Home > A1, Learning > Strict or Loose Scrutiny?

Strict or Loose Scrutiny?

Recently in government class, we discussed the judiciary aspect of the Untied States. More specifically, we performed a mock trial representing that of Fisher v. University of Texas. To start with a broad approach, an understanding of the Judiciary system in its whole is necessary to understand the trial. The United States abides by an adversarial court system in which a judge plays a relatively passive role as attorneys battle to protect each other’s sides (Choices 250). This system is directly translated into the court systems and is the format of the Fisher trial. When dealing with cases, they can either be under a civil or criminal category. The civil courts deal with seeking compensation while the criminal courts seek punishment (Choices 250). The Fisher case presents an interesting part of the judiciary system as it is debated that some judges often use precedent and maintaining the authority of the judicial system as the foundation of their decision vs. the judicial philosophies of the founders (Parish Gov). The Fisher case is not only a fun activity due to the fact that we are in the shoes of the Supreme Justices and have the ability to deliberate but it also shows how such a little “bump in the road” can reflect something so huge in the federal sense; a trial concerning the Fourteenth Amendment.



The trial consists of a petitioner, Ms. Fisher, making a claim against the University of Texas. She is challenging the university’s use of race in its undergraduate admissions process (Scouts Blog) and bringing Affirmative action into question. Affirmative action is defined by the American Civil Liberties Union (ACLU) as one of the most effective tools for redressing the injustices caused by our nation’s historic discrimination against people of color. It provides for equal opportunity when dealing with employment, and in this case, admission. The university considers academic and personal achievement when dealing with their admissions. They claim that they use a “narrowly tailored” mean of pursuing greater diversity (Oyez). Ms. Fisher, on the other hand, disagrees and says that her race hindered her from being accepted to the university. She claims it was a determining factor rather than one taken into consideration. Under the Grutter v. Bollinger, the Supreme Court argued whether “student body diversity is a compelling state interest that can justify the use of race in university admissions.” It was ruled that the admission policies at public interests must be “narrowly tailored” to pass strict scrutiny  (Cornell Law).

University of Texas

University of Texas

Naturally, there is a conservative opinion and a liberal opinion. The conservative side is questioning the Fourteenth Amendment that guarantees equal protection of the laws without regard to a person’s race. Fisher contends that UT’s ten percent law achieves diversity within the race-conscious university and that when considering those outside of the ten percent (where she is placed), race is being used as a determining factor (Cornell Law). The conservatives also bring into question what the University of Texas calls “critical mass”. As they are unable to clearly define it, critical mass is an ambiguous “quota”. They want to achieve a certain percentage of each race within their student body and classes, which is strictly unconstitutional. Statistics show that in the years leading up to Ms. Fisher’s denial of admissions that this “quota” was present as the race percentages remain stagnant. See facts (here)

Abigail Fisher

Abigail Fisher

The liberals contend that UT’s Ten Percent Law is insufficient to achieve the diversity it needs. It has increased diversity overall, but the left side claims that UT is yearning to achieve diversity within each racial group. As they yearn to create a richer educational environment, the aim to use all the aspects of their applicants in order to create a more diverse institution (Cornell Law). The liberals claim that the admissions process will prepare students for a diverse society after they leave the university, when generally speaking, makes sense. The university is trying to avoid a monotonous student makeup). They use this goal as a basis to deny the claims that their policy sets quotas and/or targets minorities for admissions. The liberals also contend that since the university does not monitor the racial composition of the class during the admissions process, it renders their accused policies as impossible. (American Bar)

Now for my perspective, it comes down to Strict Scrutiny and Affirmative Action. Whether there is this “Critical Mass” is a determining factor. The university claimed that it considers race in its admissions process until the student body has a “critical mass” (Scouts Blog). There is a fine line between factoring in or taking into consideration and being a determining factor that needs to be clearly explained in this case. The university needs to define their critical mass and be reviewed to a point where the holistic review after the Top Ten Percent Law would better the diversity as a whole, not only race. This process needs to undergo Strict Scrutiny and be reviewed once more to assure that race is a factor considered rather than used to determine.

This case proves that their may be more to a small issue. A simple denial to a college brought about a trip to the Supreme Court and an Amendment in question. When it comes down to the equal rights clause and strict scrutiny though, race can be a huge and influential factor but only to a certain extent. The benefits of being diverse are a reality, but they should only be applied to constitutionally acceptable standards. Diversity shouldn’t be defined; let it achieve itself.

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