Rethinking Affirmative Action: Redefining Compelling State Interest and Merit in Admission

Abstract

Affirmative action is under attack by those who believe that race neutral criteria or a totally color-blind admissions process is mandated by the Equal Protection Clause of the Fourteenth Amendment. This onslaught comes in the form of voter-approved state initiatives outlawing the use of race in admission, a recent court case that rejected the position established in the Regents of the University of California v. Bakke (1978) decision, and recent litigation involving the University of Michigan. Surrounding this controversy is the search for better definitions of equity, diversity, strict scrutiny, compelling state interest, and merit. This article is a continuation of two other works (Hendrickson, 1996, 1999) and reviews the history of the evolution of the concepts of equal protection under the law or equity and affirmative action. A review of the case law on admission and affirmative action will