Empirically Derived Compelling State Interests in Affirmative Action Jurisprudence

Abstract

In the 2013-14 term, the U.S. Supreme Court will consider the legality of a Michigan Constitutional amendment banning affirmative action. Traditionally, educational diversity has been the only compelling state interest that satisfies strict scrutiny in affirmative action challenges. This Article provides additional support for the interest of educational diversity, and proposes three additional compelling state interests for courts to consider. Support for these compelling state interests comes directly from detailed quantitative and qualitative analyses of empirical data collected from Michigan Law students, relating to their preferences for diversity, perceptions of campus climate, and professional aspirations. These findings indicate that educational diversity should remain a compelling state interest, and that courts should also consider the importance of (1) avoiding racial isolation, (2) promoting service to underserved communities, and (3) facilitating diversity in American leadership.

Keywords: strict scrutiny, empirical research, affirmative action, diversity, compelling state interest

JEL Classification: K19, K39