Constitutional Law: Forecasting the Sunset of Racial Preferences in Higher Education While Broadening Their Horizons

14 Pages Posted: 3 Sep 2010

Date Written: February 1, 2004

Abstract

In this case comment, I analyze the Supreme Court's decision in Grutter v. Bollinger, 539 U.S. 306 (2003), and argue that the Grutter Court reinterpreted the importance of race and ethnicity in university admissions beyond what Justice Powell contemplated in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). As such, the Grutter Court ignored the distinction between the presence of minorities on campus and the extent to which those students contribute to academic discourse in the classroom. Indeed, I suggest that the Grutter Court implicitly determined that the educational benefits that are derived from race-conscious admissions policies are purely aesthetic and non-substantive. Thus, I argue that viewpoint diversity has been tenuously defined exclusively in terms of racial diversity.

Moreover, I contend that the Grutter Court's diversity pronouncements undermine strict scrutiny review under the Fourteenth Amendment. As a result, it becomes much easier for institutions to embrace race-based classifications that will survive any challenge in the courts. Ultimately, I contend that the Grutter Court, while forecasting the demise of racial preferences, ultimately broadens their application by encouraging greater proliferation and ensuring constitutional protection.

Keywords: Affirmative action, Fourteenth Amendment, strict scrutiny, education, Grutter v. Bollinger

Suggested Citation

Caplen, Robert A., Constitutional Law: Forecasting the Sunset of Racial Preferences in Higher Education While Broadening Their Horizons (February 1, 2004). Florida Law Review, Vol. 56, No. 4, pp. 853-865, 2004, Available at SSRN: https://ssrn.com/abstract=1670280

Robert A. Caplen (Contact Author)

Hunton & Williams LLP ( email )

United States
202-955-1677 (Phone)

HOME PAGE: http://https://www.hunton.com/en/people/robert-caplen.html

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