Retargeting Affirmative Action: A Program to Serve Those Most Harmed by Past Racism and Avoid Intractable Problems Triggered by Per Se Racial Preferences

Affirmative action programs at elite schools have long neglected those suffering most from the effects of racism. After concluding that inferior K-12 preparation has left such students too far behind to handle their rigorous academic programs, elite schools have focused their programs on better prepared middle and upper-class minority applicants. Although the resulting diversity is a positive, this Article contends that affirmative action programs need to be retargeted to directly aid the most disadvantaged minority students. It offers a three-part program. In the first, and most significant element, schools would designate a substantial number of places in each class for the most qualified students who both demonstrated their qualifications to mentor and tutor those students during their K-12 years and made a binding commitment to do so. The article also discusses three intractable questions triggered by per se racial preferences and, in its second and third parts, proposes a racially conscious, but race-neutral alternative for avoiding the problems they raise and a few other shortcomings of per se preferences. The approach is particularly relevant in the current environment, where Grutter v. Bollinger could soon be reinterpreted, if not effectively reversed, by the current, more conservative Supreme Court