A New Approach to Education Affirmative Action

Abstract

In light of the Supreme Court’s recent decision to uphold the race-conscious affirmative action program at the University of Texas, this Note examines the increasingly vexing challenges posed by the current race-based university affirmative action and explores a possible alternative to this contentious practice. I argue that the Court’s 2003 affirmative action precedent, Grutter v. Bollinger, is questionable because it presents an unresolvable definitional conundrum regarding the logical endpoint of Michigan Law School’s affirmative action program. Inheriting this conundrum from Grutter, the Court’s Fisher II decision is also constitutionally untenable but nonetheless understandable against the social backdrop of escalating racial tension. With emerging social science arguments against race-conscious affirmative action and the precarious constitutional ground of it, I then propose a constitutionally-robust, two-pronged alternative in which affirmative action jurisprudence is better used to balance competing societal interests in affording equal opportunity to historically disadvantaged groups and equal treatment of all individuals. The first prong is to implement affirmative action programs in public elementary and secondary schools, in the context of the continuing school desegregation movement, to provide requisite resources and opportunities for minority students early on in their lives. The second prong is to establish a class-based affirmative action model in which universities, in addition to assessing applicants’ academic and extracurricular credentials, target such socioeconomic factors as income, wealth, family background, schooling opportunities and neighbourhood demographics to review the applicants on a truly holistic basis.