Vinay Harpalani * | Vol. 22 | Online | Citation: Vinay Harpalani, Race-Conscious Admissions, Diversity, and Academic Freedom, 20 U. Pa. J. Const. L. Online (2019).

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This Essay examines the First Amendment component to race-conscious admissions policies. It argues that these policies reflect a core First Amendment value: academic freedom. It illustrates that race-conscious admissions policies promote academic freedom in two ways. One aspect of a university’s academic freedom is the selection of its own student body. Justice Felix Frankfurter stated this explicitly in his concurrence in Sweezy v. New Hampshire (1957), which was later cited in Justice Lewis Powell's influential concurrence in Regents of the University of California v. Bakke (1978). Additionally, the compelling interest in diversity has roots in the First Amendment. By facilitating the admission of a more diverse student body, race-conscious admissions policies contribute to the “marketplace of ideas” on campus - thus embodying the values inhering from freedom of speech. The Essay also examines how the marketplace rationale is more availing in the context of student diversity than it is in the production of scholarship.

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*Associate Professor, University of New Mexico School of Law. I am grateful to Destinee Andrews and Tianna Bias for their valuable research assistance. Additionally, Sarah Zeigler, former Access Services Librarian at Savannah Law School, and Heather Campbell, Public Services Associate at the Drake University Law Library, helped to track down various sources for me. Also, I thank Owen Alderson and the staff of the University of Pennsylvania Journal of Constitutional Law for their helpful edits and suggestions. This Essay derives from scholarly work I did at three different law schools: Savannah Law School, Drake University School of Law, and the University of New Mexico School of Law. I am appreciative that all three schools provided a supportive atmosphere for my scholarship.