Vinay Harpalani, one of Chicago-Kent's new Visiting Assistant Professors, was recently mentioned in Lawrence Solum's Legal Theory Blog for a piece of current scholarship titled "Diversity within Racial Groups and the Constitutionality of Race Conscious Admissions." The article, which will appear in the forthcoming fall issue of the University of Pennsylvania Journal of Constitutional Law, addresses key issues in the upcoming Fisher v. University of Texas at Austin Supreme Court case. The Court will hear this case on Wednesday, October 10. Here is the abstract for the article:
"This Article offers a novel doctrinal resolution of the key issues in Fisher v. Texas, the impending Supreme Court case which involves race conscious admissions policies at the University of Texas at Austin (UT). The resolution proposed here addresses Justice Anthony Kennedy’s concerns about race conscious policies, but also preserves most of the Court’s 2003 Grutter v. Bollinger ruling, in spite of the fact that Justice Kennedy dissented in Grutter. Substantively, the Article clarifies the key issues in Fisher (the meaning of “critical mass” and the scope of deference that courts give to universities) by focusing on a simple idea that permeates Grutter and Fisher but has not been explicated to date: the significance of diversity within racial groups. It argues that under Grutter, a race conscious policy can aim not only to increase minority representation overall, but also to increase diversity within racial groups — a point which has not been discussed in the Fisher litigation or in scholarly discourse.
Moreover, the Article contends that diversity within racial groups is key to understanding the constitutionality of race conscious admissions policies for several reasons: 1. Within-group diversity elucidates clearly how a “critical mass” of minority students is different from numerical goals and quotas; 2. Within-group diversity directly reflects the compelling interest in educational diversity at the classroom level that was articulated in Grutter — the breakdown of racial stereotypes and the facilitation of cross-racial understanding through admission of a “critical mass”; 3. A holistic admissions policy that emphasizes within-group diversity reduces the stigmatic harm of race conscious measures; and 4. Attaining diversity within racial groups necessitates a degree of deference to universities in their admissions policies. Nevertheless, after reviewing the basic issues in Fisher, the Article also illustrates how the Fifth Circuit could have been less deferential to UT in its Fisher ruling. It distinguishes between three different categories of deference to universities — implementation of race conscious policies, educational objectives related to racial diversity, and need for race conscious policies — and analyzes the appropriate standard of review for each. The third category, need for race conscious policies, is the issue at play in Fisher, and the Article contends that Justice Kennedy’s view on this issue will be outcome determinative in Fisher. The Article then proposes a different analysis to decide Fisher — the “unique contribution to diversity” test — which focuses on within-group diversity and applies strict scrutiny rather than the “good faith” standard adopted by the Fifth Circuit. These distinctions are directly reflective of the concerns raised in Justice Kennedy’s Grutter dissent. Finally, the Article highlights a key values conflict that Justice Kennedy will face when deciding Fisher: the tension the case presents between diversity in higher education and racial segregation in K-12 schooling."
Download the paper here, and be on the lookout for further news regarding Professor Harpalani and the Supreme Court case this fall.
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