Direct Measures: An Alternative Form of Affirmative Action

Abstract

This essay proposes an alternative form of affirmative action in legal education, one which does not rely on racial classifications, but nevertheless achieves many of the same goals as race-conscious affirmative action. Specifically, I suggest that law schools adopt a "direct measures" program that would grant admissions preferences on the basis of three criteria: (1) whether the applicant has experienced the effects of racial discrimination; (2) whether the applicant is likely to contribute a perspective or viewpoint on racial justice that is currently not well-represented in the classroom; and (3) whether the applicant is likely to provide legally undeserved communities with services and resources.

This program relies on race-neutral criteria to directly measure those qualities for which law schools have traditionally used race as a predictor. By relying on these race-neutral criteria, the program bypasses the constitutionally problematic use of race as a proxy, and directly measures whether applicants have these experiences, viewpoints and commitments without regard to racial identity. Justice Scalia himself has argued that programs targeting identified victims of discrimination do not constitute racial preferences, even if the majority of their beneficiaries are people of color, so long as they do not use racial identity as a proxy for identifying those victims. Nor is it a problem that the direct measures preferences target victims of discrimination. Indeed, in past equal protection cases, the Court has defined racial identity very narrowly, in a way that discounts any historical link between discrimination and a particular racial identity.

The essay anticipates and answers the argument that the program constitutes an impermissible attempt to create a racial classification under the pretext of a race-neutral program. Again, Scalia and the other conservative members of the Court have declared that remedying discrimination is a wholly legitimate and even desirable goal, not to mention a constitutional one, so long as government does not use racial classifications to achieve those goals. Recent voter redistricting cases make clear that so long as a program is targeted to capture theoretically race-neutral qualities (like political party affiliation), the program is constitutional even if there is significant historical overlap between those qualities and racial identity.