Safe Spaces and the Educational Benefits of Diversity

• In Event: 68.047 - Race and Gender Diversity in Education Law and Policy

Abstract

This Article analyzes two related inconsistencies in Supreme Court doctrine on affirmative action that remain after Fisher II: 1. The academic freedom argument for diversity and student selection, which is inconsistent with the scope of the First Amendment; and 2. The broad nature of the compelling interest in diversity, which is inconsistent with conventional notions of narrow tailoring. The Article argues that the first inconsistency can be resolved through a understanding of judicial deference through First Amendment values. However, this is only helpful if the second inconsistency is also addressed. Consequently, this Article argues that the Court should also reinterpret the narrow tailoring test of strict scrutiny in conjunction with its affirmance of the diversity interest.

Author

• Vinay Harpalani, Savannah Law School