SJ Quinney College of Law, University of Utah
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Abstract

How is diversity measured? When is diversity sufficient? The Supreme Court has pressed these hard questions in affirmative action cases. With respect to college admissions, although a university campus might have a diverse student body, universities are beginning to justify the continuation of race-based affirmative action programs on the need for qualitative diversity, i.e., intraracial diversity—diversity within diversity.

In the Court’s most recent affirmative action case, Fisher v. University of Texas at Austin, the university advanced two novel diversity arguments, never before employed in affirmative action cases, to justify its race-based admissions policy: there is a lack of diversity within small courses of 5–24 students, and there is a lack of diversity among the admitted minority students. The minorities admitted through the state’s Top Ten Percent program, a neutral class rank program, typically consisted of those from lower socioeconomic backgrounds and who were the first in their family to attend college. The university argued that its race-based holistic admissions program was necessary to admit students who could bring viewpoints and experiences different from the students admitted through the Top Ten Percent Program. Others construed this argument as the university, in essence, wanting more privileged minorities with higher credentials.

This article explores the difficulties raised by the qualitative diversity argument and anticipates the challenges it might wreak upon the Civil Rights movement. This article cautions that a reliance on qualitative diversity to justify affirmative action undermines one of the bases upon which the Civil Rights movement was founded—to overcome racial stereotypes. An affirmative action program based on qualitative diversity also risks jeopardizing the legitimacy of affirmative action altogether when questions of deservedness within a race are raised and risks jeopardizing the united front needed to advance civil rights if people within a race are pitted against each other.

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