Article by Douglas Laycock
This Article reviews a range of arguments for affirmative action in the wake of the United States Supreme Court's decision in Grutter v. Bollinger, reviews the experience with race-neutral means, and identifies an important new policy initiative embedded in the generally unsuccessful experiments with race-neutral means.
Grutter greatly expands the meaning of diversity, from a free-speech interest in vigorous classroom debate to an equal-protection interest in integrating American leadership. The Court also holds that schools with selective admissions need not sacrifice academic excellence to achieve these compelling interests. These holdings incorporate into the Court's reasoning many of the arguments for affirmative action that have traditionally been distinguished from diversity.
Affirmative action has been an essential means by which selective universities in the southern and border states fulfilled their duties to desegregate; diversity is just the opposite of racial identifiability. Affirmative action preserves selective admission standards by ameliorating their segregative effects. Affirmative action is essential to educating a diverse future leadership. That goal is especially important in southern and southwestern states where disadvantaged minorities make up a majority or near majority of the college age population. And affirmative action in college admissions is a partial remedy for the social consequences of past and present discrimination in public education.
Racial diversity cannot be achieved in selective schools with race-neutral means. All race-neutral means work by deemphasizing academic criteria for admission and substituting a proxy for race. Most of these proxies are weak, admitting more white and Asian students than minority students. To improve minority enrollment by these means, the proxy criteria must be applied to all seats in the class, not just a few. Race-neutral means thus inherently produce less diversity and do greater damage to academic excellence,.
The most prominent proxy, high school class rank, has been generally ineffective. Minority enrollment is down in Texas and California, and modest gains in Florida appear unrelated to that state's twenty-percent plan. Minority enrollment in Texas appears to have resulted more from aggressive recruiting at minority high schools than from the percentage plan.
Most other proxies are even weaker, and the weakest proxies are equivalent to lottery admissions. There are few strong proxies, and the one important strong proxy in actual use—Texas geography as a proxy for Hispanics—has been both less effective and more academically costly than affirmative action. With proxy admissions, schools cannot admit the strongest minority applicants. They have to admit the ones that fit the proxy.
But experimentation with percentage plans has revealed one unanticipated benefit. The guarantee of admission to a number of students from each high school has powerful motivational effects in low-performing high schools. This school-specific guarantee can be separated from the percentage plans that spawned it. This would permit most admissions to be based on the full range of academic predictors, while preserving the motivational benefits of a guarantee to each high school.
About the Author
Douglas Laycock. Alice McKean Young Regents Chair in Law, University of Texas at Austin.
Citation
78 Tul. L. Rev. 1767 (2004)