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Phi Beta Cons

The Right take on higher education.

Race-Neutral First



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The Chronicle of Higher Education has an interesting blog item today about a forthcoming article in The Catholic University Law Review by George LaNoue and Ken Marcus. The article argues that universities are not following an important part of the “narrow tailoring” requirements set out by the Supreme Court in the University of Michigan cases, namely, that before overt racial preferences can legally be used to achieve diversity, means that are facially race-neutral must be tried first.

In my humble opinion, since either approach is racially motivated, they both trigger “strict scrutiny” and, therefore, require the demonstration of a “compelling interest” that — pace the Supreme Court — is lacking. Still, I agree with the Court that, the more oblique the consideration given race, the better — and LaNoue and Marcus are certainly right that, as a legal matter, universities need to take this requirement more seriously than they are. 



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