Fisher v. Texas and the Irrelevance of Function in Race Cases

This symposium paper analyzes Fisher v. Texas in the context of the Supreme Court\u27s overall race jurisprudence, demonstrating that the Court\u27s decisions are driven by the form that considerations of race take rather than how those considerations actually operate. The University of Texas admissions plan, when compared to the admissions plan approved at the University of Michigan Law School in Grutter v. Bollinger, is very narrowly tailored. The University of Texas considered race in a smaller portion of admissions decisions and in a more limited way, even when race was considered. The Supreme Court, however, expressed serious skepticism of the plan, ignoring these functional distinctions. The paper also emphasizes that the Court\u27s formalistic approach to racial considerations works to the disadvantage of minorities in non-affirmative action cases, particularly those cases in which minorities must demonstrate intentional discrimination to challenge racial inequalities