Kenneth L. Marcus[*]
The most important, elusive, and misunderstood aspect of federal affirmative action jurisprudence is the requirement of “serious consideration.” Before commencing or continuing race-conscious, nonremedial affirmative action plans, public institutions, including colleges and universities, must apply “serious, good faith consideration” to workable race-neutral alternatives (RNAs). This requires not only that less racially intrusive alternatives be unavailable, but also that institutions establish this unavailability through a largely undefined process of “serious consideration.” The measure one should use to establish this (un)availability remains unknown. In higher education, since RNAs typically tout diversity, it is easy to assume that they should be measured against their ability to increase the representation of previously underrepresented student racial and ethnic groups. In fact, such measures raise serious constitutional problems to the extent that they indicate that the actual goal of the RNA’s is racial balancing. This Essay argues that because the only legally viable purpose for nonremedial race-conscious admissions practices are “the educational benefits that flow from a diverse student body,” only direct measures of those educational benefits are proper for “serious consideration.” In other words, RNAs must be evaluated against their ability to raise actual educational achievement.