Hal Arkes and George Dent write for the Martin Center about court challenges involving affirmative action.

Even though Harvard won the first round in its battle with Students for Fair Admissions, a case challenging the university’s affirmative action policy, the judge did not address the deep and difficult issues that racial preferences involve. For lawyers and judges who will grapple with this issue in the future, we would like to advance some new ideas based on empirical research on the evaluation process.

The Supreme Court has said repeatedly that racial discrimination by the government is permissible only to meet a “compelling state interest.” Beginning with the Bakke case in 1978, the Court said that the educational benefits of a racially diverse student body could be a compelling interest.

In 2013, in its first encounter with Fisher v. University of Texas, the Court reiterated the educational value of diversity because it may produce “enhanced classroom dialogue and the lessening of racial isolation and stereotypes.”

However, the Court found that the lower courts hadn’t analyzed the university’s claims closely enough. It sent the case back for the lower courts “to determine whether the university had proved “that its plan is narrowly tailored to achieve the educational benefits that flow from diversity.”

The lower courts decided that UT had made such a showing, and in Fisher II (2016), the Supreme Court accepted that finding by a 4-3 vote. It repeated that the standard of review in racial preference cases is strict scrutiny, which “requires the university to demonstrate with clarity that…its use of [a racial] classification is necessary…to the accomplishment of its purpose.’”

And it further stated that “no deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals.” Merely “asserting an interest in the educational benefits of diversity writ large is insufficient.”