Loyalty, Diversity, and Colorblindness

50 Pages Posted: 10 Jul 2012 Last revised: 18 Aug 2012

See all articles by Bret D. Asbury

Bret D. Asbury

Drexel University Thomas R. Kline School of Law

Date Written: July 9, 2012

Abstract

This fall, the Supreme Court will address whether public colleges and universities may consider race in admissions for the first time since 2003, when it decided Grutter v. Bollinger. The Fifth Circuit case under review, Fisher v. Texas, upheld the University of Texas’ narrow consideration of race in undergraduate admissions. The panel opinions in Fisher stake out two competing narratives, one lending great deference to university administrators in their efforts to promote diversity and the other in favor of strict colorblindness in admissions.

This Article argues that both diversity and colorblindness are important national aspirations and that Fisher should be understood primarily as conflict between the two. It frames this conflict as a clash between two deeply held loyalties to which the Supreme Court would desperately like to adhere, but which in this context and many others simply cannot coexist. Relying on literature on loyalty from the social sciences and humanities, this Article shows that conflicts between loyalties are often difficult for individuals to resolve, particularly when the loyalties are of meaningful importance. After showing that norms in favor of diversity and more widespread inclusion are now deeply entrenched in contemporary society — not only in education, but in the corporate and public sectors as well — this Article discusses Fisher in the loyalty context and argues that because many efforts aimed at promoting diversity (in both the private and public sector) could be rendered illegal pursuant to a reading of strict colorblindness into the Constitution, the Court should privilege diversity in this conflict of loyalties and continue to permit limited, good faith deviations from the colorblindness aspiration. The alternative, a privileging of strict colorblindness over race-conscious efforts aimed at diversification, has the potential to reverberate far beyond public school admissions and radically reshape society.

Keywords: Fisher v. Texas, Loyalty, Diversity, Colorblindness

Suggested Citation

Asbury, Bret D., Loyalty, Diversity, and Colorblindness (July 9, 2012). Tennessee Law Review, Vol. 79, No. 4, 2012, Available at SSRN: https://ssrn.com/abstract=2102762

Bret D. Asbury (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States
(215) 571-4786 (Phone)

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