Law and Misdirection in the Debate Over Affirmative Action

Abstract:     
This article addresses the increased difficulty that the diversity-based defense of affirmative action has faced in the courts. The central argument is that proponents of preferential admissions fastened on the diversity label in order to seek the apparent safe harbor offered by Justice Powell's Bakke opinion. Unfortunately, diversity has proved a fragile defense. First, it does not provide an adequate description of the actual admissions practices of institutions engaging in affirmative action. Second, it is not clear that the normative force of diversity is sufficient to overcome the heavy presumptions that attach to the use of overt racial considerations in official decisionmaking.

The article then examines the question of affirmative action from an express commitment to the integration of black Americans. Although this too is a problematic defense in the courts, it has the advantage of both being descriptively accurate about the practices of educational institutions and normatively honest about why higher education is committed to the defense of affirmative action.

JEL Classifications: K1, K3, K4

Accepted Paper Series