Remedying Race-Based Decision-Making: Reclaiming the Remedial Focus of Affirmative Action after Fisher v. University of Texas at Austin

Abstract

In the aftermath of Fisher v. University of Texas at Austin, in which the Supreme Court added a wrinkle to a college or university’s ability to pursue educational diversity through a race-conscious admissions policy, American schools have been left with a tentative legal underpinning for their affirmative action programs. In light of the uncertainty created by Fisher, this Comment seeks to inject some perspective into the debate and to provide colleges and universities with another potential foundation upon which to pursue a race-conscious admissions policy. Specifically, this Comment argues: (1) that the Supreme Court’s articulation of racial discrimination as “race-based decision-making” encompasses many forms of unequal treatment likely experienced by a Black college applicant during his or her educational career; and (2) that the Court’s race-conscious remedy jurisprudence permits a school to account for the presence of the resultant discriminatory effects in its applicant pool.