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Tuesday, February 21, 2012

Supreme Court grants cert in UT Affirmative Action Case

The Fifth Circuit’s opinion is here.   One thing that jumps out at me is that Judge Jones’ dissent from the denial of rehearing en banc relies on the majority’s failure to adhere to the “narrow tailoring that Grutter requires.”  My sense of Grutter, however, is that the tailoring wasn’t that exact given Justice O’Connor’s deference to the University of Michigan’s desire to preserve its elite status and yet still loosely factor race into its admission’s process.  I suspect that Justice O’Connor’s decision to cloak this deference in the rubric of strict scrutiny has laid the groundwork for a Brown v. Board of Education/Parents Involved sleight of hand in which the majority will limit the ability of institutions of higher education to use race by requiring that the fit to be exact and the state’s interest in diversity be narrowly defined, and it will do so while still claiming to be in line with Grutter.     

Posted by Franita Tolson on February 21, 2012 at 11:20 AM | Permalink

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