For over thirty-five years, the Supreme Court has grappled with the controversial issue of affirmative action and race preference. Beginning with Justice Lewis Powell’s influential opinion in Bakke v. U. Cal. Davis in 1978, leeway has been permitted for admissions policies that take account of race, as long as it is not given determinative weight so as to exclude consideration of nonminority candidates, or used to set quotas. As the Court has become increasingly conservative, however, its license for race preference has tightened considerably, and it has become receptive to “reverse discrimination” plaintiffs challenging such policies in universities and the workplace.
Grutter v. Bollinger (2003) purported to immunize good faith race-conscious university admissions for a period of twenty-five years, but with the retirement of its author, Sandra Day O’Connor, the Court chose to revisit the matter in Fisher v. University of Texas, decided on June 24. While remanding to the lower courts without a definitive ruling on UT’s program, it is the contention of this article that the decision may well seal the fate of race-sensitive decision-making by public actors. Seven justices, over the dissent of Ruth Bader Ginsburg, sign onto an exacting strict scrutiny standard of review anachronistically borrowed from cases challenging pernicious discrimination motivated by a desire to exclude and subjugate disfavored groups. This “searching” examination, which treats affirmative action in the interest of diversity as inherently suspect and presumptively unlawful, is unjustified legally and unwise as a matter of policy. Implicitly, the Court adopts a paradigm of white male victimhood, which has turned anti-discrimination provisions on their head.
The article also challenges the contention that affirmative action inevitably sacrifices “merit” to preference, by confronting the misconceptions regarding merit, and particularly the glorification of standardized testing
