A Chance to Repair the Law

You probably already know that the Supreme Court agreed to allow review Students for Fair AdmissionsHarvard and Harvard’s companion case Students for Fair Admissions in North Carolina. Most likely, arguments will be heard by October.

Both cases concern race-preferential admissions policies. Both cases concern race-preferential admissions policies. HarvardThis case focuses on the particular treatment of Asian Americans.

Do I think Lucy is being too naive to not grab the football this time?  Maybe.  Of course, there is always hope so I anticipate some win for SFFA.

The “law” as it stands today is in serious need of … uh … clarification. There are many in. Grutter v. BollingerThe University of Michigan Law School’s race-preferential admissions policy was upheld by the Court in 2003. However, it did so in a unique way. A 5-4 vote ruled that it was in agreement with students who had petitioned the school to stop discrimination based on race. It was obvious that this was true. Therefore, it agreed to apply strict scrutiny. So far, so good. The Court changed its mind and DeferredThe University of Michigan’s decision on diversity being a “compelling concern”

O my. Deference? Deference is the opposite to strict scrutiny. This is the whole purpose of strict scrutiny. Courts are not to defer state officials engaged in race discrimination. The court is supposed to make a thorough inquiry into whether there is an underlying compelling interest being served, and if the policy or law discriminatory is tailored in a narrow way to that end.

Imagine the Court waiting to hear your case Brown v. Board of Education (1954). There were many experts who could testify at the time that segregated schools are better for students.

Strenuous scrutiny should be held to such a high standard that Gerald Gunther (one of the most prominent constitutional scholars in that time) called it “strict, in theory, but fatal in practice.” Following GrutterIt was an indifference tiger.

Fisher v. University of Texas (2013)The 7-1 majority appeared to know that the “GrutterThe Court’s earlier equal protection jurisprudence was incompatible with “deference”. The Court decided to abandon the precedent, however. Grutter The strict scrutiny prong would require that deference be applied to only the “compelling curiosity” and not to “the narrow tailoring prong.”

Different standards don’t apply to the same prongs. Be aware Korematsu v. United StatesAs an example, take the 1942 Japanese internment case. The compelling interest can be described as “national security,” but this is not the case. It is too abstract to make any practical sense. Is it possible to remove all Japanese citizens living west of the coast, along with their children and grandchildren? (This includes many American citizens).

However, if you think of the compelling interest as the need to expel all Japanese nationals who live on the west coast along with their families and children (including many American citizens), then it is clear that the work has been completed.

The majority of punters want to bet in, but alas! Grutter It lacks the will to make it right. Fisherhas increased the level of strict surveillance at an extremely basic level.

(As soon as I can, I will blog about why I think it is better to defer to). Public opinionBut only when the entity opposes discrimination based on race, and not when they favor discrimination based on race.   It’s difficult to comprehend why the Court would ever permit a government entity, or in Harvard’s case an entity legally bound to adhere to the constitutional standard to drag the country along with racially discriminatory policies. The public may be against race discrimination, but it is difficult to argue that it is necessary.’s first article was entitled A Chance to Repair the Law