•  
  •  
 

Abstract

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater institutional efficacy, including possible race-neutral alternatives. The programs also failed to break down stereotypes through the introduction of a critical mass to empower diverse voices. The programs thereby resembled prohibited quotas or racial balancing. As such, the programs at issue violated Grutter, which still governs race-based affirmative action in college admissions. More importantly, the Roberts court paved the way for more expansive diversity-based admissions programs by permitting institutions to value individual racial experiences, which authentically further an institution’s mission and interests. After SFFA, the use of race as a factor could well face time limits. Contrastingly, individualized racial experiences may benefit college applicants at institutions that embrace diversity in an authentic way without facing any time limitation. Further, institutions with distinct missions may value diversity in a race-conscious way but without any racial preference. In sum, the Roberts Court guides the use of race in college admissions toward a race-neutral, diversity-based paradigm such that institutions may still unlock the empirically proven benefits of cultural diversity with only de minimus interference from the courts. This approach rests upon a powerful policy basis that leads to superior innovation, macroeconomic outcomes, social cohesion and, therefore, superior national security for the United States. This approach thus could support a powerful interest convergence.

Download

Included in

Accounting Law Commons, Administrative Law Commons, Admiralty Commons, Agency Commons, Agriculture Law Commons, Air and Space Law Commons, Animal Law Commons, Antitrust and Trade Regulation Commons, Banking and Finance Law Commons, Bankruptcy Law Commons, Business Organizations Law Commons, Civil Law Commons, Civil Procedure Commons, Civil Rights and Discrimination Commons, Commercial Law Commons, Common Law Commons, Communications Law Commons, Comparative and Foreign Law Commons, Computer Law Commons, Conflict of Laws Commons, Constitutional Law Commons, Construction Law Commons, Consumer Protection Law Commons, Contracts Commons, Courts Commons, Criminal Law Commons, Criminal Procedure Commons, Cultural Heritage Law Commons, Disability Law Commons, Disaster Law Commons, Dispute Resolution and Arbitration Commons, Education Law Commons, Elder Law Commons, Election Law Commons, Energy and Utilities Law Commons, Entertainment, Arts, and Sports Law Commons, Environmental Law Commons, Estates and Trusts Commons, European Law Commons, Evidence Commons, Family Law Commons, First Amendment Commons, Food and Drug Law Commons, Fourteenth Amendment Commons, Fourth Amendment Commons, Gaming Law Commons, Government Contracts Commons, Health Law and Policy Commons, Housing Law Commons, Human Rights Law Commons, Immigration Law Commons, Indigenous, Indian, and Aboriginal Law Commons, Insurance Law Commons, Intellectual Property Law Commons, International Humanitarian Law Commons, International Law Commons, International Trade Law Commons, Internet Law Commons, Judges Commons, Jurisdiction Commons, Jurisprudence Commons, Juvenile Law Commons, Labor and Employment Law Commons, Land Use Law Commons, Law and Economics Commons, Law and Gender Commons, Law and Philosophy Commons, Law and Politics Commons, Law and Psychology Commons, Law and Race Commons, Law and Society Commons, Law Enforcement and Corrections Commons, Law of the Sea Commons, Legal Biography Commons, Legal Education Commons, Legal Ethics and Professional Responsibility Commons, Legal History Commons, Legal Profession Commons, Legal Remedies Commons, Legal Writing and Research Commons, Legislation Commons, Litigation Commons, Marketing Law Commons, Medical Jurisprudence Commons, Military, War, and Peace Commons, National Security Law Commons, Natural Law Commons, Natural Resources Law Commons, Nonprofit Organizations Law Commons, Oil, Gas, and Mineral Law Commons, Organizations Law Commons, Other Law Commons, President/Executive Department Commons, Privacy Law Commons, Property Law and Real Estate Commons, Public Law and Legal Theory Commons, Religion Law Commons, Retirement Security Law Commons, Rule of Law Commons, Science and Technology Law Commons, Second Amendment Commons, Secured Transactions Commons, Securities Law Commons, Sexuality and the Law Commons, Social Welfare Law Commons, State and Local Government Law Commons, Supreme Court of the United States Commons, Taxation-Federal Commons, Taxation-Federal Estate and Gift Commons, Taxation-State and Local Commons, Taxation-Transnational Commons, Tax Law Commons, Torts Commons, Transnational Law Commons, Transportation Law Commons, Water Law Commons, Workers' Compensation Law Commons

Share

COinS