Strict Scrutiny

Strict Scrutiny

Ever wonder how measures like affirmative action can be deemed constitutional? Doesn't it directly violate the 14th Amendment which guarantees equal rights and protection under the law? How far can affirmative action policies go? Well, in most court cases involving affirmative action they review these policies using a method called strict scrutiny.

Strict scrutiny is a form of judicial review, where the Supreme Court reviews the constitutionality of a law or legislative act.  In this way, the SC can review affirmative action policies to see if they can be deemed unconstitutional. In the Supreme Court, defendants of AA programs must be able to pass the strict scrutiny test which is comprised of three parts. 

1. The program must be able to prove that it has a compelling governmental interest in the program or law. This means that the program must be necessary or crucial for the functioning of the state, not just something the state wants. 

2. The program must be narrowly tailored to address the governmental interest. For example, even if the court found that states had a compelling governmental interest in incorporating minority students, the state would have to demonstrate that its program only incorporated eligible candidates. A person could not be admitted to an institution of higher education simply because of his racial background. 

3. The program is using the least restrictive means to achieve that goal. 

Furthermore, as was decided in later SC cases, Affirmative Action cannot create quotas in any way.

Each court must be able to apply this test before making a decision. For example, in Fisher v Texas, the original ruling merely sent the case back down to a lower court after the SC decided that the lower courts had incorrectly applied strict scrutiny.