Joni Hersch

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Tulane Law Review

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racial injustice, affirmative action, elite educational institutions


Civil Rights and Discrimination | Education Law | Law


Recent events have brought heightened attention to racial injustice in the United States, which includes among its legacies a dearth of Black people in influential positions that shape society. But at the same time that the United States has turned its attention to diversity in leadership positions, the already narrow pipeline for those from underrepresented groups is likely to narrow even further in the near future. Specifically, the pipeline to influential positions in society typically flows from an elite education. Race-conscious affirmative action in higher education admissions is currently permitted in order for universities to meet their compelling interest in pursuing the educational benefits of a diverse student body. But the legality of affirmative action, which plays a prominent role in creating a diverse student body at elite educational institutions, is under attack, with the lawsuit Students for Fair Admissions v. Harvard expected to soon reach the United States Supreme Court--a Court that is not expected to be supportive of affirmative action--at which time race-conscious affirmative action may be banned nationally.

In this Article, I develop and provide an empirical basis for an expanded understanding of the educational benefits provided by affirmative action: namely, of fostering a pipeline of future societal leaders and professionals. A simple benefit-cost analysis indicates that full consideration of the benefits stemming from the compelling interest of diversity in education would imply fewer not more, restrictions on consideration of race in admissions. Using data on nearly 500,000 college graduates, I demonstrate that the likelihood of earning a professional or graduate degree--an outcome that is closely linked to employment in influential positions--drops off dramatically in the universities attended by the majority of college graduates, as compared with elite universities that use affirmative action. Further, race is a relatively unimportant predictor of professional or graduate degree attainment among graduates of similarly elite schools. Curtailing race-conscious affirmative action would thereby exclude many students from underrepresented minority groups who would successfully earn professional and graduate degrees--and later enter into influential positions that shape society.

As a consequence of the current lack of diversity in leadership, communities of color are left not only with limited power to advance their own interests, but a short supply of professionals to serve their communities with essential legal and medical services, and a restricted network through which those from underrepresented groups can advance their individual success and that of others in their community. Should affirmative action fall, the enrollment of underrepresented minorities in elite institutions will decline, further exacerbating the underrepresentation of minorities in positions of influence. The already existing lack of diversity in leadership roles impairs our nation's efforts to reckon with its history of racial injustice.



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