While the Supreme Court’s decision in Fisher is understood as tightening somewhat the scrutiny of a university’s admission plan that pursues racial diversity, the question is how much it does so. I thought it might be useful to explore the majority’s discussion a bit by considering on which issues universities are entitled to deference.
The Fisher majority drew the familiar distinction in the Equal Protection context of 1) the requirement that government pursue a compelling state interest and 2) that it do so with narrowly tailored means.
The decision in Grutter was unusual in that it conferred deference on the university as to its admission plan, even though the university was subject to strict scrutiny. The question addressed in Fisher was whether the deference extended only to the end or to the means as well. Fisher held that the deference extended only to the end.
Under Fisher, the Court held that the end of pursuing a diverse class is a compelling interest. The diversity is not supposed to be solely that of racial diversity, but instead a diversity of various aspects “of which racial or ethnic origin is but a single though important element.”
A key question here is, how much of the diversity can be racial? How much weight can be given to race in choosing the class? The Court indicated that the diversity cannot involve a specified percentage or quota based on race. But how important can race be – as compared to other types of diversity such as geographic and as to merit factors such as grades and test scores?