FORUM

The Supreme Court’s long-awaited decisions in the Gratz and Grutter cases concerning the University of Michigan’s affirmative action programs were greeted with deep sighs of relief by the numerous advocates of (euphemisms aside) ethno-racial preferences. Their relief at having dodged a judicial bullet is perfectly understandable. The Court’s decision, however, should not give them too much comfort, for it will convince no one who is not already a true believer in preferences.

Let me count the reasons why. The majority’s application of strict scrutiny amounts to a dilution of that indispensable standard. It relies on an unexamined, shallow conception of diversity and of what is required to produce its benefits. In the name of that diversity, it relies on the very stereotypes it opposes, stereotypes that it ironically believes preferences will discredit and dispel. Its constitutional test compels a conclusion that is precisely the opposite of the one it reaches. It hopes that preferences will be temporary, yet its own logic would perpetuate them. In another of the case’s striking ironies, the decision will promote uniformity, not diversity, in the design of future affirmative action programs. Finally, its decision, far from bringing closure to the bitter, three-decade debate over preferences, will in fact inflame and enlarge it.

In what follows, I critique the Grutter majority’s reasoning in upholding the preferences’ constitutionality. I believe that there is a stronger argument for their constitutionality, at least as applied to preferences for blacks. This argument is based on statutory preferences for blacks that were enacted by the same Reconstruction congress that adopted the Fourteenth Amendment. The Grutter majority does not even mention this argument, perhaps because Michigan’s plan favors Native-Americans and Hispanics, not just blacks. In any event, my view is that the moral and policy objections to preferences are more compelling than the constitutional ones. Although I do not pursue these moral and policy objections here, I analyze them in detail in my just-published book, Diversity in America (Harvard/Belknap, 2003).

Strict Scrutiny

Strict scrutiny is supposed to be, well, strict. Its raison d’etre is to be rigorous, skeptical, and demanding enough to challenge the government’s premises, flush out its true motives, and ensure a very tight congruence of evidence, legal categories, and policy justifications. Strict scrutiny is employed, of course, when there are especially good reasons to think that, as with racial classifications, the government may be playing with fire around highly combustible materials.

Many academic advocates of preferences, of course, argue that the strict scrutiny standard formulated by the Court in Croson and Adarand (per Justice O’Connor, no less) was too strict, even Procrustean, and that a “benign” preference adopted by self-abnegating majorities should be judged less rigorously. Whatever the merits of this argument – note that in fact no majority has, or is likely to, adopt preferences, so its benignity is decidedly in the eye of the beholder – the Grutter majority does not accept it. Nor does it even come close to applying the traditional standard. There may well be a middle ground of strictness, but the majority does not occupy it. Grutter’s remarkable latitudinarianism, as we shall see, pervades every aspect of its analysis. As the Chief Justice correctly notes, the majority’s review of Michigan’s preference system is “perfunctory” and “unprecedented in its deference.” It remains a mystery why universities sponsoring preferences are more entitled to such deference than, say, the private employers or municipal procurement agencies whose plans have been struck down in the past under strict scrutiny. In adopting and structuring such plans, universities, no less than employers and agencies, respond to a variety of political, ideological, competitive, social, legal, and institutional pressures. They all presumably act in good faith, whatever that may mean in this context. But the sponsors’ good faith, of course, is supposed to be irrelevant under any form of strict scrutiny.

Justice O’Connor’s strict scrutiny has all the strictness of an indulgent mother who gives her affable son the keys to the family car without questioning him about his drinking. When the father warns that the youth has gotten drunk before and harmed some bystanders, she replies, “Oh, he’s a good boy, and anyway he says he’s only going to the library.” In this spirit, O’Connor accepts the Michigan law school’s assurances that she needn’t worry, while shrugging off the hard questions posed by the dissenters – a kind of good-natured “Oh, don’t mind dad; he’s just being crabby” response.

Which are those hard questions finessed by the majority? One is about the nature of educational diversity and how the law school’s preferences relate to diversity value. A second is how educational diversity relates to both the “critical mass” idea on which the school’s theory pivots and the ethno-racial stereotypes that it claims to abhor. A third is about the majority’s test for distinguishing between valid and invalid preferences, and about how well Michigan’s program fares under that test. A fourth is about race-neutral alternatives. A fifth is about the future of preferences and of the politics surrounding them. I discuss each of these in turn.

Diversity

The Grutter majority famously ratifies Justice Powell’s embrace in Bakke of student diversity as a compelling state interest sufficient to justify university admissions preferences – even as it ignores the conditions, including rigorous individualized appraisal of an applicant’s actual diversity-value, that Powell insisted were necessary to validate them. What the majority does not do is to provide a coherent account of diversity that goes beyond generalities and platitudes, or to explain why the Constitution allows the law school to define diversity in purely and narrowly ethno-racial terms, disfavoring minorities other than the three favored ones (blacks, Native Americans, and the Spanish-surnamed) and treating other kinds of diversity either as much less weighty or irrelevant. Indeed, as Justice Thomas points out in a dissenting footnote, the school seems not to value the additional diversity that black men, who are greatly under-represented relative to black women, would provide. (He might have added that the world views of these two groups, according to Harvard sociologist Orlando Patterson, are strikingly different). The majority, I strongly suspect, takes the diversity rationale more seriously than the law school does. The dissenters also take it seriously but only out of formal necessity, because the majority does.

The only convincing explanation for the school’s program has little to do with the goal of educational diversity and everything to do with a goal the Court has insisted is constitutionally insufficient to justify preferences: the laudable wish to remedy the historic injustices suffered in America by (at least two of) those groups. Every sophisticated observer who can see through the rhetorical fog thrown up by the now-obligatory diversity-talk (including all members of the Court, one supposes) understands that this remedy, not diversity, is the law school’s true motive. (Indeed, in a forthcoming article that discusses Grutter, Tobias and Robert Paul Wolff praise the opinion's interventionist approach to the social inequalities that they believe justify preferences. The fact that O'Connor departs radically from her earlier approach in Croson and Adarand, they think, is a cause for celebration, not censure).

If the law school’s program were really about educational diversity rather than about remedying past injustices, why would its preferences extend only to a demographic characteristic (one of a few favored races or ethnicities) that has the effect of confirming the very stereotypes that the program is supposed to break down, while ignoring those other demographic factors (religion or partisanship, say) that directly represent the different world views with which educational diversity is supposedly concerned? Would a fundamentalist Christian or a conservative Republican or an anarchist, for that matter, create less diversity-value for Michigan’s students than an applicant whose only special claim to diversity value is his surname or the color of his skin? The answer, obviously, is no – and it is no whether one defines diversity-value in terms of disparate world views, interacting with people of unfamiliar backgrounds, encouraging dorm room chit-chat, or even breaking down traditional stereotypes.

Stereotypes and "Critical Mass"

The majority insists that the breaking down of ethno-racial stereotypes is crucial to the constitutionally-legitimated goal of educational diversity and that the “critical mass” of favored minorities intentionally produced by the school’s preferences will also help achieve this goal. The connection between critical mass and stereotype destruction , in this view, is a close one: “when a critical mass of underrepresented minority students is present,” the majority (citing Dean Syverud’s testimony) states, “racial stereotypes lose their force because non-minority students learn that there is no ‘minority viewpoint’ but rather a variety of viewpoints among minority students.”

But how can this be? What alchemy enables the law school to prefer students on the basis of surname or skin color without at the same time strengthening the notion of ethno-racial essentialism and viewpoint determinism? What prestidigitation allows the school to admit minority students with academic records (whatever the school’s metric) that are substantially weaker than those of their (other minority or majority) competitors without thereby reinforcing stereotypes of academic inferiority? How clueless does the majority think the non-preferred students and faculty are that they will somehow not notice what is going on and draw the logical and stigmatizing inference about group differences in academic performance (which is what a stereotype is)? These are, after all, elite educational institutions. By definition, they attract the most competitive students and faculty, individuals who place a very high (often excessive) value on the particular coin of their peculiar realm, academic excellence, and do so partly because they themselves are so well endowed with it.

To recognize the importance that elite schools give to academic factors is emphatically not to say that test scores and GPA are or should be their only criteria of admission, and no critic of Grutter need say anything so absurd. A sensible institution will consider a variety of factors in selecting its student body, although an elite school that hopes to maintain its position will give the greatest weight to academic potential or performance. In any event, the assumption that a group favored by ethno-racial preferences is more likely than members of other groups to excel on these non-academic factors is itself a stereotype, and a pernicious one at that. There is simply no a priori reason to believe, for example, that black applicants as a group are more likely to exhibit, say, leadership potential, community service, or other “soft variables” than applicants of other groups.

By the same token, a critic of Grutter need not deny the obvious fact that preferences of other kinds exist, and that some are objectionable. Preferences favoring legacies and athletes, for example, are also widespread even at elite schools. Recognizing the beneficiaries of these preferences as such also engenders stereotypes about their academic inferiority (e.g., “dumb jocks”). The important point, however, is that constitutional strict scrutiny does not demand special justification of such classifications as it does of ethno-racial ones (which, of course, is what the Equal Protection Clause was intended to invalidate), and the stereotypes arising from these other preferences are far less socially corrosive or individually stigmatizing.

Constitutional Test

The majority defines a defensible test for the constitutionality of ethno-racial preferences: “each applicant must be 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;” members of different groups must be on the same “admissions track” and must compete “on the same footing.” Having proclaimed this test, however, the majority, much like a high school principal determined to graduate the students regardless of their performance, proceeds to “dumb down” the test so that all can pass it, all the while insisting on the integrity of the original standard.

Race and ethnicity, O’Connor says, can be a “plus factor” in a system of “individualized assessments” so long as it does not constitute either a “rigid quota” (as in the undergraduate program) or “racial balancing.” But as Rehnquist and Justice Kennedy show statistically in their dissenting opinions, the law school weighs the plus factor for race and ethnicity so heavily that it creates -- in effect although not in name -- a two-track system tantamount to racial balancing in its offers of admissions with a view to achieving its numerically- and racially-defined critical mass. The majority, like the law school, wants to have it both ways: ethno-racial factors are only a “modest” plus factor in admissions, yet few of the favored minorities would be admitted without them – unless one is prepared to assume, contrary to fact, that they are so far superior to other applicants on the non-academic criteria that this superiority erases their academic deficits.

The truth, evident from the dissenters’ analysis and indeed from common sense, is that the majority can approve the law school’s affirmative action program under the majority’s own constitutional test for one reason and one reason only: the program is sufficiently opaque by design and allows enough scope for subjectivity and discretion in the arbitrary and undisclosed weighting of the “soft variables” in individual cases that a skeptic cannot prove unmistakably that race-ethnicity is not the predominant factor in the admission of preferred minorities. This fact, of course, renders the location of the burden of proof constitutionally decisive, which in turn makes the majority’s un-strict scrutiny, discussed earlier, all the more pivotal in generating the outcome in Grutter and future cases.

Race-Neutral Alternatives

The majority’s abject deference to the university is nowhere more apparent than in its treatment of race-neutral alternatives. All that is constitutionally required, it says, is for the law school to give “serious, good faith consideration of workable race-neutral alternatives.” The school has satisfied that requirement, the majority continues, because none of these alternatives would give the school the number of preferred minorities that the institution wants. This is true enough, but it is an answer to the wrong question. The right question is: given the constitutional presumption against ethno-racial preferences, a presumption so strong that strict scrutiny is required to enforce it, how imperfect must the race-neutral alternative be before the Court will allow the school to reject it in favor of a racialist, constitutionally disfavored one? Although there is no clear answer to this question, the majority does not even ask it. Nor, curiously, does it even mention what many regard as the most attractive race-neutral alternative, one based on economic disadvantage. This alternative is hardly ideal, as I explain in Diversity in America, but this imperfection in no way implies that ethno-racial preferences, whose defects go to policy as well as constitutionality, are therefore more acceptable.

The Future and the Politics of Preferences

Much has been made of the majority’s expectation “that 25 years from now, the use of racial preferences will no longer be necessary.” Justice Thomas’s recitation, in dissent, of the grim statistics on comparative academic performance makes such a hope seem unrealistic, and I would add that the studies of ethno-racial preferences in other societies provide no support for it. To the contrary, they indicate that such preferences, once established, endure and indeed expand to new groups and new program benefits.

The only exception to this pattern of which I am aware is in California and Washington State, where voter referenda have banned these preferences – and the exception, at least in California, is both revealing and disturbing. As I show in Diversity in America, relying in part on the reporting of a Wall Street Journal writer, Daniel Golden, the University of California has engaged in a series of stratagems expressly designed to circumvent Proposition 209. Some of the more egregious ones involve the channeling of minority students to new “critical race studies” programs that have lower admissions standards, the awarding of special admissions credit for foreign language fluency by minority students who are native-language speakers, “percentage” plans that rely for the efficacy on the continuation of segregated schooling patterns, greater use of unspecified (and unspecifiable) “holistic” criteria, and of course the use of winks and nods by admissions officials. We can expect that other bans on preferences will be met by similar, if not more creative, evasions.

Indeed, legal commentator Jeffrey Rosen uses this very fact to contend that preferences, which he seems to oppose in principle, should be maintained. All things considered, Rosen claims, it is probably better to have a system that openly acknowledges and publicly justifies preferences than one where they operate sub rosa and thus are even more susceptible to abuse. In truth, Rosen’s rationale may actually be the most persuasive case for the status quo – but it is not one, of course, that is rhetorically available to a putatively principled Court.

Nevertheless, one might view Justice O’Connor’s opinion as an implicit effort to craft precisely the kind of compromised outcome that Rosen reluctantly favors, to resolve this bitter debate once and for all and then move on. If so, I doubt that it will succeed. First, we can expect much future litigation over whether the use of race as a “plus factor” in a given affirmative action plan is excessive, in effect amounting to the proscribed “racial balancing.” By modeling their plans on Michigan’s, of course, schools can make such challenges more difficult. Grutter seems to give such schools a safe legal harbor. Ironically, the majority encourages uniformity, albeit in the name of diversity. For this reason, future litigation will focus not on the form of these plans but on how they are actually administered.

Second, our national experience suggests that difficult and divisive public issues in American life – affirmative action is certainly one of them – are seldom resolved by the Court’s decisions or indeed by any official fiat. History (not to mention the professoriate) has not been kind to the Court when it has attempted to settle such issues prematurely, peremptorily, or amorally. Dred Scott, Plessy, Lochner, Roe v. Wade, and Bowers v. Hardwick are among the decisions that illustrate the point. Will Grutter be another? Probably not. After all, the Court merely permits ethno-racial preferences, it does not require them – and it therefore allows democratic politics to have the final say and get its way.

What will democratic politics dictate? The key political fact is that elite institutions and elite opinion aside, affirmative action has little public support. The vast majority of Americans, including more than a third of blacks and more than 70% of Hispanics, oppose preferences in hiring and promotion, with the level of this opposition rising somewhat over time. When the issue is college admissions preferences, opposition is substantial even among blacks and other minorities. Although the level of opposition varies with the precise phrasing of the question, no researcher in this field doubts that public opinion remains decidedly and intensely negative, pretty much regardless of how the questions are formulated, the state of the economy, or personal financial conditions. This opposition, moreover, appears to be principled; it is just as strong among whites on the egalitarian left as among those on the political right. Politicians, who have a feel for these things, have long assumed that the electorate staunchly opposes race-conscious programs.

My guess, moreover, is that if the public knew how large the weighting of ethno-racial preferences in selective college admissions actually is – a leading researcher finds that black applicants “enjoy an advantage equivalent to an increase of two-thirds of a point in [GPA]-on a four point scale-or [the equivalent of] 400 points on the SAT” -- its opposition to preferences would be that much greater.

We are about to find out. The prospect is for many state-level campaigns seeking to bar preferences, as California did in Proposition 209, and these campaigns will surely educate the public about how large the preferences actually are and how they operate. Indeed, the first such campaigns have already begun. For someone like me who believes that issues of this kind ought to decided primarily by politics, not by courts, this prospect is encouraging – although the conflicts may get ugly. But these campaigns do raise serious doubts about the notion, popular among pro-preference pundits like Larry Tribe, that the Grutter majority somehow succeeded in crafting a pragmatic solution to this enduring controversy, capturing a social consensus favoring preferences. In reality, however, no such consensus exists, and the post-Grutter campaigns will destroy the illusion that it does.

September 5, 2003

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