Race, Affirmative Action, and the Law

by Randall Kennedy

  Having savaged one another in Grutter, the judges of the Sixth Circuit were preparing to do battle over Gratz (remember that it had only received consideration by a trial judge) when the Supreme Court short-circuited the usual process by deciding to review both cases together without further intermediate appellate adjudication.e

  With the precedential authority of Bakke in question, with judicial tempers flaring, and with all of higher education awaiting nervously, the Supreme Court heard arguments on April 1, 2003, and issued decisions on June 23, 2003. The result mimicked Bakke. A majority of the justices for the first time expressly embraced the proposition that “diversity” is a compelling justification for racial selectivity in admissions to higher education. The Court also affirmed Powell’s strictures regarding narrow tailoring. That led to victory for the law school in the Grutter litigation, and to defeat for the LSA in the Gratz litigation.

  Let’s take a closer look at these cases.

  Justice Sandra Day O’Connor wrote the Court’s opinion in Grutter. One might well have expected her to condemn the law school’s diversity program. She had denounced governmental racial selectivity in aid of racial minorities in previous cases.f In 1990, in Metro Broadcasting v. FCC, the United States had defended a racially selective program that aimed to assist racial-minority broadcasters (or prospective broadcasters) for the purpose of enhancing broadcast diversity. The Court upheld the program, relying substantially on Justice Powell’s opinion in Bakke. Speaking for the Court, Justice William J. Brennan wrote that “just as a ‘diverse student body’ contributing to a ‘robust exchange of ideas’ is a ‘constitutionally permissible goal’ on which a race-conscious university admissions program may be predicated, so too is it constitutionally permissible to use tailored racial selectivity to facilitate diversity among broadcast licensees since doing so would enhance the diversity of views and information on the airwaves which also serve important First Amendment values.”66 Justice O’Connor disagreed. Explicitly addressing the diversity rationale, she wrote that “the interest in increasing the diversity of broadcast viewpoints is clearly not a compelling interest. It is simply too amorphous, too insubstantial, too unrelated to any legitimate basis for employing racial classifications.”67

  In Grutter, however, O’Connor flipped, replacing Powell as the indispensible conservative champion of “diversity.” Writing on behalf of the slimmest of majorities, she articulated two main propositions. First, she quieted (at least temporarily) debate over the status of Powell’s Bakke opinion, declaring, “We endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.”68 The educational benefits of diversity, O’Connor maintained, are “substantial” and “laudable.” In her view, diversity promotes cross-racial understanding, helps break down racial stereotypes, and enables students to better understand persons of different races. She accepted the claim, posited by the university, that “classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds.”69

  In deferring to the judgment of educators that “diversity” is essential to optimal learning on their campuses, O’Connor was staying within the parameters established by Powell. But O’Connor then innovated, stating that diversity was valuable not only to on-campus learning, and thus not only to schools but to post-university settings. Numerous studies show, she related, that student body diversity “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.”70 These benefits, she insisted, “are not theoretical but real, as major businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints.”71 Furthermore, O’Connor averred, “high-ranking retired officers and civilian leaders of the United States military assert that, based on their decades of experience, a highly qualified racially diverse officer corps … is essential to the military’s ability to fulfill its principal mission to provide national security.” At present, though, “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC use limited race-conscious recruiting and admissions policies.”72 To fulfill its mission, the military amici argued, “the military must be selective in admissions … and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse educational setting.”73 “We agree,” O’Connor declared on behalf of the Court, that “it requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.”74

  Having advanced the virtues of diversity in universities, in business enterprise, and in the military, O’Connor went further. She championed the value of diversity for a robust, unified, legitimate polity. According to the justice, “to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”75

  Second, O’Connor announced the Court’s approval of the manner in which the law school had sought to attain diversity. She portrayed a process that was a rigorous sifter, receiving around 3,500 applicants for a class of around 350. Describing its aspirations, the law school said that it sought to admit candidates with “substantial promise for success in law school” and “a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others.” The school also said that it sought “a mix of students with varying backgrounds and experiences who will respect and learn from each other.”76 In deciding whom to invite into its ranks, admissions officials at the law school considered applicants’ undergraduate grade point averages, Law School Admission Test (LSAT) scores, and other indicia of accomplishment and promise, including recommendations and the applicants’ personal admissions essays.

  According to the law school, “diversity” was an important consideration in assessing each and all of the applicants. It aimed to “achieve that diversity which has the potential to enrich everyone’s education and thus make [the] class stronger than the sum of its parts.”77 The school did not limit the types of diversity that might receive “substantial weight” in the process of evaluation. It expressly recognized “many possible bases for diversity admissions.” The school did reaffirm, however, a commitment to “one particular type of diversity,” namely “racial and ethnic diversity with special preference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.” To bring about the diversity envisioned, the school tried to enroll a “critical mass” of racial-minority students to “ensure their ability to make unique contributions to the character of the law school.”78

  The Court found, in Justice O’Connor’s words, that the law school’s admissions program bore “the hallmark of a narrowly tailored plan.”79 It provided “truly individualized consideration” in which race was used in a “flexible, non-mechanical way.” All applicants, O’Connor noted, had “the opportunity to highlight their own potential diversity contributions,” and the law school showed that it actually gave substantial weight to diversity factors besides race, accepting nonminority applicants with grades and test scores lower than those of some underrepresented minority applicants who were rejected. All candidates competed against one another for all of the available seats in the class, and no fixed number or proportion of places was reserved exclusively for any particular minority group. Responding to objections to the law school’s aim of enrolling a “critical mass” of minority students, O’Connor assured her audience that the school’s goal did not transform its program into a quota. A “quota,” she wrote, “is a pro
gram in which a certain fixed number or proportion of opportunities are reserved exclusively for certain minority groups.” By contrast, “a permissible goal … require[s] only a good-faith effort … to come within a range demarcated by the goal itself … and permits consideration of race as a ‘plus’ factor in any given case while ensuring that each candidate ‘compete[s] with all other qualified applicants.’ ”80 The law school’s program sought a permissible goal, O’Connor concluded, noting that between 1993 and 1998, the number of racial minorities in each entering class varied from 13.5 to 20.1, a range she deemed “inconsistent with a quota.”81

  Chief Justice Rehnquist wrote for the Court in Gratz, which posed similar issues as Grutter but against the backdrop of a different selection scheme. As with the law school, the college declared that it sought “diversity” broadly conceived and in accordance with the guidelines set forth in Justice Powell’s Bakke opinion. Unlike the law school, however, which purportedly subjected all students to the same holistic, individualized assessment, the college accorded underrepresented racial-minority applicants special treatment in a vivid way: it automatically bestowed upon any minority applicant twenty points in the selection competition, a number, Rehnquist noted, that amounted to one-fifth of the points needed to virtually guarantee admission. The effect, Rehnquist observed, was to make the factor of race decisive for almost every minimally qualified minority applicant.

  The Court majority—which included Justices O’Connor and Breyer—gagged on the twenty points. Rehnquist complained that the automatic, class-wide benefit for all underrepresented racial-minority applicants was in conflict with Justice Powell’s requirement of flexible, individualized assessment. He complained, too, of the uniform and, in his view, excessively large scope of the minority “plus.” Under the college’s admissions protocol, even a student with “extraordinary artistic talent” would receive, at most, five points as a bonus. Yet every underrepresented minority applicant received twenty bonus points simply on account of his or her racial status. The Court saw these features of the college’s admissions process as flaws indicating the absence of the narrow tailoring needed to pass strict scrutiny. The Court therefore reversed the district court that had decided in favor of the college.

  In sum, in Gratz and Grutter, the Court ratified Justice Powell’s Bakke opinion. It held that race could serve as a “plus” for purposes of diversity but that any process using race would have to be narrowly tailored. The Court found that the University of Michigan Law School admissions program met its requirement but that the college program did not. The Court’s disposition of Gratz and Grutter provoked internal criticism. In Gratz, Justices Souter and Ginsburg dissented from the Court’s invalidation of the college admissions process. In Grutter, Justices Rehnquist, Scalia, Thomas, and Kennedy dissented from the Court’s validation of the law school’s admissions process.

  Among this welter of critiques, three are particularly noteworthy. The first is that the Court has made a mess of “strict scrutiny.” The purpose of strict scrutiny is to arm the judiciary with a mechanism with which to smoke out illicit purposes. It prompts judges to take special steps to make sure that the governmental action in question is actually being taken for the reasons officially expressed, to make sure that that reason is compelling, and to make sure that the action is no broader than necessary to accomplish its ends. The animating sentiment behind the strict-scrutiny doctrine is distrust. After all, strict scrutiny is invoked when the government does something—e.g., draws a race line—that prompts judicial anxiety, upending the presumption of legitimacy normally enjoyed by the government.

  Both wings of the Court dissented, for different reasons, from the majority’s handling of strict scrutiny as applied to affirmative action. Justice Ginsburg restated her opposition to applying “strict scrutiny” to all official race-dependent decision making—Jim Crow laws and affirmative action alike. “Once again,” Ginsburg objected, the Court “maintains that the same standard of review controls judicial inspection of all official racial classifications.”82 In her view, “government decisionmakers may properly distinguish between policies of exclusion and inclusion.”83

  O’Connor responded by saying that, contrary to what was once thought, strict scrutiny does not represent a death sentence for governmental racial distinctions. It is not fatal, in fact, but only a signal that the Court wishes to investigate all racial distinctions seriously. If, upon investigation, the government can show the benignity and necessity of the challenged policy, then fine, it survives. If the government fails to make that showing, the policy is rightly invalidated. This does not mean that in the Court’s view all racial distinctions are equivalently bad, only that all are toxic and should, at the outset, be examined searchingly.

  A difficulty with the O’Connor brand of moderated strict scrutiny is that it flies in the face of a widespread inclination to associate strict scrutiny with governmental action that warrants not merely skepticism but hostility. Given what “strict scrutiny” connotes for many jurists, its invocation generates a heavy pull of presumptive illegitimacy that is exceedingly difficult to dissipate. True, O’Connor and the Court ostensibly subjected the Michigan Law School’s affirmative action plan to the rigors of strict scrutiny and concluded that it passed this exacting test. But careful observers have expressed doubts about the Court’s grading. They charge that in Grutter, O’Connor went easy on the law school’s affirmative action plan and in so doing eroded the strict-scrutiny firewall.g If she and her colleagues, though purporting to apply strict scrutiny, were this willing to defer to educational authorities, one can only imagine with alarm the deference they would be willing to show to military or police officials desiring to investigate or detain individuals on a racial basis à la Korematsu.

  There is considerable force, then, to the complaint that, in Grutter, O’Connor’s strict scrutiny is a troublingly diluted strict scrutiny. Echoing Powell’s Bakke opinion, she expressly accords deference to university officials based on their presumed expertise as educators. Instead of rigorously cross-examining the law school administration, O’Connor’s Court accepted its claims at face value. But O’Connor’s deference does not stop with the law school authorities; it extends as well to amici and scholarship supportive of those authorities.

  In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.…These benefits are not theoretical but real.84

  Perhaps what the experts claim is accurate. O’Connor’s opinion, however, displays virtually no engagement with the substance of that claim. The justice positively cites studies that purportedly “show that student body diversity promotes learning outcomes” without showing any awareness that at least some of these studies have been sharply challenged. She refers neither to critiques nor to studies that reach different conclusions. Ostensibly engaged in strict scrutiny, O’Connor validates a wide range of scholarship—some of it academic, some of it advocacy-inspired—with no hint of critical skepticism, no impulse to test propositions, no apparent realism about the politics of knowledge.85

  A second critique of the Court’s opinion in Grutter has to do with bad faith: detractors charge that proponents of affirmative action are so committed to it that they brook no impediments, not even the law, or commitments to roles as officials, scholars, or judges. They charge that the Court facilitates this heedlessness. This allegation is a central feature of Chief Justice Rehnquist’s dissent in Grutter. Openly labeling the defendant as deceptive and the Court as gullible, Rehnquist complains that “the ostensibly flexible nature of the Law School’s admissions program that the Court finds appealing, appears to be, in practice, a carefully managed program designed to ensure proportionate representation of applicants from selected minority groups.”86 Justice Kennedy is similarly damning, asserting that the law
school’s argument in favor of admitting a “critical mass” of minority students is nothing more than “a delusion used by the Law School to mask its attempt to … achieve numerical goals undistinguishable from quotas.”87

  Allegations of disingenuousness, or, indeed, outright deceptiveness, have long shadowed the affirmative action debate. A criticism of Powell’s opinion in Bakke is that it rewarded obfuscation over forthrightness. A criticism of academic culture on many campuses is that it stifles robust debate regarding affirmative action, preferring instead rote acquiescence. A criticism of many defenders of affirmative action is that they dishonestly rally behind the banner of “diversity,” though what truly animates them are other goals, such as reparations or integration.88 Not only do opponents of affirmative action bemoan this evasiveness; some proponents do as well, even as they recognize that practicalities—e.g., receiving approval from courts—often prompt supporters to articulate justifications other than those they really most favor.h Hence, Justice Ginsburg voices a preference for “fully disclosed” affirmative action programs, as opposed to pretextual ones that proceed by dint of “winks, nods, and disguises.”89

  A third notable line of attack against the Gratz/Grutter validation of Powellian affirmative action issued from Justice Clarence Thomas. In addition to mounting his color-blindness critique, Thomas attacked the University of Michigan affirmative action programs for what he saw as their distracting and hollow elitism.i His thinking on this subject reflects a long-standing divide within black America—a conflict whose most outstanding protagonists were Booker T. Washington and W. E. B. DuBois. Washington was rewarded handsomely by powerful white conservatives who appreciated his willingness to forswear demanding civil and political rights that whites were loath to recognize.j Likewise, Thomas was handsomely rewarded for repudiating affirmative action and other polices resisted by today’s conservatives.