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Abstract

In Fisher v. University of Texas at Austin, the United States Supreme Court affirmed well-established Supreme Court doctrine that race may be considered when a college or university decides whom to admit and whom to reject, as long as the consideration of race is part of a narrowly tailored holistic consideration of an applicant's many distinguishing features. The Court's latest decision heralds a new way of thinking about holistic race-conscious admissions programs. Rather than considering them as "affirmative action" plans that prefer any one applicant to the disadvantage of another, they should be viewed as the Court has described them, as holistic plans that are "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration," consistent with the Equal Protection Clause of the Fourteenth Amendment. Applying the "searching examination" that the Court defined and required in its first consideration of the case, the Court in its second review again confirmed that universities may include race in a holistic consideration of each applicant's potential to contribute to their university communities. Despite appearing to limit the reach of the decision by describing the case as "sui generis" litigated in such a way as to "limit its value for prospective guidance," the Fisher decision affirms what the Supreme Court acknowledged in 1978 and established in 2003 that race may be considered as part of a narrowly tailored holistic consideration of the characteristics and traits of each applicant. Properly understood as treating the traits of all applicants "on the same footing," race-conscious plans should be embraced, not limited, because they are consistent with the Court's now settled law and may be broadly used to achieve the well-established interests of student body diversity in this country's colleges and universities.

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