Race-Conscious Admissions, Diversity, and Academic Freedom

Abstract

This Essay examines the First Amendment component to race-conscious admissions policies. It argues that these policies reflect a core First Amendment value: academic freedom. It illustrates that race-conscious admissions policies promote academic freedom in two ways. One aspect of a university’s academic freedom is the selection of its own student body. Justice Felix Frankfurter stated this explicitly in his concurrence in Sweezy v. New Hampshire (1957), which was later cited in Justice Lewis Powell's influential concurrence in Regents of the University of California v. Bakke (1978). Additionally, the compelling interest in diversity has roots in the First Amendment. By facilitating the admission of a more diverse student body, race-conscious admissions policies contribute to the “marketplace of ideas” on campus -- thus embodying the values inhering from freedom of speech. The Essay also examines how the marketplace rationale is more availing in the context of student diversity than it is in the production of scholarship.