In 1951, a promising young student submitted his application to the School of Theology at Boston University.1 His application was compelling but contained a Graduate Record Exam (GRE) verbal score that was well below average.2 The test score surely did not reflect the student’s actual aptitude; the student, who was Black, grew up in a country with an education system designed to disadvantage him.3 But those who looked to the GRE as a measure of ability would have been shocked to know that the student behind that below-average verbal score would become one of America’s greatest orators. Dr. Martin Luther King Jr.’s verbal aptitude was not the problem. The problem was that admissions officers could not ascertain Dr. King’s verbal aptitude without considering all the disadvantages he faced.
That problem continues to bedevil admissions offices today. Universities cannot accurately determine applicant potential without considering the many ways in which race disadvantages minority applicants. But the Supreme Court allows universities to justify race-conscious admissions policies only in the interest of promoting diversity — a worthy aim,4 but one that has led to institutional insincerity5 and doctrinal morass.6
This Note argues that the Court should recognize a new compelling interest for university affirmative action. Call this interest “discrimination blocking.”7 Discrimination blocking recognizes that universities must take account of applicants’ race to accurately ascertain applicants’ potential. It is an application of Aristotle’s commonsensical observa-tion that an archer must account for wind to hit a target. And it is a justification for affirmative action that the Court has written of approvingly — but has yet to consider as a compelling interest.
This Note provides a defense of discrimination blocking as a compelling interest. Part I summarizes the doctrinal framework of affirmative action, highlighting some of its inconsistencies. Part II argues that a new compelling interest may untangle the doctrine. It argues that discrimination blocking is compelling, that it can be narrowly tailored, and that it is good doctrine and policy. Part III defends discrimination blocking from various criticisms. With diversity-based affirmative action under unprecedented pressure, discrimination blocking offers a solid foundation for affirmative action.
I. Affirmative Action’s Doctrinal Framework
The Court has long subjected affirmative action to strict scrutiny, requiring that race-conscious programs be narrowly tailored to further compelling government interests.8 This Note argues that discrimination blocking can justify affirmative action within the strict scrutiny framework. But first it is worth highlighting affirmative action’s doctrinal context: the other compelling interests the Court has considered and the narrow tailoring commands it has provided.
A. Compelling Interest
Proponents of affirmative action have offered many compelling interests to justify race-conscious programs. This section examines the two interests to which the Court has paid most attention: remedying past societal discrimination and promoting diversity.9
1. Rejecting the Compensatory Interest. — The original purpose of affirmative action was to remedy past societal discrimination.10 The basis for this compensatory interest is an intuitive type of rough justice: a person who has suffered from wrongdoing is entitled to compensation from the wrongdoer.11 As Justice Marshall observed, the American story “is not merely the history of slavery alone but also that a whole people were marked as inferior by the law.”12 This history of racial subordination made “it difficult for [him] to accept that [Black people] cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination.”13 Proponents of the compensatory interest argue it has straightforward moral force: if America has a history of racial subordination14 and if justice requires righting wrongs, racial preferencing should be — if not obligatory — permissible.
But the compensatory interest never gained traction. In the earliest days of affirmative action litigation, Justice Powell’s pivotal Regents of the University of California v. Bakke15 opinion deemed past societal discrimination “an amorphous concept of injury that may be ageless in its reach into the past.”16 The Court confirmed its disavowal of the compensatory interest in subsequent cases, rejecting “a generalized assertion that there has been past discrimination” for its lack of legislative limits and guidance.17 The compensatory interest, with its backward-looking focus, never gained acceptance from the Court.
2. Accepting the Diversity Interest. — Forward-looking interests, specifically those related to diversity, have fared better. “[T]he attainment of a diverse student body . . . clearly is a constitutionally permissible goal,” Justice Powell established in Bakke.18 Subsequent and bipartisan criticism of the diversity interest notwithstanding,19 the Court has made clear that student-body diversity is compelling for both expression- and civic-based reasons.
Because, noted Justice Powell, a diverse student body contributes “to the ‘robust exchange of ideas,’ [it] invokes a countervailing constitutional interest, that of the First Amendment.”20 Twenty-five years later, the University of Michigan Law School defended its affirmative action policy along similar lines, arguing that “diversity . . . has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.”21 Justice O’Connor agreed: diversity “promotes ‘cross-racial understanding,’ helps to break down racial stereotypes, and ‘enables [students] to better understand persons of different races.’”22 These benefits, she concluded, make classrooms “livelier, more spirited, and simply more enlightening and interesting.”23 As a result, universities may admit a “critical mass”24 of minority students, such that students glean the “educational benefits that diversity is designed to produce.”25
But, according to Justice O’Connor, diversity is not merely pedagogical. Civic legitimacy, she noted, requires “the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”26 Because universities train the nation’s leaders,27 higher education diversity is necessary “to cultivate a set of leaders with legitimacy in the eyes of the citizenry.”28 This civic-based conception of diversity29 might have had far-reaching implications. It could have been interpreted to weaken Bakke’s categorical prohibition on compensatory interests30 or to allow ambitious integration projects.31
Elites, to be legitimate, must serve a representative function: they must be capable of and dedicated to representing the concerns of people from all walks of life, so that the policies they forge are responsive to these concerns. An elite drawn only from segments of society that live in isolation from other segments will be ignorant of the circumstances and concerns of those who occupy other walks of life.
Elizabeth S. Anderson, Racial Integration as a Compelling Interest, 21 Const. Comment. 15, 22 (2004). But since Grutter v. Bollinger,32 the Court has remained largely silent on Justice O’Connor’s civic theory of diversity.
Indeed, many commentators expect today’s conservative Court to reject the diversity interest altogether.33 Just two months ago, the Court heard the first challenge to university affirmative action since Fisher v. University of Texas at Austin34 (Fisher II) in 2016. Students for Fair Admissions, Inc. v. President & Fellows of Harvard College35 challenges Harvard College’s affirmative action program36 and takes direct aim at diversity as a compelling interest.37 According to petitioner, the “diversity rationale is not only uncompelling; it flouts basic equal-protection principles.”38 Despite forty-four years of diversity as an accepted compelling interest, the Court may agree.39 It is more important than ever to consider different foundations for affirmative action.
B. Narrow Tailoring
It is not enough for affirmative action policies to serve a compel-ling state interest. They must also be narrowly tailored to achieve that interest. The requirements of narrow tailoring are varied. But through these varied commands, a consistent thread has emerged: admissions determinations must remain individualized. From Bakke,40 to Grutter,41 to Fisher v. University of Texas at Austin42 (Fisher I), to Parents Involved in Community Schools v. Seattle School District No. 1,43 the Court has consistently demanded that affirmative action programs prioritize individual-level determination over racial group membership.44
Though the individualization principle is simple enough, the Court’s additional narrow tailoring commands constitute a hodgepodge of requirements. Because universities may not engage in “outright racial balancing,”45 they may not utilize quotas.46 Because universities may not institute policies that operate mechanically,47 they may not assign “every underrepresented minority applicant the same, automatic 20-point bonus.”48 Universities must engage in a “serious, good faith consideration of workable race-neutral alternatives,”49 must use race as no more than a “plus” factor,50 and must ensure race does not become “determinative”51 or “defining”52 for any applicant.
Put together, the Court’s compelling interest and narrow tailoring commands create some tension. To justify affirmative action programs, universities must seek to admit a “critical mass” of minority students.53 Universities cannot numerically define “critical mass”; that would be outright racial balancing. Instead, “critical mass” is the number of minority students necessary to achieve “the educational benefits that diversity is designed to produce.”54 Taking these definitions at face value, diversity is defined by critical mass, and critical mass is defined by achieving the benefits of diversity. Perhaps a nuanced issue calls for a nuanced doctrine.55 But even at best, these conflicting definitions make the narrow tailoring inquiry difficult. Recognizing a different compelling interest — discrimination blocking — would resolve this tension.
II. Discrimination Blocking as a Compelling Interest
Discrimination blocking is neither a backward-looking attempt to compensate for past racial subordination56 nor a forward-looking attempt to cultivate diversity.57 It is rather a present-centered effort to accurately ascertain applicant potential and thus glean the societal benefits produced by a high-quality higher education system. Discrimination blocking is an acknowledgement of Aristotle’s simple point that an archer must account for wind to hit a target.58
A. Discrimination Blocking Is a Compelling Interest
1. Discrimination-Blocking Background. — The discrimination-blocking rationale is founded on a simple realization: despite a web of antidiscrimination law, discriminatory outcomes persist.59 Administrative agencies charged with enforcing antidiscrimination laws have long recognized that eliminating discriminatory outcomes requires more than antidiscrimination law; it requires affirmative action.60 And though the Court has not considered discrimination blocking as a compelling interest, the idea that university affirmative action could be justified as a countermeasure to slanted admissions metrics has origins in the earliest affirmative action cases.61 In Bakke’s footnote forty-three, Justice Powell acknowledged that “[r]acial classifications in admissions conceivably could serve [another] purpose, one which petitioner does not articulate: fair appraisal of each individual’s academic promise in the light of some cultural bias in grading or testing procedures.”62 For Justice Powell, using race to “cur[e] established inaccuracies in predicting academic performance . . . is no ‘preference’ at all.”63
Professor Devon Carbado has contended that accepting Justice Powell’s argument entails rejecting the application of strict scrutiny to affirmative action.64 In a recent Students for Fair Admissions amicus brief, Professors Jonathan Feingold and Vinay Harpalani echo this argument.65 They further assert that affirmative action is necessary not only to counter minority-applicant disadvantage but also to counter certain admissions processes that favor White applicants.66 These are astute points. But endorsing these more ambitious arguments is not necessary to accept that countermeasures may justify a new compelling interest. The remainder of this Note sketches that interest, arguing that within the strict scrutiny regime, affirmative action as a countermeasure — that is, using affirmative action to block discrimination — is a compelling interest that can be narrowly tailored.
2. Ascertaining Applicant Potential Is a Compelling Interest. — Though strict scrutiny “ranks among the most important doctrinal elements in constitutional law,”67 the Court has never answered a question central to its formula: what is a compelling interest?68 One scholar called the Court’s compelling interest approach “astonishingly casual”69; another likened it to Justice Stewart’s “I know it when I see it.”70 The opacity of compelling interests notwithstanding, the Court has established a bevy of them. They include: preventing the appearance of corruption,71 teaching students appropriate behavior,72 preserving favorable public perception of state judiciaries,73 shielding children from pornography,74 and promoting diversity in higher education,75 among others. In an effort to impose some order on the doctrine, courts and commentators have tried to group these interests in various categories. This Note highlights two: interests derived from constitutional text and interests that preserve some core value. Ascertaining applicant potential fits well in each category.
Deriving compelling interests from constitutional text makes intuitive sense, and Bakke presents a foremost instance of doing so. For Justice Powell, student body diversity was compelling because it invoked First Amendment freedom of expression.76 In a similar vein, the Court asserted in Roberts v. United States Jaycees77 that eradicating private discrimination was compelling due to the Equal Protection Clause, which abhors treating individuals in a manner that “bear[s] no relationship to their actual abilities.”78
These constitutional provisions support discrimination blocking too. The mission statement of the University of California (UC) demonstrates the expression-based importance of accurately ascertaining applicant ability: “UC provides a unique environment in which leading scholars and promising students strive together to expand fundamental knowledge of human nature, society, and the natural world.”79 Promising students are an essential component of UC’s mission. They create an “enlightening” academic environment — an environment the Court has already acknowledged is compelling.80 Jaycees’s equal protection formulation similarly supports accurately ascertaining applicant potential as compelling. The entire point of discrimination blocking is to ensure that admissions determinations do “bear [a] relationship to [students’] actual abilities.”81
Another group of compelling interests preserves certain social or civic values. These interests are many and varied; this Note high-lights three: In Williams-Yulee v. Florida Bar,82 the Court found that preserving favorable public perception of state judiciaries was compelling.83 In Burson v. Freeman,84 a plurality found that preserving electoral fairness was “obviously” compelling.85 And in Bethel School District No. 403 v. Fraser,86 the Court found that suppressing lewd student speech in order to teach “socially appropriate behavior” was compelling.87
The contours of this group are admittedly vague and may be defined more accurately by what they are not: tethered to constitutional text. That said, if promoting social or civic values is important in establishing a compelling interest, discrimination blocking is well positioned. As UC makes clear, admitting promising students does more than promote an expressively “enlightening” classroom. These students “keep[] the California economy competitive” and “contribute to the needs of a changing society.”88 UC’s programs net the state “billions of tax dollars, economic growth . . . , agricultural productivity, advances in health care, [and] improvements in quality of life.”89 In short, these students make “substantial economic and social contributions.”90
If the state has an interest in preserving favorable public perception of state judiciaries,91 it should have an interest in maintaining public faith in universities, the training grounds for the nation’s leaders.92 If the state “obviously” has an interest in preserving the reliability of elections,93 it may well have an interest in preserving the reliability of admissions judgments. If the state has an interest in suppressing lewd student speech to teach manners,94 it surely has an interest in admitting students who will best serve society. The problem — and the reason this interest justifies affirmative action — is that universities cannot tell which applicants are best equipped to serve society95 without considering an applicant’s race.96
B. Discrimination Blocking Can Be Narrowly Tailored
Discrimination-blocking programs can be narrowly tailored because research has demonstrated that race, independent of other factors like wealth or parental education, creates disadvantages that result in the underestimation of minority applicants’ potential. For example, researchers have found that a phenomenon called stereotype threat97 — anxiety that performance in a stigmatized context will confirm the stigma — can depress test scores. A Stanford study found strong evidence of stereotype threat in Black students’ test performance.98 In the study, two groups of students were given the same verbal GRE. One group was told the exam was simply a lab exercise, while the other was told the exam tested intellectual ability.99 The Black participants performed as well as the White participants on the lab exercise but “greatly underperformed White participants in the diagnostic condition.”100 The external manifestation of what Justice Sotomayor deemed “that most crippling of thoughts,”101 stereotype threat makes standardized tests defective measures of applicant ability.
Universities also consider applicants’ grades and recommendations, but these metrics suffer from further problems. For decades, studies have indicated that teachers both perceive and treat White students more favorably than Black students.102 This injustice is compounded by the fact that teachers’ perceptions influence Black students’ performance three times more than White students’.103 And many researchers have isolated race as the specific factor causing the unequal treatment.104 But an admissions office shifting from external assessments — like tests, grades, and recommendations — to internal assessments — like interviews — does not solve the problem either. Interviews are particularly subject to implicit racial bias,105 and they do nothing to ameliorate other disadvantages like stereotype threat.
Crucially, researchers have begun to separate the impact of race from other factors. A regression analysis of UC applicants, for example, has shown that “race has a large, independent, and growing statistical effect on students’ SAT/ACT scores after controlling for other factors.”106 Additionally, researchers have begun to measure the disadvantage with a numerical specificity that makes narrow tailoring easier. Another study found that “Black students were predicted to score 104 points lower than Whites” while controlling for other variables.107 Precise social science allows for precise narrow tailoring. If a university can demonstrate that race independently disadvantages Black students by 104 SAT points, the university should be able to view Black applicants’ SAT scores 104 points more favorably.108 At the very least, preventing the university from considering this disadvantage alongside other considerations is sure to result in assessments that are less accurate. Acknowledging racial disadvantage is not racial preferencing; it is merely removing bias from slanted data.
Implicit bias research has further established that race disadvantages minority applicants within the walls of admissions offices. As a college admissions association addressed its members bluntly: “You’re [b]iased.”109 A study of medical school admissions officers demonstrated “significant levels of implicit white preference.”110 And though Harvard denied in federal court that its admissions officers were “uniquely” biased, the implication was that all people, and thus all admissions officers, are implicitly biased.111 Judge Burroughs agreed, charging that Harvard’s admissions program “would likely benefit from conducting implicit bias trainings for admissions officers.”112 In addition to discrimination outside the admissions office, implicit bias “provides an independent and compelling case for [affirmative] action” from within the admissions office itself.113
Whether researchers can determine how much racial implicit bias independently disadvantages minority applicants is another matter.114 If they can, universities will be able to narrowly tailor affirmative action programs to account for racial disadvantage within the admissions office, as well as the already-quantified racial disadvantage outside of it.
C. Discrimination Blocking Is Good Doctrine and Policy
1. Responding to Societal Change. — Courts have long encountered difficulties in crafting affirmative action doctrine that would respond to social change. In Grutter, for example, Justice O’Connor took stock of the social progress that affirmative action had encouraged and predicted that affirmative action programs would be needed for twenty-five more years — and only twenty-five more years.115 The twenty-five-year “self-destruct mechanism” garnered instant criticism as mechanical, arbitrary, and doctrinally incoherent.116 Discrimination blocking does not require, nor would it support, any such time limit. Flexibility is built into the model itself. As Professors Jerry Kang and Mahzarin Banaji have noted, scientific data provides the terminus for discrimination-blocking affir-mative action: “[R]ace- or gender-conscious [measures] will become presumptively unnecessary when the nation’s . . . bias against those social categories goes to zero . . . .”117 This makes intuitive sense. If social science were to indicate that race provides no independent disadvantage, there would be no discrimination to block.
But discrimination-blocking flexibility extends beyond a sunset timeline. Discrimination blocking allows universities to narrowly tailor affirmative action policies to any social change at any level of specificity. Perhaps an adjustment of testing methods removes race as an indepen-dent disadvantage in standardized tests, but a change in the teacher pool increases race as a disadvantage in high school grades. As long as the empirical evidence can demonstrate such outcomes, discrimination blocking allows universities to account for them. This flexibility increases the level of individualization with which universities may consider applicants, satisfying the Court’s most consistent and longstanding narrow tailoring command.118
2. Reducing Racial Resentment. — Discrimination blocking may increase the legal legitimacy of affirmative action for another reason. Because discrimination-blocking policies aim to accurately ascertain applicant potential, these policies generally do not override meritocratic criteria.119 And studies have shown that people are more likely to view affirmative action programs as fair when “merit criteria predominate in decision making.”120 Discrimination blocking cuts off the principal popular objection to affirmative action — that it circumvents merit121 — at the pass. The whole point of discrimination blocking is to accurately measure applicant merit.122 As a result, discrimination blocking may incur less racial resentment from dispreferred White applicants.123
3. Fitting Real-World Practice. — Discrimination blocking better fits the real-world practice of affirmative action. The Students for Fair Admissions litigation revealed that Harvard specifically trains admissions officers on how racial disadvantages impact minority applicants: “Admissions officers also were told that ‘[r]egardless of economic background, Black students’ experiences are impacted by racial bias, both explicit and implicit.’”124 Such trainings are not unique to Harvard; they “are commonly broached in admissions offices across the country.”125
It is true that legal doctrine need not — and often should not — model itself after real-world practice. But it is also true that legal legitimacy, to some extent at least, requires compliance.126 Admissions officers are trained to view minority applicants differently due to the racial disadvantage that minority applicants experience. Current doctrine turns a blind eye to this practice, allowing universities to justify race-conscious policies for the sake of diversity only. Surely, the universities do value diversity, but diversity is apparently not the only reason admissions officers consider applicant race. Recognizing discrimination blocking as a compelling interest would acknowledge an admissions reality that universities have been forced, and allowed, to obscure. Many scholars have argued that doctrinal honesty is a virtue in itself.127 In this regard, so is discrimination blocking.
4. Allowing for Candor. — A central problem with the diversity framework is that it requires universities to aim for a critical mass of minority students but also to obscure precisely what the critical-mass number is, lest they be accused of racial balancing.128 Conservative Justices have often highlighted this flaw. In Fisher II, for example, Justice Alito noted that “UT has claimed that its plan is needed to achieve a ‘critical mass’ of African-American and Hispanic students, but it has never explained what this term means.”129 Scholars, including liberals, have similarly lamented the lack of candor in affirmative action jurisprudence. Judge Calabresi, for example, acknowledged that diversity-based affirmative action “shad[es] honesty” rather than “facing the issues squarely.”130
Discrimination blocking avoids these problems. Discrimination-blocking universities may forthrightly admit their aim to reduce the racial disadvantage in admissions to zero, and they may clarify what this requires numerically.131 A doctrine that allows for such candor is good not only for honesty’s sake but also for making the narrow tailoring inquiry clear cut. It can be difficult to determine precisely how much preference is necessary to achieve the appropriate critical mass.132 Discrimination blocking allows universities to pinpoint their level of preference with numerical specificity, making narrow tailoring easy.
III. Defending Discrimination Blocking
Like other affirmative action justifications, discrimination blocking faces challenges. This final Part defends discrimination blocking against compelling interest, narrow tailoring, and policy objections in turn.
A. Compelling Interest Objections
1. The Lack-of-Discrimination Challenge. — Critics of discrimination blocking will point out that the Constitution prohibits only discrimination made “because of, not merely in spite of, its adverse effects upon an identifiable group.”133 Many of the above examples of racial disadvantage134 do not meet this standard and are better characterized as disparate impact, to which the Court has not extended Fourteenth Amendment protection.135 Discrimination blocking, critics argue, cannot be a compelling interest because there is no constitutionally recognized discrimination to block.
The challenge fails for a simple reason: compelling interests need not remedy constitutional violations. Reducing the appearance of corruption is a compelling interest,136 but the appearance of corruption is not a constitutional violation.137 Teaching students socially appropriate behavior is a compelling interest,138 but failing to teaching students socially appropriate behavior is not a constitutional violation. A school that decides not to restrict its students’ vulgarity would be well within constitutional bounds. In fact, schools are constitutionally prohibited from policing certain off-campus vulgarity.139
It thus matters little whether the racial disadvantage in university applications results from intentional discrimination or disparate impact. Accurately ascertaining an applicant’s abilities is a compelling interest, full stop. If race happens to be a factor that artificially depresses the scores, grades, and recommendations of minority students, universities have a compelling interest in correcting that bias.
2. The Elite School Challenge. — In Grutter, Justice Thomas argued that universities have no compelling interest in admissions standards that maintain academic selectivity.140 Indeed, Justice Thomas believed that states have no compelling interest in maintaining “elite” institutions at all.141 If universities want to maintain a diverse student body, Justice Thomas argued, they should adopt “different admissions methods, such as accepting all students who meet minimum qualifications.”142
Whatever force Justice Thomas’s elite-school critique has for the diversity interest, it has little for discrimination blocking. Even if universities adopted minimum qualification standards, they would still need to determine which applicants meet the minimum qualifications and which do not. Doing so requires an accurate measure of applicant ability. The elite-school critique would challenge discrimination blocking only if universities abandoned all admissions standards. And while some scholars have suggested universities should adopt a broadly inclusive lottery system, even these proposals — like Justice Thomas’s —would require applicants to satisfy some standard of academic capability.143 Wherever there are standards, determining which applicants meet those standards requires accounting for racial disadvantage.
B. Narrow Tailoring Objections
1. The Mechanical Quota Challenge. — Mechanical quotas have been constitutional nonstarters from the earliest affirmative action cases.144 In Bakke, the Court declared that universities may not reserve specific numbers of seats for certain racial groups.145 In Grutter, the Court extended this logic, precluding universities from insulating some applicants from competition with others.146 But discrimination-blocking policies do not seek to admit a fixed number of applicants. The same flexibility that allows discrimination-blocking policies to respond to social change allows these policies to fluctuate naturally with the quality and quantity of an applicant pool. Nor do discrimination-blocking policies foreclose “comparison with all other candidates”147 — quite the opposite. The whole purpose of discrimination blocking is to enable comparison between candidates on equal footing.148
2. The Quantification Challenge. — Critics of discrimination blocking may further argue that narrow tailoring requires universities to quantify precisely how much race disadvantages minority applicants. This Note provides two responses. First, this criticism may be unfair. Though dissenting Justices have long criticized universities for obfuscating the numerical meaning of “critical mass,”149 the Court has not required such specificity for other compelling interests. Preventing the appearance of corruption is a conceivably measurable compelling interest. The Court could require a state to demonstrate how much public perception of the judiciary would be improved by banning state judges from personally soliciting campaign funds.150 Public perception is undoubtedly measurable151 — much more easily measurable than the impact of race on college admissions. But the Court does not require the numerical specificity that critics of affirmative action seek.
Second, as noted above,152 researchers have begun to quantify how much153 race independently154 disadvantages applicants. Even if the Court holds discrimination blocking to a narrow tailoring standard that it does not require for other compelling interests, discrimination blocking satisfies that standard.
3. The Causation Fallacy. — Still, critics may point out that — even with data demonstrating numerically specific, race-independent disadvantage — discrimination blocking is a group-level solution imposed upon individuals. Not every member of a disadvantaged racial group incurs the same racial disadvantage. Because, the criticism goes, discrimination blocking allows group characteristics to affect the treatment of the individual, discrimination blocking fails the Court’s command to consider applicants as individuals.
The best response to this objection is to accept it. Defenders of discrimination blocking should accept that the best discrimination-blocking policy would account for racial disadvantage at the individual level. Unfortunately, that data does not yet exist. But the lack of individualized data about racial disadvantage should not preclude universities from accounting for known racial group disadvantage. The perfect need not be the enemy of the good.155 Even if only a proxy, group disadvantage is the best proxy to account for individual disadvantage. Universities should be allowed to account for racial disadvantage at whatever level of granularity empirical evidence can justify.
Even so, critics may note that McCleskey v. Kemp156 stands for the proposition that evidence of group-level disparate treatment cannot support claims of individual-level discrimination.157 In the realm of race, the criticism goes, the perfect is the enemy of the good; group-level evidence is not good enough.
But defenders of discrimination blocking need not dispute whether McCleskey was rightly decided158 or whether McCleskey does indeed prohibit the use of group-level disparate treatment in proving discrimination.159 Defenders of discrimination blocking may merely point out that the relevant question in McCleskey — whether statistics can prove constitutionally prohibited discrimination — is irrelevant when narrowly tailoring a policy that admittedly discriminates based on race.160 Discrimination-blocking proponents do not argue that the Constitution requires universities to account for race in admissions, lest universities unconstitutionally discriminate against minority applicants. Such an argument would certainly fail McCleskey. Discrimination-blocking proponents merely argue the constitution allows universities to utilize group-level statistics to narrowly tailor race-conscious policies to a compelling interest. And it bears repeating that the Court generally does not require any numerical specificity to satisfy the narrow tailoring inquiry,161 much less numerical specificity at the level of individuals.
C. Policy Objections: The Merit Question(s)
Questions of merit have long dogged scholars162 and admissions officers alike. Resolving various merit debates is not the aim of this Note, but it is necessary to respond to two merit-based challenges to discrimination blocking. Like the works of other scholars,163 this Note attaches no intrinsic value to “merit.” It takes “merit” merely to be an attribute that universities value as advancing their institutional missions.164 UCLA, for example, considers creativity and drive165 to be meritorious attributes that advance the university’s goal to provide “long-term societal benefits.”166
The first merit-based challenge argues that merit is measurable and that the metrics on which college admissions offices rely accurately measure it. Proponents of this challenge accept that race disadvantages minority applicants, but they maintain that this disadvantage results in a real difference of ability between the disadvantaged and advantaged. These proponents would argue that, even if race depressed Dr. King’s GRE score, the test nevertheless accurately measured Dr. King’s verbal ability at the time.
The problem with this challenge is that it views student ability as static. This runs contrary to the whole point of student learning: to learn, change, and grow.167 It runs contrary to neuroscientific research, which has found that higher education changes the brain.168 And it runs contrary to real-world outcomes, in many instances of which minority students — despite the many disadvantages before and during college — perform as well as White peers.169 Discrimination-blocking proponents need argue neither that student ability is wholly plastic (it surely is not), nor that race is the most important factor in determining applicant ability (it surely is not). Proponents must argue merely that race adds an important dimension to a university’s assessment of which applicants are best suited to accomplish the university’s mission.
The second merit-based challenge is the inverse of the first. It argues that merit is not measurable. Grounding affirmative action programs in the idea of accurate merit measurement only encourages the dangerous myth of merit. The response to this objection does not require taking a stance in the merit debate. It merely notes that, whether or not merit is measurable, universities — as well as most institutions — continue to consult metrics they believe speak to applicants’ abilities to advance their institutional missions. As long as they do, universities should be allowed to account for factors that slant these metrics, like racial disadvantage.
Conclusion
Thankfully for the nation, the Boston University admissions office looked beyond Dr. Martin Luther King Jr.’s subpar GRE scores. Thirteen years later, when he received an award for excellence in the education field, Dr. King highlighted education as “vital” to the fight for social equality.170 In the past five decades, affirmative action has contributed to a remarkable racial integration of higher education.171 But affirmative action has never been under more pressure. Discrimination blocking can relieve this pressure: it is compelling, it can be narrowly tailored, and it is good policy and doctrine. The Court has cited discrimination blocking as a worthy idea before.172 It is time to adopt it as a compelling interest.