The New Affirmative Action after Fisher v. University of Texas: Defining Educational Diversity Through the Sixth Amendment's Cross-Section Requirement

Abstract

Skin color and diversity are not synonymous, and race provides no basis upon which to stereotype individuals or groups, regardless of whether the reasons are malevolent or benign.

Affirmative action policies in higher education should focus on the things that individuals have overcome, not the traits that individuals — and groups — cannot change. Currently, the opposite is true, as such policies typically equate racial diversity with educational diversity, thereby precluding consideration of factors such as family and personal background, life experience, and the overcoming of adversity that would result in true educational diversity.

This is not to say that race is irrelevant, as studies have shown that race contributes to achieving a diverse student body. The problem is that, by foreclosing a more searching review of every applicant’s background, universities achieve, at best, an incomplete form of diversity that undermines, rather than furthers, the goal of creating a diverse and intellectually stimulating classroom environment.

This essay proposes that affirmative action programs should reflect a more comprehensive and empirically-sound definition of diversity. To do so, universities should adopt the framework created by the United States Supreme Court when interpreting the Sixth Amendment’s requirement that juries represent a cross-section of the community. Under this approach, although defendants are entitled to a jury that represents a cross-section of the community, such cross-section need not mirror a community’s racial and ethnic composition. By refusing to construe the cross-section requirement along racial and ethnic lines, the Court has implicitly recognized that a cross-section of the community can be realized by considering individual factors versus immutable characteristics.

Affirmative action policies that embrace the concepts underlying the Court’s cross-section jurisprudence would achieve a more meaningful type of educational diversity that reflects the various life experiences, adversities and backgrounds that shape an individual’s perspective and worldview. This approach would also recognize that race is neither a proxy for diversity nor a basis upon which to make judgments about individuals. Indeed, until affirmative action programs employ more holistic and individualized admissions practices, the use of race and ethnicity as measures of individuality will continue to be as prevalent in modern society as it was during the Jim Crow era.

Keywords: affirmative action, fisher v. university of texas, regents of the university of california v. bakke

JEL Classification: K40, K41