Scrutinizing Strict Scrutiny

Abstract

Standards of review dominate personal liberties practice, and we must take them seriously if we heed calls to take (constitutional) lawyering seriously. Standards are poorly articulated and undertheorized. They must be properly fashioned by exploring and reconciling the logic and purpose of each of their components. We do this with strict scrutiny both to energize an important standard of review and model a proper approach. Our analysis is primarily within the context of higher education affirmative action cases because they typify the ambiguity of strict scrutiny; one such case – Fisher v. University of Texas at Austin -- could return to the Court next term.We derive a preferred articulation of strict scrutiny with six achievable but rights-protective requirements. Strict scrutiny is especially energized by separating its “ends question” about compellingness from its “means question” about interest advancement. Then state interests are compelling only if of a special nature, analogous to requiring fundamental rights to have special attributes irrespective of any intrusion.The preferred version of strict scrutiny is applied to Fisher, which involves a university program that considers race as one diversity factor combined with a top ten percent law. Our contrarian conclusion is that the law is unconstitutional, but that the Court should save the university program by severing it from the law. It is contrarian because most authorities - whether invoking an anti-subjugation, anti-classification, or antibalkanization perspective -- accept supposedly racially neutral top ten percent laws. We invoke a nuanced conception of antibalkanization applicable in Fisher’s unique circumstances. Our conclusion is also based on a rich conception of academic freedom with two complementary aspects that place it at the foundation of freedom of speech. These aspects combine to protect universities from external impositions such as the Texas law, allowing them to accommodate diversity and demonstrated academic capacity.