In his first and only affirmative action decision since becoming the controlling member of the Supreme Court, Justice Kennedy, in Parents Involved in Community Schools v. Seattle School District No. 1, showed a possible willingness to go back to the looser, more contextualist view of the narrow tailoring requirement that the Court embraced when Justice Powell was the swing vote. This Article argues that regardless of whether Justice Kennedy actually was moving back toward a more contextualist approach to narrow tailoring, a shift away from the highly formalistic inquiry adopted by Justice O'Connor back to the looser contextual standard used by Justice Powell has the potential to fix the previously mentioned problem of failing to achieve a proper compromise between the two sides of the Court. In addition, this Article also suggests how the Court could improve upon Justice Powell's approach to narrow tailoring by enumerating a nonexclusive set of flexible factors that the Supreme Court could use in evaluating individual affirmative action programs and suggesting how the factors could be applied.
Luiz Antonio Salazar Arroyo,
Tailoring the Narrow Tailoring Requirement in the Supreme Court's Affirmative Action Cases,
58 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol58/iss3/6