The Double-Consciousness of Race-Consciousness and the Bermuda Triangle of University Admissions

34 Pages Posted: 6 Dec 2014 Last revised: 3 Nov 2015

See all articles by Vinay Harpalani

Vinay Harpalani

University of New Mexico School of Law

Date Written: December 4, 2014

Abstract

This Essay draws upon the thought of W.E.B. Du Bois and the late Professor Derrick Bell to analyze race-conscious university admissions today. The Essay has three main points. First, it argues that there is a “double-consciousness” to race-consciousness. In other words, there are two different understandings of diversity, of race-neutrality, and of individualized review — the key tenets of Supreme Court doctrine on race-conscious admissions. The double-consciousness of diversity, race-neutrality, and individualized review was prominent in the Fisher litigation and the legal discourse around Fisher more generally, leading to much confusion. Second, in addition to double-consciousness, this Essay argues that there is another source of confusion and contradiction in the Supreme Court’s doctrine on race-conscious admissions policies. Together, the three prongs of diversity, race-neutrality, and individualized review form a “Bermuda Triangle” for university admissions. Currently, admissions plans cannot have these three features together, but the Supreme Court requires universities to simultaneously strive for all three. Finally, this Essay revisits the idea of double-consciousness and contends that advocates of race-conscious admissions policies are, in the words of Professor Bell, “serving two masters” — freedom of universities to be both diverse and elite, and social justice for poor and disadvantaged people of color. The Essay contends that rather than a broad pronouncement by the Supreme Court, political process and lower court rulings will determine the fate of race-conscious admissions, at least in the near future. The concluding section also discusses the Orwellian irony of “post-racial” America — where victory for racial justice is hard to distinguish from defeat.

Keywords: affirmative action, diversity, higher education, university, race-conscious, admissions, Derrick Bell, Critical Race Theory, double consciousness

Suggested Citation

Harpalani, Vinay, The Double-Consciousness of Race-Consciousness and the Bermuda Triangle of University Admissions (December 4, 2014). 17 University of Pennsylvania Journal of Constitutional Law 821 (2015), Available at SSRN: https://ssrn.com/abstract=2534159

Vinay Harpalani (Contact Author)

University of New Mexico School of Law ( email )

1117 Stanford, N.E.
Albuquerque, NM 87131
United States

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