The United States Supreme Court and affirmative action: A critical race, black feminist theoretical and textual analysis




Henderson, Sharon Moore

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Fisher vs. University of Texas was heard before the United States Supreme Court twice: in the October 2012 term (Fisher I) and the October 2015 term (Fisher II). Abigail Noel Fisher and Rachel Multer Michalewicz filed suit against the University of Texas at Austin (UT) claiming that they were denied admission to the University based on their race. Both are white and female. Michalewicz dropped out of the suit after the Texas Fifth District Court of Appeals ruling. Fisher continued participating in the litigation. Fisher sued for equal protection as stated in the 14th Amendment of the United States Constitution. The question I immediately asked myself is whether there are racial considerations in the University’s admission process that would have caused Fisher’s application not to be selected? If so, did racial considerations result in her not gaining admission?

My hypothesis was that the Supreme Court was on the cusp of ending affirmative action in education. The research reported on in this thesis suggests that the Court was not seeking to end affirmative action, but seeking to maintain it. This thesis also shows that the litigants in the bulk of the affirmative action suits that made it before the United States Supreme Court are white women. Fisher led me to review Bakke, Grutter, Gratz, and Hopwood, as they were cited as precedent- setting cases in the Fisher ruling. Thus, it’s not Fisher, alone, that raises a question about the role of gender in affirmative action litigation. It’s also Grutter, Gratz, and Hopwood, all of which include female plaintiffs. The only major case with a white male plaintiff is Bakke. The legal petition filed by Fisher leaves plenty of room for debate and analysis. Thus, I explored some of the arguments in the aforementioned legal cases using Critical Race and Black Feminist theories to understand Fisher generally, but affirmative action more specifically.



Social sciences, Affirmative action, Critical feminist theory, Critical race theory, Intersectionality, United States Supreme Court, Women's studies