a) During its spring 2012 term, the U.S. Supreme Court is expected to decide a constitutional challenge to the University of Texas’ affirmative action program (Fisher v. University of Texas at Austin, 2012 U.S. LEXIS 1652). It is widely believed that the Court will take this opportunity to further limit, if not entirely eliminate, affirmative action in public education (see, e.g., Adam Liptak. “College Diversity Nears Its Last Stand.” New York Times (October 16, 2011), SR4.) This case, and the Supreme Court’s decision in it, should provide for some lively classroom debate.

b) A consultant advises the following for your company: 

1) Since you have a number of jobs at which there are more men than women and you desire greater diversity, affirmative action would be a good idea; 

2) Since you have less than 50 employees, there is no need to put your affirmative action plan into writing; 

3) “Band” test scores so that all female candidates are in one band and all male candidates in another. Then alternate in hiring the top candidates from each band; 

4) Be sure to consider affirmative action goals in all of your employment decisions; and 

5) Be prepared to continue your affirmative action efforts indefinitely. 

Critique the consultant’s advice. For each suggestion, decide whether it is good legal advice. If not, what is the problem? What should the consultant be advising?