58 Pages Posted: 4 May 2013
Date Written: May 3, 2013
Once again, the U.S. Supreme Court will determine the constitutionality of affirmative action. Once again, the focus will be on the diversity rationale for the policy. And, once again, the discussion will likely center on whether the admissions regime of a particular school (this time, the University of Texas) can take steps to ensure that it admits a certain number — or to put the point more doctrinally, a critical mass — of students from a particular racial group, such as African Americans. Framing diversity in terms of group representation assumes that when admissions officials administer affirmative action programs, their racial decisionmaking stops at the level of the racial group. Under this view, admissions officials are simply interested in whether they have a critical mass of African Americans as a group. The racial interests of these officials, however, might be narrower than that. Especially at elite colleges and universities, admissions officials are also likely employing an intraracial diversity frame. Here, the concern is not simply whether there is a critical mass of African Americans as a group. The concern is also whether the school has admitted particular “types” of African Americans. For example, a school might screen its application pool for African Americans who are likely to promote racial cooperation and understanding. Alternatively, the school might be interested in African Americans who can facilitate the robust exchange of ideas. The point is that admissions officials can realize their commitment to diversity by choosing African Americans at least in part based on their perceived racial “types” and not simply based on their racial group membership. This Article demonstrates precisely how they can do so, describes the incentive system this creates for applicants to work their identity in the application process to signal that they are the right racial “types,” and explains how the phenomenon of intraracial diversity is implicated in the Fisher v. University of Texas litigation.
Keywords: constitutionality of affirmative action, racial profiling, intraracial diversity, Fisher v. Univ. of Texas
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