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SCOTUS Review: Fisher v. University of Texas (Fisher II)

(960 reviews)

Produced on September 19, 2016

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Course Information

Course Description

In a 4-3 decision, the U.S. Supreme Court upheld the constitutionality of the holistic race-conscious admissions program at the University of Texas at Austin in Fisher II. Under that program, Texas graduates in the top 10 percent of their high school class are guaranteed admission to the state's public university system. The top 10 percent plan accounts for approximately 75% of the students admitted to UT each year. The remaining applicants are evaluated under a holistic admissions program which considers race among a number of factors. In 2012, the Supreme Court held in Fisher I that strict scrutiny requires the university to demonstrate that its use of race in college admissions serves a compelling state interest and is narrowly tailored to achieve those end and that the university is not entitled to deference on the question of narrow tailoring.   

In Fisher II, the Supreme Court concluded that the university articulated a set of concrete and precise goals associated with the educational benefits of diversity: ending racial stereotypes, promoting cross-racial understanding, preparing students for an increasingly diverse workforce and society, and cultivating leaders with the legitimacy in the eyes of the general public. Moreover, the Supreme Court found that the university provided reasoned, principled explanations for its decisions. By affirming the Fifth Circuit decision, the Supreme Court upheld the race-conscious aspect of the university's admissions policy as satisfying the stringent strict-scrutiny standard of review.

How does Fisher II inform the strict scrutiny analysis and the Court's equal protection jurisprudence? This session will address the implications of Fisher II for race conscious admissions plans in higher education more specifically, as well as for race conscious policies more generally.

Learning Objectives:

  1. Review the evolution of Equal Protection jurisprudence and the analysis of strict scrutiny from Bakke to Gratz/Grutter to Hopwood and Fisher I and Fisher II
  2. Assess what strict scrutiny means post Fisher II
  3. Identify what colleges and universities must do in order to demonstrate or document that their race-conscious admissions plans are sufficiently narrowly tailored and what objective criteria might be used in order to assess progress toward achieving the educational benefits of diversity
  4. Evaluate what it means to admit a "critical mass" of underrepresented students, the role of intra-racial diversity, and the extent to which empirical data can and should be used to assess these concepts

Credit Information

This course is pre-approved for CLE credit in the following states. If your state is not listed, contact support for more information on how to receive credit


Brenda Shum

Lawyers' Committee for Civil Rights

Brenda Shum is director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law where she oversees litigation designed to guarantee that all students receive a quality education in public schools and institutions of higher learning, and to eliminate discriminatory practices in school discipline, school funding and special education.

In the wake of the 2007 Parents Involved decision, the Educational Opportunities Project has also taken a leading role in developing strategic ways to implement constitutionally permissible school assignment plans which value diversity in K-12 schools. Brenda works closely with other civil rights advocates to challenge legislators and the Administration to ensure that national education policy reflects a genuine commitment to the success of poor and minority students. Brenda oversees the Parental Readiness and Empowerment Program (PREP), which promotes parental involvement in education as a means to narrow the achievement gap between low-income, minority students and their more affluent, non-minority peers.

She graduated with honors from Lewis and Clark College and received her JD from the University of Washington School of Law. Before joining the Lawyers’ Committee, Brenda was a Lecturer and Clinical Instructor at the Youth and Educational Law Project at Stanford Law School, which works with disadvantaged youth and their communities to ensure access to equal and excellent educational opportunities. She supervised law students on special education and school discipline cases, as well as a myriad of policy research and advocacy efforts related to school funding, equal access to educational resources, access to mental health services and commercialism in the schools.

Prior to teaching at Stanford, Brenda was a project director at the American Bar Association Center on Children and the Law where she provided training and technical assistance to judges, lawyers and social workers on child welfare issues. She worked to introduce best practices to juvenile court systems to reduce the amount of time that children spend in foster care.

Brenda has presented at state and national conferences on issues relating to state and federal child welfare law, courtroom testimony, and cross-system collaboration; and evaluated the administration of justice in abuse and neglect cases. She began her legal career as a staff attorney at the Juvenile Rights Project, the only law firm in Oregon dedicated exclusively to the representation of children. As a children’s attorney, she represented abused and neglected children in juvenile dependency cases, defended youth charged with law violations in juvenile and adult court and provided educational advocacy for students with disabilities.

Brenda has volunteered extensively to address poverty and disability issues and has served on the Board of Directors for Bradley Angle House, a domestic violence organization in Portland, Oregon, and Real Options for City Youth (ROCK), a youth empowerment organization in San Francisco.


Geoffrey K.

Very good program and excellent materials.

Raymond K.

The coverage was comprehensive.

Amanda H.

very solid, compelling analysis

Susan T.

I appreciate the convenience of Lawline

Laurie B.

Very helpful.

Jake R.

Well-organized and easy to understand overview of this important area of the law.

Michael S.

Very good. Complex issue to present in a short time.

Andrew W.

interesting history of affirmative action cases

Margarita T.

great topic!

Barbara S.

Very professional delivered and legally pertinent information.

Mary N.

Excellent. Really interesting topic

Thurman W.

good review of SCOTUS precedent in these cases.

Valerie T.

Very informative

Donna T.

Excellent presentation, very informative.

Charles B. N.

Very informative. Excellent presenter.

arthur f.

useful inclusion of other historical cases

Anthony N.

Very good discussion of the various, and often competing, factors involved in "affirmative action" cases.

shirley v.


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