Narrowly Tailored but Broadly Compelling: Defending Race-Conscious Admissions after Fisher

73 Pages Posted: 29 Mar 2014 Last revised: 16 Jan 2016

See all articles by Vinay Harpalani

Vinay Harpalani

Savannah Law School; Drake University Law School

Date Written: 2015

Abstract

This Article argues that Fisher v. Texas does not spell doom for race-conscious admissions policies, in spite of its call for universities to seriously examine whether race-neutral alternatives can attain the educational benefits of diversity. The Article analyzes the internal tension in the Supreme Court’s doctrine on race-conscious admissions: on the one hand, the Court has called for universities to seriously consider race-neutral alternatives, but on the other hand, it has defined the educational benefits of diversity very broadly and granted deference to universities in defining their educational missions. Unlike constitutionally-approved remedial rationales for affirmative action, the diversity interest has no logical endpoint or ceiling: diversity will continue to be important for the forseeable future, and there is no intuitive upper limit to its benefits. Moreover, the educational benefits of diversity explicitly noted in Fisher and Grutter v. Bollinger, such as lessening of racial stereotypes and mitigating feelings of isolation among minority students, require direct attention to race.

Additionally, this Article contends that the Court’s narrow tailoring principles for race-conscious policies relate directly to the diversity interest: the holistic admissions process upheld in Grutter v. Bollinger facilitates individualized review and nuanced consideration of race, which help to lessen racial stereotypes and which cannot be replaced adequately by race-neutral alternatives. Further, this Article illustrates that a holistic admissions process with individualized review cannot be entirely race-neutral, and that universities already place a de facto limit on their use of race in admissions, through their own academic selectivity. As a result, this article contends that universities have not reached their desired level of racial diversity and related educational benefits, and the Supreme Court’s call to curb race-conscious policies runs counter to its own articulation of the educational benefits of diversity.

Finally, this Article discusses two relatively novel ways that universities can continue to defend their race-conscious admissions policies by linking them to race-conscious educational goals. Employing the deference Fisher gives them in defining their educational missions, universities can 1. Emphasize the educational benefits of diversity within racial groups and intragroup support among minority students; and 2. Highlight the educational benefits of diversity that occur within race-conscious campus spaces, such as ethnic studies departments, cultural centers, and residence halls devoted to African American experiences, in addition to benefits of classroom diversity. More broadly, this Article calls upon universities to embrace race-consciousness — not only in their admissions policies but also in their educational missions. By illustrating that their educational missions have race-conscious goals, universities can more readily illustrate how their race-conscious admissions policies and programs are tangibly related to the educational benefits of diversity.

Keywords: affirmative action, diversity, higher education, university, race-conscious, admissions

JEL Classification: K10, K19, K30, K39

Suggested Citation

Harpalani, Vinay, Narrowly Tailored but Broadly Compelling: Defending Race-Conscious Admissions after Fisher (2015). 45 Seton Hall Law Review 761 (2015); Chicago-Kent College of Law Research Paper No. 2014-06. Available at SSRN: https://ssrn.com/abstract=2416838

Vinay Harpalani (Contact Author)

Savannah Law School ( email )

United States
2158734476 (Phone)

Drake University Law School ( email )

2507 University Avenue
Des Moines, IA 50311
United States

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