Diversity within Racial Groups and the Constitutionality of Race-Conscious Admissions
15 University of Pennsylvania Journal of Constitutional Law 46 (2012)
Chicago-Kent College of Law Research Paper No. 2012-01
76 Pages Posted: 19 Jun 2012 Last revised: 3 Nov 2015
Date Written: 2012
This Article offers a novel doctrinal resolution of the key issues in Fisher v. Texas, the impending Supreme Court case which involves race-conscious admissions policies at the University of Texas at Austin (UT). The resolution proposed here addresses Justice Anthony Kennedy’s concerns about race-conscious policies, but also preserves most of the Court’s 2003 Grutter v. Bollinger ruling, in spite of the fact that Justice Kennedy dissented in Grutter. Substantively, the Article clarifies the key issues in Fisher (the meaning of “critical mass” and the scope of deference that courts give to universities) by focusing on a simple idea that permeates Grutter and Fisher but has not been analyzed in the scholarly literature to date: the significance of diversity within racial groups. It argues that under Grutter, a race-conscious policy can aim not only to increase minority representation overall, but also to increase diversity within racial groups. Moreover, the Article contends that diversity within racial groups is key to understanding the constitutionality of race-conscious admissions policies for several reasons: 1. Within-group diversity elucidates clearly how a “critical mass” of minority students is different from numerical goals and quotas; 2. Within-group diversity directly reflects the compelling interest in educational diversity at the classroom level that was articulated in Grutter — the breakdown of racial stereotypes and the facilitation of cross-racial understanding through admission of a “critical mass”; 3. A holistic admissions policy that emphasizes within-group diversity reduces the stigmatic harm of race-conscious measures; and 4. Attaining diversity within racial groups necessitates a degree of deference to universities in their admissions policies. Nevertheless, after reviewing the basic substantive issues in Fisher, the Article also illustrates how the Fifth Circuit could have been less deferential to UT in its Fisher ruling. It distinguishes between three different categories of deference to universities — implementation of race-conscious policies, educational objectives related to racial diversity, and need for race-conscious policies — and analyzes the appropriate standard of review for each. The third category, need for race-conscious policies, is the issue at play in Fisher, and the Article contends that Justice Kennedy’s view on this issue will be outcome determinative in Fisher. The Article then proposes a different analysis to decide Fisher — the “unique contribution to diversity” test — which focuses on within-group diversity and applies strict scrutiny rather than the “good faith” standard adopted by the Fifth Circuit. These distinctions are directly reflective of the concerns raised in Justice Kennedy’s Grutter dissent. Finally, the Article highlights a key values conflict that Justice Kennedy will face when deciding Fisher: the tension the case presents between diversity in higher education and racial segregation in K-12 schooling.
Keywords: affirmative action, diversity, higher education, race-conscious, admissions, critical mass, strict scrutiny
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