Rebecca K. Lee

Document Type




The Supreme Court’s decision on race-conscious affirmative action in Fisher, along with the Fifth Circuit’s ruling in Fisher on remand, importantly preserves the validity of affirmative action programs in state decisionmaking if the programs meet certain criteria under strict scrutiny and satisfy full judicial review. Although Fisher arose in the higher education context, its application extends to the public setting more generally and thus would also apply to the public sector workplace under the Constitution, making it permissible for public sector employers to use race-conscious affirmative action in hiring and promoting employees. The approach taken in Fisher also provides relevant considerations for private sector employers who pursue affirmative action under Title VII, even if indirectly. Private sector employers can still look to Weber and Johnson in proceeding with affirmative action programs that consider race or gender; moreover, to further bolster their use of race in the wake of the Supreme Court’s decisions in Fisher and Grutter, they would be wise to also take note of the Court’s recent views concerning the evidentiary requirements needed to uphold such programs in the public sector.



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