Racial Preferences in University Admissions

In Round 2 of the Fisher litigation, there was another discussion about the use of racial preferences at the military academies.  In Grutter, the Justices were clearly influenced by a brief from top military officers arguing in support of those preferences to ensure diversity of the officer corps.  When Fisher is decided, the Court may distinguish the military schools from all other state universities as a special case where there is a compelling state interest in using race.

Another way of looking at that potential distinction, though, is that the service academies are federal institutions.  Giving them greater latitude to use race would, in effect, resuscitate Metro Broadcasting, Inc. v. FCC, a 1990 decision that held that the Federal Government had more freedom to use racial preferences because the Equal Protection Clause was directed at the states.  Metro Broadcasting was subsequently overruled, but I wonder if there was something to the federal/state distinction that case made.

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