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 education16 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.
Part II reviews the Supreme Court's constitutional framework for analyzing affirmative action programs. Part III argues that the evidentiary requirements the Court has developed in determining whether an entity has presented sufficient evidence of past discrimination to warrant a race-conscious remedy should not be applied to universities that adopt affirmative action to achieve diversity. Part IV examines the influence of race on experience and discusses some of the recent evidence of the benefits of diversity in higher education.
Note, An Evidentiary Framework for Diversity as a Compelling Interest in Higher Education, 109 Harv. L. Rev. 1357 (1996)