So what is the proper test and what does all of this mean for affirmative action? We'll get into all of that after the jump:
STRICT SCRUTINY EXPLAINED
The infamous test that the Justices were talking about here is known as "Strict Scrutiny." It is a test that the Supreme Court first came up with in 1938 in what most law students will certainly agree is the most memorable footnote from all 3 years of law school: US v. Carolene Products' infamous "footnote 4". In a nutshell, what footnote 4 said was that the Court should apply heightened levels of scrutiny whenever government actions or laws affect underrepresented minorities. The Strict Scrutiny test was first used in the affirmative action context in the 1978 landmark case Regents of University of California v. Bakke which ruled that quotas do not pass Strict Scrutiny.
Whenever a state makes a law or takes any action that affects people on the basis of race it triggers the Equal Protection Clause of the 14th Amendment. When that happens, the Supreme Court (and all federal courts) must apply the Strict Scrutiny test. In order for a state law or a state action to pass Strict Scrutiny, it must meet the following 3 factors:
- The state must show that it has a "compelling government interest" for using race in the first place
- The state's actions must be "narrowly tailored" to meet that compelling government interest; and
- The state must show that those narrowly tailored actions are the "least restrictive means" for achieving the compelling government interest
It is a very tough test to pass and most schools do not make it.
|Justice Anthony Kennedy|
|Justice Ruth Bader Ginsburg|
Accordingly, I would not return this case for a second look. As the thorough opinions below [at the 5th Circuit and at the district court] show, the University's admissions policy flexibly considers race only as a "factor of a factor of a factor of a factor" in the calculus; followed a yearlong review through which the University reached the reasonable, good faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student-body diversity; and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University's educational objectives.
|Justice Scalia (left) and Justice Thomas (right)|
As should be obvious, there is nothing "pressing" or "necessary" about obtaining whatever educational benefits may flow from racial diversity...Unfortunately for the University [of Texas], the educational benefits flowing from student body diversity -- assuming they exist -- hardly qualify as a compelling state interest. Indeed, the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950's, but emphatically rejected by this Court. And just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then, the alleged educational benefits of diversity cannot justify racial discrimination today.
In short, this fight is not over and we will have to wait and see how the 5th Circuit decides this case now that they have today's decision from the Court.