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Abstract

Universities’ use of race as a factor in their admissions decisions has been a divisive issue both in the legal system and in political discourse. Opponents of affirmative action have challenged racial preferences in public university admissions under the Equal Protection Clause of the Fourteenth Amendment. Individuals who find themselves denied a coveted seat in a university class and suspect that racial preferences are to blame will often challenge their rejection as a denial of their state’s “equal protection of the laws.” The United States Court of Appeals for the Fifth Circuit recently considered whether the University of Texas at Austin’s use of race as a factor in its admissions system denied two white applicants, who were refused admission to the university, equal protection under the Fourteenth Amendment. Fisher is only the latest chapter in a long and complex history of jurisprudence regarding the use of race in college admissions. Although this full and rich history has received generous and thorough treatment from hundreds of scholars, this Note will consider only the two most recent cases regarding race-conscious admissions: Grutter v. Bollinger and Parents Involved in Community Schools v. Seattle School District No. 1 (Parents Involved). Whereas Grutter permitted race-consciousness within certain generous parameters, many scholars have expressed concern that Parents Involved, which restricted racial preferences by public secondary charter schools, may signal that the current Supreme Court has grown increasingly reluctant to continue its typical deference to affirmative action efforts in higher education. This Note will focus on the second prong of typical strict judicial scrutiny of racial classifications. The Supreme Court has held that, “racial classifications . . . must serve a compelling governmental interest, and must be narrowly tailored to further that interest.” This Note will focus on the second prong of this test: whether the University of Texas at Austin’s use of race is narrowly tailored enough to pass constitutional muster.

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