After Schuette was argued, I queried how, if at all, Fisher v. University of Texas, Austin would be cited. The answer? Not much.
Before the Court addresses the question presented, it is
important to note what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. The considera- tion of race in admissions presents complex questions, in part addressed last Term in Fisher v. University of Texas at Austin, 570 U. S. ––– (2013). In Fisher, the Court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met. In this case, as in Fisher, that principle is not challenged. The question here concerns not the permissi- bility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.
Read the bold sentence again. That seems to say that Fisher did not challenge the principle that “consideration of race in admissions is permissible, provided that certain conditions are met.” I suppose that is true in a narrow sense, but Fisher greatly limited the number of conditions that could justify the use of race.
Update: Justice Sotomayor cites Fisher much more broadly in her dissent:
hese statistics may not influence the views of some of my colleagues, as they question the wisdom of adopting race-sensitive admissions policies and would prefer if our Nation’s colleges and universities were to discard those policies altogether. See ante, at 2 (ROBERTS, C. J., concur- ring) (suggesting that race-sensitive admissions policies might “do more harm than good”); ante, at 9, n. 6 (SCALIA, J., concurring in judgment); Grutter, 539 U. S., at 371–373 (THOMAS, J., concurring in part and dissenting in part); id., at 347–348 (SCALIA, J., concurring in part and dissent- ing in part). That view is at odds with our recognition in Grutter, and more recently in Fisher v. University of Texas at Austin, 570 U. S. ___ (2013), that race-sensitive admis- sions policies are necessary to achieve a diverse student body when race-neutral alternatives have failed. More fundamentally, it ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.