St. John's Law Review

Retargeting Affirmative Action: A Program to Serve Those Most Harmed by Past Racism and Avoid Intractable Problems Triggered by Per Se Racial Preferences

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.