Protecting Diversity in the Ivory Tower with Liability Rules

Abstract

The two sides of the debate over race-based affirmative action in higher education tell two distinct stories – one of diversity’s benefits and the other of affirmative action’s burdens. In Grutter v. Bollinger, 539 U.S. 306 (2003), the Supreme Court found the benefits to be so compelling to society that they were deemed to outweigh the burdens. Voters in Michigan and other states found otherwise and the Court in Schuette v. Coalition to Defend Affirmative Action, 572 U.S. — (2014) upheld their right to ban race-conscious admissions. Paradoxically, since the use of race as a “plus factor” by selective universities to admit a few underrepresented minority applicants makes possible a diverse learning environment that benefits all students on campus, the beneficiaries should far outnumber and outvote the few applicants who are displaced. But because those actually burdened are not known, the number of imagined victims is easily inflated in the mind of electorate. In highlighting this and other shortcomings of the Grutter regime, this article proposes that if the benefits of diversity outweigh the burdens, the universities should be able to demonstrate this favorable cost-benefit ratio by accommodating the real burden-bearers.