In the U.S. Supreme Court’s June 24 Fisher v. Texas decision, the court reaffirmed the constitutionality of affirmative action. The 7-1 majority decision specifically states that “the attainment of a diverse student body is a constitutionally permissible goal for an institution of higher education” and that “racial classifications are constitutional if they are narrowly tailored to further [this] compelling governmental interest.” At the same time, the decision narrows a public university’s ability to use race-conscious policies to pursue racial diversity, by mandating that a university first exhaust all “nonracial” methods for promoting diversity and only turn to race-conscious policies after finding that “no workable race-neutral alternative would produce the educational benefits of diversity.” In short, racial diversity is upheld as a value at the same time that an additional hurdle is imposed on effectively pursuing it.

In the aftermath of the court’s decision, those committed to inclusive and democratic education and societies will now be obligated to first explore “race-neutral” alternatives such as “pipeline” projects that seek to mentor younger students in preparation for their application to universities, socio-economic based affirmative action and other polices using proxies for race-based stratification. Unfortunately such endeavors are too expensive for many under-resourced institutions to use effectively. Moreover, even the marginal success of such programs fails to address what race-based affirmative action usefully confronts head on — the operation of unconscious discrimination.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]