The Originalist Debate About Affirmative Action
The U.S. Supreme Court heard oral arguments last month in Students for Fair Admissions v. University of North Carolina, which asks whether state colleges and universities should be prohibited from using race as a factor in determining admissions. Under Supreme Court precedent, when the government (including a state university) takes race into account, the government’s actions are subject to “strict scrutiny,” the most searching form of judicial review. To satisfy strict scrutiny review, the government must show, first, that its actions serve a “compelling interest,” and, second, that its actions are “narrowly tailored” to achieve that interest. Strict scrutiny is typically a high judicial hurdle to clear.
But there was another big question lurking around the perimeter of the case. Namely, does the original meaning of the 14th Amendment—which says that no state may “deny to any person within its jurisdiction the equal protection of the laws”—allow or disallow affirmative action in higher ed admissions?
Standing on one side of that debate is Justice Clarence Thomas, who has long maintained that “the Equal Protection Clause strips States of all authority to use race as a factor in providing education.” “All applicants must be treated equally under the law,” Thomas wrote in Fisher v. University of Texas at Austin (2013), “and no benefit in the eye of the beholder can justify racial discrimination.”
On the other side is a friend of the court brief filed in support of th
Article from Reason.com