Desperately Seeking Scrutiny: Why the Supreme Court Should Use Fisher v. University of Texas to Restore Meaningful Review to Race-Based College Admission Programs

Abstract

Grutter was wrongly decided because a state’s interest in securing the benefits that flow from a diverse student body is not sufficiently compelling to justify state-sponsored racial and ethnic discrimination. This article takes a methodical approach to arrive at this conclusion. It begins with an abbreviated primer on the rise of strict scrutiny as a jurisprudential tool for analyzing state action, focusing on the compelling interest prong of that test. Having thus established a lens from which to view a state’s offered compelling interest, Parts III and IV demonstrate how Grutter fails to follow the established framework for equal protection. Both Parts III and IV attack the Grutter Court’s finding that universities have a compelling interest in achieving a diverse student body, but from different perspectives. The former disputes the Court’s finding that the benefits that flow from a diverse student body is sufficiently compelling to justify race-based classifications, whereas the latter details the Grutter Court’s failure to consider the substantial costs that accompany race-based classifications. After determining that the Grutter Court’s compelling interest holding cannot be logically defended on traditional equal protection grounds, Part V rejects any attempt to save Grutter under principles of stare decisis.

Keywords: Fisher v. University of Texas, University of Texas at Austin, University of Texas, race, discrimination, equal protection, Grutter, Grutter v. Bollinger, equal protection clause, fourteenth amendment, proposition 209, strict scrutiny, compelling interest, stare decisis, Supreme Court, preferences