On Affirmative Action and "Truly Individualized Consideration"

By Andrew Koppelman & Donald Rebstock

Abstract:

In its most recent affirmative action decisions, the Supreme Court has declared that, in order for an admissions program to permissibly take race into account, it must give each applicant "truly individualized consideration."  Each applicant, it has said, must be "evaluated as an individual."  The rhetorical power of the opinion rests on the contrast between crude, mechanical sorting and an admissions process in which applicants are treated as the unique people they are, and in which each of them gets precisely the result that he deserves.

This rhetorical move is a cheat.  Nobody ever gets exactly what he deserves.  In any case, giving people what they deserve is not the business of an admissions office.  The Michigan Law School process that the Court approved flunks this standard.  So does Northwestern's, which is even more individualized.  So does any other possible admissions program.  Truly individualized consideration is impossible.  The Supreme Court has tried to make a vain dream into a constitutional requirement.

This essay has four parts.  Part I reviews the "individualized consideration" requirement laid down in Gratz and Grutter.  Part II describes what an actual law school admissions process is, at an unusually prosperous, small, and selective law school.  This process has many virtues, but it would be an exaggeration to say that it achieves truly individualized consideration.  Part III contrasts admissions decisions with the one other area in which the Court has demanded individualized decisions:  the administration of the death penalty.  The admissions process is far cruder than anything the Court would accept in the death penalty context.  Part IV argues that when the actual goals and methods of the admissions process are understood, it becomes clear that racial diversity is continuous with, rather than in violation of, those goals and methods.

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Copyright 2006 Northwestern University

Cite As: 101 Nw. U. L. Rev. (forthcoming 2007), 101 Nw. U. L. Rev. Colloquy 49 (2006), http://www.law.northwestern.edu/lawreview/Colloquy/2006/6/.

Persistent URL: http://www.law.northwestern.edu/lawreview/colloquy/2006/6/

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