DIVERSE? NOT DIVERSE ENOUGH? STUDENTS AT THE UNIVERSITY OF TEXAS AT AUSTIN.
not to the university itself to determine whether the university’s diversity program were consistent with the existing standard of strict scrutiny. It isn’t enough, Justice Kennedy wrote, that
the university may have established that its goal of diversity is consistent with strict scrutiny; the courts also need to examine whether the means chosen by the university to bring about diversity were “narrowly tailored to that goal,” and on that point, the university was to receive no defer- ence at all from the courts. In practice, according to Justice Kennedy’s
opinion, strict scrutiny means at the very least that a court must be satisfied that a university’s admissions process ensures that each applicant is evaluated as an individual and not in a way that makes his or her race or ethnicity “the defining feature of his or her applica- tion,” and also that the university needed to engage in some classification by race in order to achieve the diversity that it is trying to obtain, with all of the educational benefits of that diversity. If the university could have gotten to that diversity goal without invoking race, its diversity program fails under “strict scrutiny.” Tat is what is meant by “narrow tailoring.” Since the courts didn’t engage in these analy- ses in the Fisher case but simply accepted the
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university’s statement that it was acting in “good faith,” the Court sent the case back to the 5th Circuit for an explicit review of the university’s program under the “strict scrutiny” standard. Te initial response in the civil-rights and edu-
cation community to the ruling was more favorable than not. Long-time civil rights advocate Wade Henderson, president of the Leadership Conference on Civil and Human Rights, told the Huffington Post that the decision “is an important victory for our nation’s ongoing work to build a more inclu- sive, diverse America" and that the University of Texas’s policy “is a carefully crafted one that will ultimately be upheld by the Court of Appeals.” Similarly, Lee Bollinger, who is now president
of Columbia University and had been president of the University of Michigan during the Grutter and Gratz cases, told the same publication that “there were a lot of people who were very con- cerned about what this decision might portend for Bakke [the 1978 case that upheld the principle that diversity is a constitutionally permitted objec- tive for universities to pursue]. “Tis further settles the constitutionality and
legality of what we have been doing. Tat’s the most important practical effect,” said Bollinger.
SEPTEMBER/OCTOBER 2013 DIVERSITY & THE BAR®
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THE COURTS MUST DECIDE IF UNIVERSITIES' DIVERSITY PROGRAMS ARE NECESSARY.
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