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Somin Comments on SCOTUS Ruling Cited in Article

Comments made in a blog posting by Professor Ilya Somin are cited in a Salon article that discusses the possible impact of the Supreme Court's decision to send affirmative action case Fisher v. University of Texas at Austin back to the lower courts. 

In a 7-1 decision, the Court found that the 5th Circuit Court of Appeals improperly applied the "strict scrutiny" test in Fisher, giving undue deference to the "good faith of the University of Texas" when ruling in its favor.

While some proponents of affirmative action hailed the Court's actions as a victory, Somin argues that it is actually beneficial to the opponents of affirmative action.

"Until today, the conventional wisdom was that Grutter requires courts to give universities substantial deference in determining how much preference is needed to achieve a 'critical mass' of minority students diversity purposes. It will thus ratchet up the level of scrutiny applied to affirmative action programs in practice, even if one could argue that nothing has changed in theory," argues Somin. 

"To determine the likely impact of today's decision, it's worth asking the following question: How difficult will it now be for a university to prove that it is permissible for it to adopt a program of racial preferences in admission? I say it's going to be pretty darned hard," Somin continues.

"Without any judicial deference to their educational expertise, schools will be hard-pressed to show that their programs are 'narrowly tailored' or that there are no 'racially neutral' alternatives that could have achieved the same goal," he concludes.

Could SCOTUS ruling actually endanger affirmative action policies? Salon, June 24, 2013. By Jillian Rayfield.

Excerpt:
"Strict scrutiny is the highest possible standard that the courts apply when reviewing laws that either discriminate on the basis of race, gender or some other characteristic, or directly interfere with a constitutional right. In order to determine whether a law stands up to strict scrutiny, the court will ask whether the government has a compelling interest for creating the policy, and whether the law is 'narrowly tailored' to that particular interest. Here, the Court found that the 5th Circuit had not adequately applied that test.

"The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity," wrote Justice Anthony Kennedy in the majority opinion. He continued: 'Rather than perform this searching examination, the Fifth Circuit held petitioner could challenge only whether the University’s decision to use race as an admissions factor "was made in good faith." It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption.'"

Read the article