The two sides of the debate over race-based affirmative action in higher education tell two distinct stories – one of diversity’s benefits and the other of affirmative action’s burdens. In Grutter v. Bollinger, 539 U.S. 306 (2003), the Supreme Court found the benefits to be so compelling to society that they were deemed to outweigh the burdens. Voters in Michigan and other states found otherwise and the Court in Schuette v. Coalition to Defend Affirmative Action, 572 U.S. — (2014) upheld their right to ban race-conscious admissions. Paradoxically, since the use of race as a “plus factor” by selective universities to admit a few underrepresented minority applicants makes possible a diverse learning environment that benefits all students on campus, the beneficiaries should far outnumber and outvote the few applicants who are displaced. But because those actually burdened are not known, the number of imagined victims is easily inflated in the mind of electorate. In highlighting this and other shortcomings of the Grutter regime, this article proposes that if the benefits of diversity outweigh the burdens, the universities should be able to demonstrate this favorable cost-benefit ratio by accommodating the real burden-bearers.
Accommodation could come in the form of direct compensation for the displaced students or indirect burden-shifting – getting others to give up their seats. Shifting the burden to those who are more willing to bear it can lower the cost of settlement. In-kind benefits and gifts could be used instead of monetary compensation. Addressing the displacement burden would reduce much of the grievances against racial preferences in admissions, and reveal to the public how little affirmative action affects the vast majority of applicants. Of course, it would impose costs on the university, but the willingness of universities to take on these costs also demonstrates their commitment to the benefits of diversity. A skeptical Court in Fisher v. University of Texas, 570 U.S. —- (2013) remanded for lower courts to determine whether race-conscious admissions are still necessary when the university was already achieving on-campus diversity through race-neutral means. Accommodation could provide a convincing showing that the extra benefits from using the race-plus factor are indeed worth the costs.
Lastly, accommodation would give universities a much stronger incentive to address the academic achievement gap across racial groups, which makes affirmative action necessary in the first place. Grutter permits the use of race in admissions for 25 years to eliminate this gap. But scant evidence of progress over the past decade raises concerns that the universities are perpetuating the gap by holding students of different racial groups to different standards. If accommodation is required, universities would find it in their interest to encourage those minority students who could be accepted with the help of the race-plus factor to improve their academic credentials further so they could be admitted without triggering the need to accommodate a displaced applicant. Only then will the gap start to narrow and lead to the realization of Grutter’s goal – achieving diversity without resorting to race-conscious means.
Recommended CitationTing Wang, Protecting Diversity in the Ivory Tower with Liability Rules, 35 Pace L. Rev. 661 (2014)
Available at: https://digitalcommons.pace.edu/plr/vol35/iss2/5