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Affirmative Action vs. Equal Protection

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The one thing that was clear during yesterday's Supreme Court argument in Fisher v. University of Texas -- a case involving affirmative action -- was that the Court's liberal bloc is terrified at the prospect of overruling Grutter v. Bollinger, a 2003 precedent holding that public universities can use racial preferences in admissions (a blatant violation of the Equal Protection Clause) because "diversity" is a "compelling state interest."

A substantial diversity industry has been built upon Grutter, which explains why liberal justices, the media, and college deans' offices are desperate to see it upheld. But what emerged from yesterday's oral argument is that Grutter is an incoherent mess. Trying to shoehorn the Texas system into Grutter's "logic," the university's lawyer argued that the university had not achieved a "critical mass" of minorities -- then refused to say what a critical mass would constitute. My full analysis of yesterday's oral argument and why Grutter must go is posted here at NRO Bench Memos.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.