'Serious Consideration' of Race-Neutral Alternatives in Higher Education

Abstract:     
What does it mean for a college or university to "seriously consider" race-neutral alternatives? Contemporary affirmative action jurisprudence requires post-secondary institutions to address this question, yet does little to answer it. By requiring universities to conduct "serious, good-faith consideration of workable race-neutral alternatives" before engaging in non-remedial race-conscious activities-but without specifying the requisite nature and scope of this "consideration" - the Court has left many institutions to wonder what is needed to satisfy the Court. Commentators have explored various approaches, including class-rank plans, socioeconomic preferences, and lottery assignment plans. What courts and commentators have largely failed to explore, however, is the basic methodological question: What, specifically, does it mean to give serious consideration to these alternatives? This Article argues that basic principles of program evaluation provide clear standards and criteria for serious program consideration, and that application of these methodologies is mandated by the Court's decisions. As litigation will increasingly focus on narrow tailoring, administrators' failure to apply proper program analysis to race-neutral alternatives could jeopardize many diversity programs. Moreover, the absence of requisite program analysis of race-neutral alternatives will lead to uncertainty, confusion, and disregard for the law. Thus, this Article supplies a framework for identifying meaningful program evaluation standards that can enable universities to comply with the requirements set forth in affirmative action jurisprudence.

Keywords: Affirmative Action, Racial Preferences, Race-Neutral Alternatives, Higher Education, Universities, Narrow Tailoring, Class Rank, Percentage Plans, Race, Ethnicity, Program Evaluation

JEL Classifications: I2-I28, I2-I20, J7-J78

Working Paper Series