This article proceeds in three parts. In Part I of this article, I provide a narrative of affirmative action jurisprudence in higher education, with a particular focus on the meaning of viewpoint diversity in higher education. This section tracks the definitional shift in preference policies from their original design as remedial and compensatory programs for those suffering the effects of educational discrimination to interest convergence programs, which assure equal benefits irrespective of race. In Part II, I explore the circumstances giving rise to Fisher, including an overview of the lower court decisions. This section presents a discussion of the likely outcome of the Fisher case based on past rulings by members of the current Court and predicts that the Court will decide Fisher on very narrow grounds. In Part III, I explore the underpinnings of the postsecondary education admissions process. This section explores the contemporary goals of most institutions' admissions, including their moral sense of providing a compensatory education to groups that previously experienced academic disadvantage, the nature of elitism in education fueled in large part by U.S. News & World Report, and the goal of colleges and universities to admit the most qualified students in the wake of an ever growing volume of applicants. This section concludes that colleges and universities, for both financial and egotistical reasons, are more concerned with their academic reputation than with Constitutional limitations on their admissions policies, and as a result, for the most part, colleges and universities will continue to try to use race as a plus, regardless of any future Supreme Court edict.
Leslie Yalof Garfield, The Inevitable Irrelevance of Affirmative Action, 39 J.C & U.L. 1 (2013), http://digitalcommons.pace.edu/lawfaculty/879/.