The Court's superficial treatment of these questions reveals the profound weakness of its affirmative-action analysis.DIVERSITY AND REMEDIATION First, the plurality had imposed for validating them.
The Court's superficial treatment of these questions reveals the profound weakness of its affirmative-action analysis.DIVERSITY AND REMEDIATION First, the plurality had imposed for validating them.The Court reaffirmed this standard in the 2013 case, sending the case back to the lower court on the ground that those judges had failed to correctly apply the strict-scrutiny standard.
Of these conditions, a rigorous, individualized appraisal of an applicant's actual diversity value was the most important.
What the majority did not provide was a coherent account of the meaning of diversity value that went beyond general platitudes.
Nor did it explain why the Constitution allowed the law school to define the desired, favored diversity in narrow ethno-racial terms that excluded even most minorities (other than African-Americans, Native Americans, and the Spanish-surnamed) while treating other kinds of diversity as either much less weighty or wholly irrelevant to satisfying the overriding diversity rationale.
Indeed, as Justice Thomas pointed out in a footnote in his dissent, the school seemed not to value the additional diversity that black men, who are greatly under-represented relative to black women, would provide.
The framers of the 14th Amendment may have countenanced affirmative action favoring former slaves and perhaps their descendants, but they would never have approved of today's affirmative-action programs, in which most of the potential beneficiaries are immigrants or descendants of immigrants.
But regardless of whether such programs are constitutional or not, they are undesirable public policy, indeed perverse in practice.
LOOSE SCRUTINY The Court's jurisprudence regarding affirmative action in university admissions has taken shape through a series of cases stretching back to in 1978.
In that case, the Court allowed a university to consider race in medical-school admissions so long as it was only one of several factors, was used to advance student-body diversity, and there was no specific quota for admission.
But the Court has often held, most recently in (a laxness that has defined courts' attitudes to affirmative-action programs ever since) deviated radically from her own more rigorous approach to that test in earlier cases.
She finessed (or mischaracterized) five crucial questions that bear on affirmative-action policies: the nature of educational diversity; how educational diversity relates to both the "critical mass" idea at the core of Michigan's theory and the ethno-racial stereotypes that the school claimed to abhor; how the majority distinguished between valid and invalid preferences and how Michigan's program fared under that test; the existence of race-neutral alternatives; and the duration of preference policies.