INTRODUCTION :: The Supreme Court’s doctrine known as strict scrutiny is divided into two elements. First, there is the requirement that a State identify a “compelling governmental interest” that supports the state’s use of race as a factor. Second, and just as important, there is the requirement that the state’s action be “narrowly tailored” to advance that compelling interest. Both parts of the test are essential, because each performs a different and necessary function.
This Article concerns the second prong of strict scrutiny, the narrow tailoring requirement, as the Supreme Court has recently applied that doctrine in its affirmative action decisions. The thesis of the Article is simple. A compelling governmental interest does exist to support limited use of race-based decision-making such as that in the Grutter and Gratz cases. This Article characterizes the compelling interest as active nondiscrimination. But the Supreme Court’s analysis of narrow tailoring in those cases is weak and unpersuasive. Indeed, the Court missed the point.
The narrow tailoring requirement is the Rodney Dangerfield of the strict scrutiny test. Rodney Dangerfield is a comedian who frequently intones, “I tell ya, I don’t get no respect.” Unfortunately, neither does narrow tailoring. In Grutter and Gratz, the majority seemed to explain what narrow tailoring is not, rather than explaining what it is. Perhaps the reason is that cases concerning race are contentious, and after fighting its way through the first issue- whether the state’s action implicates a compelling interest-the Court suffered a letdown. Or, perhaps the reason is that the narrow tailoring question is multidimensional and complex, and it is the more difficult issue of the two. Finally, there is the possibility that the narrow tailoring requirement was discovered much later in the Supreme Court’s jurisprudence than the compelling interest requirement, and thus has not been developed as fully.
This Article begins by describing the Gratz and Grutter cases, with particular attention to the majority’s treatment of narrow tailoring in Grutter. It then examines the compelling governmental interest question in Grutter and Gratz. The Article examines three theories that might be advanced to support the finding of a compelling interest: viewpoint diversity, racial diversity, and nondiscrimination. Next, the Article analyzes the narrow tailoring question. It first asks, what does narrow tailoring mean? Then, given the majority opinion in Gratz, the Article analyzes whether administrative discretion can amount to narrow tailoring. It also considers alternative means of achieving the State’s legitimate objectives in cases such as Grutter or Gratz.
The Article’s final section summarizes the author’s conclusions. First, viewpoint diversity and pure racial diversity should not, in and of themselves, be regarded as compelling governmental interests. This conclusion does not provide much of an answer, however, because the Article concludes that there is a compelling government interest in nondiscrimination, and that nondiscrimination is not a passive achievement. It requires purposeful conduct, or affirmative effort, which in turn implicates attention to racial patterns in the state’s distribution of benefits. The Article also concludes, however, that the Supreme Court’s majority did not begin to wrestle with the difficult issues involved in narrow tailoring. Narrow tailoring should be defined more clearly, as the legitimate achievement of the state’s compelling objectives with minimal probability of improper practices. A license to state functionaries to use racial discriminants in decision-making, at their discretion, unconstrained by law, does not meet this definition. The alternatives are not perfect, but the Article concludes that there are some that are more narrowly tailored.
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September 2013, Vol. 65, No. 5
Thomas J. Horton & Robert H. Lande, Should the Internet Exempt the Media Sector From the Antitrust Laws?
Thomas J. Horton, Robert H. Lande, & Virginia Callahan, APPENDIX
Chad Flanders, Pardons and the Theory of the “Second Best”
Brett McDonnell, Dampening Financial Regulatory Cycles
Dane Ullian, Retroactive Application of State Long-Arm Statutes