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Abstract

Many expected Fisher v. University of Texas at Austin (Fisher I), 133 S. Ct. 2411 (2013)—an appeal from the Court ofAppeals for the Fifth Circuit upholding the University of Texas at Austin's race-conscious admissions program—to sound the death knell for race-based affirmative action in higher education. Instead, in remanding the case back to -the Fifth Circuit, the Supreme Court of the United States upheld the consideration of race in college admission programs, so long as such use could satisfy strict scrutiny. Nonetheless, Fisher I concerned academics and practitioners with its potentially limiting language, leaving the future of race-based aftirmative action programs uncertain. When the Fifh Circuit again held the University of Texas at Austin's race-conscious admissions program was constitutional, the Fisher found its way back to the Supreme Court.

Oral arguments for Fisher v. University of Texas at Austin (Fisher II), 136 S. Ct. 2198 (2016) revived concern for the abolition of race-based affirmative action policies in the United States. In ruling, however, the Supreme Court again upheld the constitutionality of race-based affirative action programs in higher education, this time also explicitly approving of the program used by the University of Texas at Austin. Although the decision was hailed as a great victory for proponents of affirmative action—and it was—this Note argues Fisher II's admittedly great precedential value is weakened by the case's failure to confront certain legal fictions enveloping the law of affrmative action. Specifcally, this Note argues it is time for the Court to disregard false equivalences between positive and negative racial preferences, recognize the problems associated with the generalized grievances alleged by opponents of affirmative action, and permit universities even greater discretion to explicitly consider flexible racial quotas in their admnission programs.

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