Strict scrutiny is the most stringent standard of judicial review used in American courts . It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The other members of the hierarchy of standards are, at the lowest level, "rational basis review" and, at the intermediate level, "intermediate scrutiny."
Strict Scrutiny
Courts must use strict scrutiny to evaluate affirmative action programs.
Strict scrutiny is the standard that is employed in litigating affirmative action cases. Strict scrutiny is applied by judges in these cases because they give preferential treatment to a class of citizens--racial minorities. Whether the treatment is justified or not is politically contentious, but the treatment is recognized as legally preferential. Because affirmative action programs do not treat citizens equally, the implementation of affirmative action programs must pass the strict scrutiny standard for the programs to be constitutional, or legal and in accordance with the law and principles outlined in the American Constitution.
Judges apply strict scrutiny tests when a case regarding affirmative action come before them. In other words, in order to determine the constitutionality of the contested program, the judge must determine whether or not the program meets the standards of a strict scrutiny test. To meet these standards, the law or program must satisfy three tests:
- The program must be justified by a compelling governmental interest. This concept refers to something that is necessary or crucial for the functioning of the state, rather than just something that the state wants. An example of a compelling governmental interest would be national security. Whether or not the state has a compelling governmental interest in the incorporation of minority students in places of public education is a key question in any affirmative action case coming before the court.
- The law or program must be narrowly tailored to achieve the state's compelling 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.
- The law or program must use the least restrictive means for achieving the state's compelling governmental interest; that is, there cannot be a less restrictive way to effectively achieve the compelling governmental interest.
When the court uses the strict scrutiny standard to evaluate affirmative action cases, the court is employing the standard because the court must do so in every case of suspect classification. These are cases in which a petitioner is questioning the state's categorization and treatment of a particular minority group of citizens. Affirmative action cases fall in this category. For the classification to be constitutional, the class must have experienced a history of discrimination, must be definable as a group, must have limited political powers, and its characteristic must have little relationship to the government's policy aims or the ability of the group's members to contribute to society. The Supreme Court has consistently found that classification based on race, national origin, and alienage require strict scrutiny review. Thus, it is used in all legal contestations of affirmative action.