professor in the IU McKinney School of Law in Indianapolis.

"Traditional affirmative action policies can promote diversity at universities and remove obstacles to higher education for minorities," Orentlicher said. "But alternative policies may be able to do much more. Indeed, race-neutral diversity policies could do much to narrow the achievement gap for minorities in K-12 education as well."

Orentlicher is the Samuel R. Rosen Professor of Law at the McKinney School, which is on the campus of Indiana University-Purdue University Indianapolis. He can be reached at 317-658-1674 or