By: Mark Nadel
The recent Supreme Court decision in Grutter v.
Bollinger, upholding the constitutionality of an affirmative
action program, has faced several criticisms from the legal
community. This Article addresses these criticisms and proposes
reform ideas to alleviate the negative effects of affirmative
action, while retaining the positive outcomes. The Article views
affirmative action as a policy for eradicating discrimination and
presumes that a fair process will produce a racially and ethnically
diverse student body.
One criticism of the current racial preferences in affirmative
action is that affirmative action programs neglect those most in
need of help. Often, by the time disadvantaged students apply to
college, they are perceived as beyond the help of affirmative
action. This Article proposes that colleges should take affirmative
action to the next level and prepare disadvantaged students for
secondary education, rather than simply admitting the best of the
disadvantaged students, as the current system allows. This is not a
foreign concept, as college missions have traditionally included
public service among their goals. The plan proposed by the
Article would assist younger disadvantaged students as well as
those already admitted to school under affirmative action plans.
Current college students would be required to participate in
tutoring and mentoring programs in under-served communities. Prior
service to the community would be considered when applicants apply
to universities and would positively influence the admission
decisions. Ultimately the younger students would benefit from the
program and would become better applicants for universities in the
future.
Another problem with current per se racial preferences is that
it is difficult to determine which minority groups should receive
the greatest preference, which individuals qualify as members of
such preferred groups, and how large a preference can be awarded.
In addition, minority students currently admitted under the per se
programs may have little interest in furthering diversity or may
feel too isolated to make such attempts. There is little doubt that
a diverse student body is beneficial to students, however a student
body selected by race-neutral means is more valuable than one
selected by per se racial preferences. Because past discrimination
can mask individual achievements, a purely merit-based admissions
process is not possible to achieve diversity. But achieving
diversity via a process based on merit, rather than race, is
possible if admission selectors determine which academic records
are distorted and how much to adjust them. This Article proposes
that schools individually and holistically evaluate applicants and
give credit for obstacles that individuals overcome among other
criteria determinative of their ability to add diversity to the
student body, while devaluing national test scores. The program
would include a checklist for applicants to identify successes and
additional qualities that would enable them to add diversity and
comfort and support members of minority groups feeling isolated.
The plan also includes an apprenticeship-like program at
universities in which minority students are admitted on a
probationary basis. While this plan is more expensive and time
consuming than current per se preference plans, it is worthwhile.
In addition, features like the checklist can cut down on the
costs.
Current affirmative action programs neglect those suffering most
from the effects of past and present racism. In addition, the per
se preferences of these programs fail to take into account the
value of admitting disadvantaged minority students who have
overcome past obstacles and have the ability to enrich diversity on
campus and provide a supportive environment for fellow minority
students. This Article’s plan is a step in the right direction
towards a diverse student body that is selected by race-neutral,
but raceconscious, means, thereby furthering the goals of
affirmative action while tempering the negative side-effects.