A majority of the discussion surrounding the Fisher III decision is focused upon what implications it has on affirmative action jurisprudence. Opponents of race-conscious admissions programs argue that Fisher III effectively raises the standard and makes strict scrutiny truly strict. Proponents, on the other hand, argue that the Court’s decision in Fisher III did not have a tangible effect on the court’s analysis of racial considerations by University admission officers. Derek W. Black, in his article published in the Howard Law Journal in the winter of 2014, argues that Fisher did not actually changed the law, but was “important for a far more subtle reason: it represents the continuing triumph of form over function in race cases…” By “form over function”, Black means that the court is more concerned with the way race is used rather than how the program actually works or the actual results that are achieved. While the Court objects to formalistic uses of race that have
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While this strategy has worked thus far, at least since Grutter upheld Justice Powell’s plurality opinion as expressed in Bakke , John V. Wintermute, in his 2014 Comment published in the Seton Hall Law Review, seeks to comment on the uncertainty left following the Fisher III decision, and “to provide colleges and universities with another foundation upon which to pursue a race-conscious admissions policy.” In particular, he argues that many forms of unequal treatment experienced by a number of black college applicant’s in the course of education falls within “the Supreme Court’s articulation of racial discrimination as ‘race-based decision-making’” and that schools may be able to account for the discrimination faced by members of their applicant pool pursuant to the race-conscious remedy jurisprudence established by the Supreme
While this strategy has worked thus far, at least since Grutter upheld Justice Powell’s plurality opinion as expressed in Bakke , John V. Wintermute, in his 2014 Comment published in the Seton Hall Law Review, seeks to comment on the uncertainty left following the Fisher III decision, and “to provide colleges and universities with another foundation upon which to pursue a race-conscious admissions policy.” In particular, he argues that many forms of unequal treatment experienced by a number of black college applicant’s in the course of education falls within “the Supreme Court’s articulation of racial discrimination as ‘race-based decision-making’” and that schools may be able to account for the discrimination faced by members of their applicant pool pursuant to the race-conscious remedy jurisprudence established by the Supreme