<p>Fisher is basically Grutter on steroids, with much tougher scrutiny given to a university’s attempt to first employ race neutral alternatives to achieve diversity before using race and then once using race to make sure it is narrowly tailored. </p>
<p>So essentially, a university has to prove to a court (a key part of Fisher – the university gets deference in deciding diversity is an important goal, but then the court gives the university no deference in examining the specific AA program) four things to keep an AA program subject to an EPC challenge: </p>
<p>(1) a specific diversity goal linked to some defined educational objective (general platitudes will not be enough and probably not school-wide goals either; suspect courts will look to see diversity’s impact in the classroom which is the purported good fostered by diversity but also by far the hardest diversity to achieve); </p>
<p>(2) program used for diversity and not for any other purpose (ie no social engineering, quotas, attempts to get a specific type of minority (like in Texas where program geared towards minorities from wealthier districts that just missed the top 10% and would be, at least initially, stronger students than the top students from weak school districts); </p>
<p>(3) considered race neutral alternatives but they could not achieve the specific diversity goal (ie documentation and evidence to back up need for program and likely some consideration of alternatives like percentage or socio-economic plan and why those would not work re diversity); and </p>
<p>(4) program narrowly tailored to achieve the goal but no more (ie this will be extremely tough to meet and the more diversity the less likely the plan is narrowly tailored; what is the sweet spot will likely be subject to lots of second guessing by courts).</p>
<p>Quite frankly, I do not think any university will be able to meet this test and that unless the composition of the SCT changes in favor of liberals, the universities will lose these cases most of the time.</p>
<p>Ultimately, I think universities will go in three directions to avoid constant legal battles – (1) class rank like in Texas, (2) socio-economic plans, or (3) a mixture of one and two focusing on academic and personal factors but not expressly race) (ie what Texas did to get the students not admitted by class rank, but w/o the race component).</p>