Keep it Quiet: How Facially Neutral Affirmative Action Passes Constitutional Scrutiny
Alan Wendler Hersh   |   2011 U. Ill. L. Rev. 1885
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Diversity in higher education has many positive implications for both minority and nonminority students alike. Unfortunately, the equal protection clause has been a barrier to many state policies that have sought to enhance diversity in higher education. While the Supreme Court has struck down facially discriminatory affirmative action plans under a standard of strict scrutiny, it is possible that there will be a shift in jurisprudence that allows facially neutral admissions policies to pass constitutional muster. Many states, Texas specifically, have instituted “percentage plans,” which are facially nondis-criminatory policies that aim to increase diversity in higher education by automatically admitting a certain percentage of top students from every high school to a state university. This Note analyzes these percentage plans and discusses whether a potential shift in the Supreme Court’s jurisprudence will allow facially neutral admissions policies to prevail under a strict scrutiny standard. Additionally, this Note recommends that facially neutral admissions policies should be analyzed under a standard of intermediate scrutiny in order to facilitate the goal of diversity in higher education.