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Hastings Law Journal

Abstract

This Article proposes a new compelling interest to justify affirmative action policies. Litigation has been successful, to a point, in preserving affirmative action, but public support of the diversity and inclusion rationales for race-conscious policies is waning. Equity abhors a vacuum, and so this Article promotes a return to remedial justifications for affirmative action programs and policies. It begins with an overview of the strict scrutiny standard, providing background on what constitutes compelling government interests, and what meets the narrowly tailoring element. After exploring the Court’s dismantling of the societal discrimination justification for affirmative action programs, this Article makes the case that remedying systemic discrimination is equivalent to remedying past and present discrimination. Therefore, it should qualify as a compelling government interest. Next, it analyzes the evidence showing how existing affirmative action policies help combat the effects of institutional discrimination through the lens of the litigation at the University of North Carolina, and the Harvard trial, and contrasts the outcomes at the UCs after Proposition 209. The potential sunset of the diversity justification in higher education means that other strategies must be developed now, to fill the void that could occur by 2028, or much sooner as petitions for review are being considered by the Supreme Court as this Article is going to print. The Article concludes by opening the door to the discussion of alternative, nonlitigation strategies for maintaining and enhancing affirmative action with a model statute, building off the requirements in Title VI.

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