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Which standard of review should the court use when analyzing race conscious affirmative action programs? Over the last 35 years, the Supreme Court has attempted to answer this question numerous times; each time clarifying certain parts, while leaving other parts intentionally vague and open to interpretation. The result has been various affirmative action plans being called into question to see if they violate the Equal Protection Clause based on a racially conscious motive. And while the court has ultimately decided the standard of review to be strict scrutiny, the language in the plurality and majority decisions of Bakke and Grutter still leaves wide latitude for educational institutions to practice reverse discrimination. By not implementing any scale or numbering system that quantifies the number of unrepresented minorities in a quota or similar grouping, the court finds that race or ethnicity may be used as a plus factor in the admissions process. It is my contention that the court erred in Bakke in their original application of strict scrutiny to racially conscious affirmative…
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