Download this Paper Open PDF in Browser

The Inevitable Irrelevance of Affirmative Action Jurisprudence

35 Pages Posted: 11 Sep 2012  

Leslie Yalof Garfield

Pace University - School of Law

Date Written: September 10, 2012


When the Supreme Court decides Fisher v. Texas next term, which presents an Equal Protection challenge to the University of Texas’ race-preference admissions policy, the likely outcome is that it will not abolish affirmative action programs wholesale. Considering the present make-up of the Court, following Fisher, colleges, universities and graduate schools will remain free to pursue the Court’s previously announced goal of admitting individual students who as a group present a critical mass of diverse viewpoints. To meet this goal, schools must create programs that are narrowly tailored to achieve the compelling governmental interest in what has come to be considered viewpoint diversity; an assurance of otherwise under-represented voices in the classroom.

In many instances, accepting students who will lend a differing viewpoint to the classroom is contrary to the current trend among schools to pursue favorable national recognition from various news outlets, most notably U.S. News and World Report. The problem lies with consideration of underrepresented students, who generally apply to schools with academic test scores that are not competitive with their majority peers. The disparity among minority and non-minority applicant test scores means that admitting a significant number of minority students would result in a potential decrease in a school’s mean entering standardized test scores, a number which factors significantly into a school’s national rank. For the most part, institutes of higher education have become so consumed with the goal of achieving the highest possible ranking that they are uninterested in constructing constitutionally permissible race-preference admissions programs, even in light of the Court’s continued guidance on the matter.

Keywords: Affirmative Action, Equal Protection, Education, Race-Based Admissions Policies, Media, US News and World Report

Suggested Citation

Garfield, Leslie Yalof, The Inevitable Irrelevance of Affirmative Action Jurisprudence (September 10, 2012). Available at SSRN: or

Leslie Yalof Garfield (Contact Author)

Pace University - School of Law ( email )

78 North Broadway
United States

Paper statistics

Abstract Views