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The Inevitable Irrelevance Of Affirmative Action, Leslie Y. Garfield
The Inevitable Irrelevance Of Affirmative Action, Leslie Y. Garfield
Elisabeth Haub School of Law Faculty Publications
This article proceeds in three parts. In Part I of this article, I provide a narrative of affirmative action jurisprudence in higher education, with a particular focus on the meaning of viewpoint diversity in higher education. This section tracks the definitional shift in preference policies from their original design as remedial and compensatory programs for those suffering the effects of educational discrimination to interest convergence programs, which assure equal benefits irrespective of race. In Part II, I explore the circumstances giving rise to Fisher, including an overview of the lower court decisions. This section presents a discussion of the likely …
Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz
Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz
Articles
Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of …