Intentionally and Systematically Integrating Diversity Discussions and Lessons in the Law School Classroom During a Race-Conscious Era

Abstract

This article addresses the compelling interest states have in the educational benefit of diversity in higher education. It provides a framework for developing the classroom discussions most likely envisioned by the Supreme Court justices in recognizing this compelling interest. First suggested to be a compelling interest in the fractured yet landmark Regents of University v. Bakke decision, it was not until Grutter v. Bollinger in 2003 that the Court furthered the idea. The more recent Fisher v. University of Texas decision from 2016 seemed to accept educational diversity as a compelling interest; however, that conclusion received strong criticism. In Fisher, Justice Alito took the opportunity in his dissent to systematically cut a swath through the majority’s acceptance of the University’s goals of classroom diversity, interracial diversity, and the avoidance of racial isolation. This article disagrees with Justice Alito and aims to establish that the educational benefits of racial diversity in the classroom are evident. To do so, the article provides a historical tracing of the Court’s valuation of the educational benefits of a diverse student body.

Next, the article focuses on the continued need for diversity lessons in a race-conscious culture and explains methodologies for incorporating lessons on diversity in traditional law school courses. The article provides the means for teaching racially sensitive topics; but because it questions whether everyone is equipped to openly handle diversity issues, it also makes suggestions on how to do so in silent and quiet manners. Finally, the article provides a brief review of post-Fisher litigation and concludes that the Court consider shifting its focus from the educational benefits of diversity to the educational benefits of inclusion. In so doing, the article recognizes the continued need to further develop both the educational benefit as a compelling interest and the law school conversations.

Keywords: diversity, higher education, classroom diversity, classroom discussion, interracial diversity, diversity discussions

JEL Classification: K00, K1