The corrupting influence of the Supreme Court's favorite doctrine.
Jul 7, 2003, Vol. 8, No. 42 • By PETER BERKOWITZ
BACK IN THE LATE 1980S, several of my Yale Law School classmates and I launched into yet another earnest and well-meaning discussion about racial diversity. On that particular evening we turned to the faculty and proceeded empirically.
As we counted the individuals of minority race, I casually added to the list the name of Stephen Carter, soon to be well known to the general public as the author of "Reflections of an Affirmative Action Baby," and already known at Yale as a serious scholar and no-nonsense teacher who tended to avoid public involvement in Yale's persistent internal battles about law school diversity. Immediately, a classmate--bright, progressive, and now well into a successful law career--blurted out indignantly, "No! Carter doesn't count as a . . . "
My classmate caught himself, blushed, and let his incomplete utterance hang in the air. We felt his embarrassment. Even among friends he had the good sense to be flustered at having nearly put into words the widely held opinion at Yale Law School that to be counted as an African American you had to meet at least two criteria: Your skin had to be black, and your opinions had to be left-liberal.
For those concerned about the deceptions upon which the diversity rationale depends, the Supreme Court's 5-4 decision in Grutter v. Bollinger will provide little comfort. Justice Sandra Day O'Connor wrote for the majority, and she was joined by Justices Stevens, Souter, Breyer, and Ginsburg. She held that "educational benefits that flow from a diverse student body" are a "compelling state interest"--a good, that is, of overriding importance--which permits public universities, despite the Fourteenth Amendment's core purpose "to do away with all governmentally imposed discrimination based on race," to count race as one factor among many in university admissions decisions.
But can the quest for racial diversity avoid stereotyping? Are the official means and ends of the diversity rationale in harmony and consistent with actual practice? What kinds of intellectual habits does the diversity rationale cultivate? To these questions, the majority gives answers that range from the highly unsatisfying to the deeply disturbing.
Both sides agreed, as Justice O'Connor notes, on the huge impact of racial preferences on the admissions process at the University of Michigan Law School. Barbara Grutter's experts testified that race "is an extremely strong factor in the decision for acceptance" (disclosure: Grutter's lawyers serve as co-counsel in a lawsuit to which I am a party). The Law School's experts concurred: "a race blind admissions system would have a 'very dramatic,' negative effect on underrepresented minority admissions." Justice O'Connor embraced the Law School's contention that if it did not grant racial preferences to underrepresented minorities--African Americans, Hispanics, and Native Americans--it would not achieve a "critical mass," which means "numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race." And she accepted the Law School's conclusion that without a critical mass, it could neither reap diversity's benefits nor play its important role in training minorities for positions of civic and commercial leadership.
Effectively establishing as the law of the land Justice Powell's strictures in the landmark 1978 Bakke decision that public universities may use race only as a "'plus' factor" while ensuring that "each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application," Justice O'Connor purported to subject the Law School's policy to the strictest scrutiny and found it constitutional.
In fact, Justice O'Connor's scrutiny is lax and her reasoning is weak. First, the idea of a "critical mass" is a sham. As Justice Rehnquist argued in his dissent, joined by Justices Scalia, Kennedy, and Thomas, in practice the goal of a "critical mass" in Law School admissions functions as a quota whose purpose is to achieve racial balancing, which Justice O'Connor's majority opinion recognizes as "patently unconstitutional."
In a typical year, the Law School will admit a class of between 1,130 and 1,310 students; the class will contain between 91 and 108 African Americans, between 47 and 56 Hispanics, and between 13 and 19 Native Americans. The Law School, however, does not explain why critical mass varies so dramatically among underrepresented minorities. The data, though, are telling. Year after year, the Law School admits African Americans, Hispanics, and Native Americans in approximately the same proportions in which they apply.