When faced with the use of race by affirmative action programs, the Supreme Court has decided to subject any such program to its strict scrutiny test. In applying that test, the Court first determines whether there is a compelling interest for the use of race by the affirmative action program, and then the Court determines whether the program is narrowly tailored to meet that compelling interest. This Article focuses on the second part of the Court’s test: the narrow tailoring requirement.
This Article analyzes the narrow tailoring requirement by first detailing the history of the Supreme Court’s use of the requirement in its affirmative action cases. In detailing the history, this Article displays that the Supreme Court created the test when Justice Powell was the controlling member of the Court, and that the test was originally a very flexible one. Then the test was altered when Justice O’Connor became the controlling member, and the test became more formalistic and rules based. This Article also displays that it is unclear where Justice Kennedy will take the narrow tailoring requirement now that he is the controlling member of the Court, but that it appears that his view of the narrow tailoring requirement is different from Justice O’Connor’s view.
This Article then goes on to analyze and criticize Justice O’Connor’s formalistic approach to the narrow tailoring requirement, thereby showing why Justice Kennedy should adopt a view of the requirement that is more in line with Justice Powell’s flexible approach. Finally, this Article ends by suggesting a view of the narrow tailoring requirement that goes beyond what was suggested by Justice Powell in his opinions, and utilizes a more flexible multi-factored approach to evaluate whether race-based affirmative action programs are narrowly tailored.
- Affirmative Action,
- Strict Scrutiny,
- Narrowly Tailored
Available at: http://works.bepress.com/luiz_arroyo/2/