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68 U. Colo. L. Rev. 1165 (1997)
Why Universities are Morally Obligated to Strive for Diversity: Restoring the Remedial Rationale for Affirmative Action

handle is hein.journals/ucollr68 and id is 1187 raw text is: WHY UNIVERSITIES ARE MORALLY
OBLIGATED TO STRIVE FOR DIVERSITY:
RESTORING THE REMEDIAL RATIONALE
FOR AFFIRMATIVE ACTION
RICHARD DELGADO*
Professor Michael Olivas provides an impressive road map for
making our way amid existing case law and testing studies to
preserve diversity admissions in higher education.' I do not know
of a better such treatment. Unfortunately, two of his pre-
mises-the imperative of distributive justice2 and the continued
vitality of Regents of the University of California v. Bakke3-are
under attack right now. Our society is not in a redistributive
mood these days,4 while Bakke stands in danger of continued
erosion, of outright defiance by lower courts, and of possible
eventual reversal by the Supreme Court itself.5
With those realities in mind, I would like to propose a
complementary approach for diversity's defenders to pursue while
the kind of present- and future-oriented reconstruction that
Michael outlines proceeds. We can and should do the things he
suggests: strengthen our admissions criteria, make them more
defensible, put more effort into the admissions process itself, and
* Jean Lindsley Professor of Law, University of Colorado. J.D., University of
California-Berkeley (Boalt Hall) 1974.
1. See Michael Olivas, Constitutional Criteria The Social Science and Common
Law of Admissions Decisions in Higher Education, 68 U. COLO. L. REV. 1065 (1997).
2. See Olivas, supra note 1, at 1068 (New evidence on what constitutes 'success'
in graduate or professional schools... [has] made it necessary to review and refine
admissions practices and criteria so that they have.., heightened sensitivity to the
increasingly heterogenous student body ... ).
3. 438 U.S. 265 (1978). See Olivas, supra note 1, at 1066 (Bakke remains the
law of the land.).
4. See, e.g., JEAN STEFANCIC & RICHARD DELGADO, No MERCY: How
CONSERVATIVE THINK TANKS AND FOUNDATIONS CHANGED AMERICA'S SOCIAL AGENDA
(1996) (detailing efforts to roll back social programs like affirmative action,
immigration, bilingual education, and welfare).
5. See id. at ch. 4; see also Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied,
116 U.S. 2581 (1996) (striking down race-conscious admissions program at
University of Texas and implying that 18-year-old Supreme Court precedent is no
longer valid).

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