On December 10, the Supreme Court justices heard the arguments in the Fisher affirmative action case. In assessing the prospects for the case, many analysts hinge their views upon the willingness of the Court (or Justice Kennedy alone) to really employ “strict scrutiny” to the racial preferences used by the University of Texas. The majority previously held that the lower court had failed to exercise “strict scrutiny” in evaluating the university’s admissions policy–it hadn’t used racial preferences in a “narrowly tailored” way.
The problem is that “strict scrutiny” is an imprecise legal concept that can mean different things to different jurists. And even if a jurist says he looked at the challenged conduct with such scrutiny, it’s still quite possible that he’ll come up with a weak, split-the-baby kind of remedy.
Those thoughts are the basis for my recent SeeThru piece.
The inspiration for it came from SIU history professor Jonathan Bean, author of a splendid book on the big topic of Race and Liberty in America.
He argues that we are unlikely ever to rid ourselves of the folly of racial preferences so long as the litigation centers on the 14th Amendment, with its unfortunate balancing tests, such as whether there is some “compelling governmental interest” sufficient to outweigh the harms. Bean would rather see cases grounded on the clear, nondiscriminatory language of the Civil Rights Act of 1964.
Since it is very unlikely that the Court will finally pull the plug on racial preferences in its Fisher decision, there will be more cases fought over this issue. It would be fascinating to see how things would turn out if the next plaintiff (perhaps a superlative student kept out of a school like UT due to his Korean ancestry) argued that the university’s policy was illegal under the Civil Rights Act.