William & Mary Bill of Rights Journal


Gabriel J. Chin


In the years since the United States Supreme Court's affirmative action holding in Board of Regents v. Bakke, many educational institutions have struggled to apply Bakke's doctrine to their admissions policymaking. Professor Chin asserts that Bakke is incoherent because it does not explain whether the diversity it tries to foster is cultural or racial. Furthermore, he argues that neither a racial nor a cultural basis works under the Bakke scheme, leading to the difficulties schools confront in framing an affirmative action program.

Focusing on law school admissions policies, Professor Chin argues that because of Bakke's weakness as law, it is largely ignored. He shows that many law schools explicitly base their affirmative action programs on non-diversity grounds, such as remedying societal discrimination or increasing the numbers of minority professionals, despite Bakke and subsequent Supreme Court cases that find such grounds illegal. In addition, many law schools that purport to have diversity programs instead have racially selective programs, perhaps suggesting that some nonwhite races add to the quality of their academic programs while others do not.

Professor Chin concludes that schools' refusal to follow Bakke ultimately may lead the Supreme Court to implement a strict colorblind rule. He proposes that schools follow Bakke because its holding is better than the alternative-the removal of affirmative action considerations from the admissions process. A Postscript to this Article discusses the recent Fifth Circuit decision in Hopwood v. Texas, a case in which the Circuit found the University of Texas Law School's admissions policy to be unconstitutional