Digital Commons Network^™

Who’S In And Who’S Out? Can India’S Answer Help Us Determine Who Qualifies For Affirmative Action? , Sean A. Pager

ExpressO

Who should be the beneficiaries of racially targeted affirmative action? In its Croson decision, the Supreme Court answered part of the “Who Question” when it conditioned affirmative action eligibility on underrepresentation. What the Court did not tell us was underrepresentation of whom? The Court thus instructs us to select beneficiary groups by counting heads, but leaves open which heads get counted where and what categories to use.

By artificially separating what are necessarily related inquiries, the Court left a definitional lacuna that lower courts have struggled to fill. Such definitional issues matter because they often determine who benefits from affirmative …

The Journey From Brown V. Board Of Education To Grutter V. Bollinger: From Racial Assimilation To Diversity, Harry T. Edwards

Michigan Law Review

Fifty years ago, in Brown v. Board of Education, the Supreme Court confronted a precise and straightforward question: "Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities?" The Court's answer was precise and straightforward: "We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs ... are, by reason of the segregation complained of, …

Bakke To The Wall: The Crisis Of Bakkean Diversity, Gabriel J. Chin

William & Mary Bill of Rights Journal

In the years since the United States Supreme Court's affirmative action holding in Board of Regents v. Bakke, many educational institutions have struggled to apply Bakke's doctrine to their admissions policymaking. Professor Chin asserts that Bakke is incoherent because it does not explain whether the diversity it tries to foster is cultural or racial. Furthermore, he argues that neither a racial nor a cultural basis works under the Bakke scheme, leading to the difficulties schools confront in framing an affirmative action program.

Focusing on law school admissions policies, Professor Chin argues that because of Bakke's weakness as law, it is …