Life After Bakke Where Whites and Blacks Agree: Public Support for Fairness in Educational Opportunities

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Harvard Blackletter Law Journal

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This Article examines data on public opinion to determine what criteria the public favors in making difficult admissions decisions. Obviously, notions of merit 2 are central to resolving this complicated issue. The data from a national survey vignette designed by the lead author of this Article confirms that neither whites nor blacks believe that an applicant's race alone is a sufficient sign of merit to be used as a tie-breaker between two similarly advantaged applicants competing for admission to a state university. This may not be surprising given that determinations of merit usually involve an examination of an individual's past actions and behaviors, which can be used to assess his or her worthiness for future rewards. Jeremy Waldron has further refined our conception of merit by distinguishing two types. According to Waldron, backwards-looking merit takes into consideration a person's past acts and achievements, whereas forward-looking merit focuses more on what one might become in the future. 3 In the context of admissions, these two conceptions of merit may lead to the selection of different students. In this Article, we argue that the American public has a more expansive notion of merit than the leading protagonists in the affirmative action debate. The first Part of this Article presents a synopsis of the increasingly critical judicial treatment of affirmative action programs from Bakke to Hopwood. This Part also details the issues involved in the two currently pending cases that challenge the University of Michigan's admissions policy. It is widely believed that these cases will provide the vehicle for the Supreme Court to review the constitutionality of the current admissions policy regime. Part II focuses on the importance of public opinion and examines the existing body of survey data on affirmative action. While conventional wisdom holds that blacks and whites are quite polarized in their views on affirmative action, surveys reveal substantial agreement between the races on many important issues. Part InI describes the findings of a vignette embedded in a national survey that probes what Americans think should happen when two applicants from different social classes compete for the same freshman slot. This experimental research provides insight into the conceptions of merit held by the American public as well as the types of diversity-enhancing programs that the public may be willing to support. Assuming, as many observers do, that race-conscious affirmative action is doomed to extinction, the fourth section provides a discussion of African Americans' educational prospects after Bakke.

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