Serious Consideration of Race-Neutral Alternatives in Higher Education

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Noue G. La & Kenneth L. Marcus, "Serious Consideration" of Race-Neutral Alternatives in Higher Education, 57 Cath. U. L. Rev. 991 (2008). Available at: https://scholarship.law.edu/lawreview/vol57/iss4/3

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Abstract

What does it mean for a university to "seriously consider" race-neutral alternatives? Does it require, for instance, on-the-record review,documentation of underlying facts, or demonstration of an empirical basis for a decision? Justice Sandra Day O'Connor's affirmative action jurisprudence requires post-secondary institutions to address these questions, yet does little to answer them. By requiring universities to conduct "serious, good-faith consideration of workable race-neutral altematives before engaging in nonremedial race-conscious activities-but without specifying the requisite nature and scope of this "consideration"-Justice O'Connor has left many institutions to wonder what is needed to satisfy the Court.