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Excerpted from: Stacy Hawkins, Race-conscious Admissions Plans: An Antidote to Educational Opportunity Hoarding? , 43 Journal of College and University Law 151 (2018) (92 Footnotes) (Full Document)


StacyLHawkinsRace-conscious admissions plans (“RCAPs”) ”) in higher education have had a fraught legal history. Supreme Court cases adjudicating Race-conscious admissions plans (“RCAPs”) have often been decided by razor-thin margins; and despite the Court's now repeated approval of the use of race in college and university admissions, the possibility of reversal always seems imminent. Author Vernon Francis chronicles this tortured history in his article Living with Uncertainty: Fisher v. University of Texas and Race-Conscious College Admissions. The most recent episode in this ongoing saga is the Supreme Court's 2016 decision in Fisher v. Texas (“Fisher II”). Although the Supreme Court once again upheld the use of race in higher education admissions, the outlook remains uncertain.

Francis rightly observes that Justice Ginsburg is almost certainly mistaken in her post-Fisher prediction that, “we're [not] going to see another affirmative action case ... at least in education.” Justice Ginsburg's optimism belies the deep internal tensions that have long divided the Supreme Court over this issue, which Francis deftly analyzes. In particular, Francis identifies lingering uncertainty over the evidence colleges and universities will need to proffer in support of Race-conscious admissions plans (“RCAPs”) in order to survive future constitutional challenges. Social scientists Liliana Garces, Patricia Marin, and Catherine L. Horn also investigate this evidentiary quagmire in their article, The U.S. Supreme Court's Use of Non-Legal Sources and Amicus Curie Briefs in Fisher v. University of Texas. Both articles offer helpful guidance on how colleges and universities can meet their evidentiary burdens in future cases even as they acknowledge that the legal uncertainty surrounding Race-conscious admissions plans (“RCAPs”) is likely to persist. Perhaps more important than this legal uncertainty over Race-conscious admissions plans (“RCAPs”) , Justice Ginsburg's optimism about the finality of Fisher II overlooks the larger public debate that continues to rage over whether to permit the consideration of race in deciding whom to admit to the nation's most selective colleges and universities. This national debate over Race-conscious admissions plans (“RCAPs”) focuses more heavily on the practical rather than the legal consequences of allowing race and ethnicity to be considered in deciding whom to admit to the nation's most selective colleges and universities. Rather than emphasizing the need for constitutional colorblindness as legal challenges often do, this practical opposition suggests that Race-conscious admissions plans (“RCAPs”) betray a commitment to principles of meritocracy. The problem with this opposition argument is that the demand for race-neutrality in college and university admissions may be less about the espoused principles of meritocracy than an unwitting cover for opportunity hoarding of scarce educational resources. If this is true, then rather than frustrating our egalitarian ideals as legal challengers suggest, Race-conscious admissions plans (“RCAPs”) may actually help further the constitutional guarantee of equality by ensuring that underrepresented minorities have equal access to elite institutions of higher education. Instead of focusing on the disagreement over the legal standards permitting colleges and universities to adopt Race-conscious admissions plans (“RCAPs”) , this article explores the practical implications of the opposition's demand for race-neutral admissions. In particular, the article considers whether the insistence on race-neutral admissions is less about meritocracy than an attempt at educational opportunity hoarding, and if so whether Race-conscious admissions plans (“RCAPs”) can serve as an effective antidote to this problem.

. . .

Contrary to Justice Ginsburg's post-Fisher prediction, we are continuing to see challenges to Race-conscious admissions plans (“RCAPs”) in higher education, and fundamental legal questions about the constitutionality of any governmental uses of race are likely to continue to divide both the Court and litigants in these cases. Perhaps the question we ought to be asking is not whether Race-conscious admissions plans (“RCAPs”) are constitutionally permissible, but whether as both a practical and legal matter the insistence on race-neutral “meritocratic” admissions in higher education can be justified. Or, whether the demand for race-neutral admissions is less about meritocracy and more about the hoarding of scarce educational resources by those who are already advantaged, while propounding harm to those who are already disadvantaged by the existing system of racially segregated and unequal education in America. If the meritocracy argument is nothing more than a subterfuge for perpetuating categorical racial inequalities in education specifically and society more generally, it cannot be countenanced. Instead, Race-conscious admissions plans (“RCAPs”) can serve as an effective antidote to the problem of educational opportunity hoarding by disrupting the disparate allocation of advantages and disadvantages based on race that have long defined education in America.

Associate Professor, Rutgers Law School.