Unmuting the Volume: Fisher, Affirmative Action Jurisprudence, and the Legacy of Racial Silence

As typified by its recent decisions in Fisher v. University of Texas at Austin and Shelby County v. Holder, the Supreme Court’s jurisprudence concerning race has long imposed strict judicial oversight over any use of race for the formulation of public policy. This top-down approach has invited various undesirable outcomes, the most pernicious of which are the endorsement of silence on the subject of race and the delegitimizing of most public deliberations about race by non-Court actors. Consequently, speech within universities and other learning environments regarding race has become a psychologically challenging risk for both students and faculty, who justifiably perceive themselves as lacking either the competence or the authorization to venture into the realm of race. At the same time, the Court has delegated to university administrators a role for race in admissions on the condition that they master locutions marking discourse about race as an expert argot. This Article proposes an alternative path in which control of race is wrested from the courts—and their appointed delegates in university administration—through the creation of small, experimental university communities. Such communities would select their own membership with a conscious concern for a healthy racial discourse in higher education. This shift in responsibility for racial discourse and community composition to a wider set of actors, including young adults who are inclined toward openness to diversity, will transform the discussion over race from one requiring the sanction of judges and administrators to one that is genuinely frank and open