An Evidentiary Framework for Diversity as a Compelling Interest in Higher Education
Affirmative action is on trial in America. Across the nation, private citizens and government bodies are debating its effectiveness, benefits, and fairness, especially in the context of higher education. Many colleges and universities have implemented affirmative action policies not only to remedy past discrimination, but also to achieve a racially and ethnically diverse student body. The pursuit of diversity in higher education has engendered considerable controversy.
This Note argues that if courts choose to reexamine evidence on the value of diversity in higher education, they should not apply the evidentiary requirements that the Supreme Court has applied to cases involving questions of past discrimination. Rather, courts should consider the unique nature of diversity in higher education and the protection afforded the academic context in which the evidence is considered and modify their review of the evidence presented accordingly. Furthermore, this Note argues that the interest of an institution of higher education in diversity is "compelling" in light of the evidence that a racially diverse student body furthers learning. Courts should therefore continue to treat diversity as compelling as a matter of law.