Academic journal article Harvard Law Review , Vol. 124, No. 2
Diversity in education, and the means of attaining it, has been one of the most controversial legal issues in modern American history. (1) The Supreme Court has upheld the use of affirmative action in the college admissions process as a means of attaining a critical mass of racial minorities, which is necessary to create a diverse educational setting to facilitate interactions among students of diverse backgrounds and the accompanying robust exchange of ideas. (2) The positive effects of interactional diversity are well documented (3) and have formed the basis of a compelling interest justifying racial preferences in the admissions processes of public universities. (4)
Receiving less scholarly attention is the crucial link connecting the critical mass of minority students to these positive results. (5) While it is true that race-based admissions may be a necessary precondition to robust interactional diversity, admissions alone is not enough. (6) Racial clustering abounds on college campuses and can detract from the full potential of universities to reap the benefits of their numerically diverse classes. (7) If interactional diversity is indeed a compelling interest under the strict scrutiny standard the Court has applied, then colleges should be actively seeking to promote these interactions through means other than admissions policies. The failure to implement simple and relatively costless policies, such as removing barriers to roommates of different races and assigning seats at random in classes, calls into question the seriousness of the diversity rationale. Further, failure to implement such policies could violate the narrow tailoring prong, if the failure to do so means that universities could achieve the same amount of diversity through methods that do not depend on affirmative action-type racial classifications at the point of admissions.
This Note thus argues that, under the Court's equal protection doctrine, institutions using affirmative action in admissions should be required to implement post-admissions policies to promote interactional diversity. Part I sets the legal framework, tracing the Supreme Court's jurisprudence from Regents of the University of California v. Bakke (8) through Parents Involved in Community Schools v. Seattle School District No. 1, (9) and argues that universities' compelling interest in diversity extends only to the educational benefits of a diverse class, not the racial proportions of the class itself. Part II discusses the empirical literature on promoting interactional diversity, including reforms that may prove useful for college campuses. Part III argues that adoption of the policies in Part II is not merely advisable but constitutionally required; failure to adopt institutional reforms to promote interactional diversity post-admissions renders preadmissions use of racial preferences unconstitutional. Part IV concludes.
I. THE LEGAL FRAMEWORK
Bakke, the University of Michigan Cases, (10) and Parents Involved stress educational diversity as a compelling interest that can satisfy the strict scrutiny applied to racial classifications, including affirmative action. "Diversity," however, can mean different things, and not every definition may constitute a compelling interest. Sociology identifies three dimensions of diversity: structural diversity, interactional diversity, and diversity-related initiatives. (11) Structural diversity is "the numerical and proportional representation of students from different racial/ethnic groups in the student body." (12) Interactional diversity "is characterized by students' exchanges with racially and ethnically diverse people as well as diverse ideas, information, and experiences." (13) Diversity-related initiatives, such as workshops and ethnic studies courses, are not directly implicated by admissions processes but will be discussed later for their ability to magnify the effects of structural diversity and interactions. …