Review the University of Michigan affirmative action cases and the most recent decision on affirmative action Fisher v. University of Texas at Austin.
Do you think future affirmative action review can survive strict scrutiny review by the federal court?
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If I had to guess, I would guess that affirmative action programs will not survive strict scrutiny. However, this is just an opinion, and no one can know what the Court will actually decide.
In 2003, the Court decided the Gratz v. Bollinger case about the University of Michigan’s affirmative action program. They held that diversity can be a “compelling state interest” but they also held that Michigan’s particular affirmative action was not “narrowly tailored” to achieve this interest. Ten years later, the Court decided Fisher v. University of Texas. In that case, they held that affirmative action programs must be considered under strict scrutiny, requiring them to pursue a compelling state interest and saying they must be “precisely tailored” to achieving that interest.
It seems likely that the four liberal justices will find that affirmative action programs do meet these requirements. All that is left, then, is to see whether Justice Kennedy and/or Roberts will agree with them. If Kennedy does so, it will probably be because he actually thinks that affirmative action programs are constitutional. If Roberts sides with the liberals, it will be because he thinks that it is the best thing for the Court (so that it does not expose itself to too much controversy). I personally do not think either of these is likely.
My prediction is that the Court will overturn affirmative action on the grounds that the programs are not precisely tailored. I predict that it will say that affirmative action helps all minorities, regardless of whether they need the help and that the goal of diversity would be better served by programs that look at factors other than race. Of course, I have no inside knowledge of the thinking of any of the justices and I am just speculating. There is no way to know for certain how the Court will rule.
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