Eden on Grutter
Here are some reactions to Grutter from John Eden:
The recent rulings in the Michigan cases represent a clear victory for advocates of affirmative action, but I think that victory came at an unreasonably high price. Even though the practical outcome of Grutter v. Bollinger is one that I would countenance as fair and just, the rationale offered by Justice O’Connor leaves much to be desired.
There are three principal weaknesses in her brief that deserve our attention. First, there’s the thorny question of whether she is relying on Bakke, in effect building on settled law and applying it to the case at hand, or whether she is taking a few ideas bandied about in Bakke and making law de novo.
The difficulties in interpreting and applying Bakke are legion. Consider that while the majority holding is relatively clear, for an outsider (non lawyer) it is amazing that such a fragmented decision should be – indeed, could be – the basis for constitutional jurisprudence about anything, much less affirmative action. Four of the Justices in Bakke would have upheld the set aside program to “remedy disadvantages cast on minorities by past racial prejudice.” In so doing, they would echo the reasonable sentiments of a recent editorial in the New York Times by Harvard sociologist Orlando Patterson:
First, while diversity is a goal that deserves to be pursued in its own right, it was a major strategic error for African-American leaders to have advocated it as the main justification for affirmative action. In doing so, they greatly expanded the number of groups entitled to preferences - including millions of immigrants whose claims on the nation pale in comparison to those who have been historically discriminated against. Such a development understandably alarmed many whites who were otherwise prepared to turn a pragmatic blind eye to their principled concerns about affirmative action.
Using diversity as a rationale for affirmative action also distorts the aims of affirmative action. The original, morally incontestable goal of the policy was the integration of African-Americans in all important areas of the public and private sectors from which they had been historically excluded. But if diversity is the goal, the purpose of affirmative action shifts from improving the condition of blacks to transforming America into a multicultural society. Thus the pursuit of inclusion is replaced by the celebration of separate identities.
Four other justices would have essentially avoided the constitutional question altogether by, as O’Connor nicely points out, striking “down the program on statutory grounds.” Powell issued the deciding vote, invalidating the set aside program but insisting nevertheless that the state has a compelling interest in a “properly devised admissions program involving the competitive consideration of race and ethnic origin.” To her credit, O’Connor calls attention to these facts. But, on the other hand, she does nothing to buttress the normative appeal of the diversity rationale, a rationale that she admits is “set forth in an opinion joined by no other Justice.” Strange indeed. O’Connor is obviously uncomfortable philosophically with her own reliance on the diversity rationale, and her frankness about these ambiguities is refreshing – if a bit disconcerting as well.
In the end, what O’Connor winds up saying is essentially this: We really don’t know what the Bakke holding means, especially when paired with new legal precedents (Marks), but since everyone else has disagreed about these matters (Nichols v. United States), we can move forward without too much fanfare. Perhaps the best thing to say is that the Grutter Court has attempted to endorse certain elements of Powell’s diversity rationale without claiming that 1) the original Bakke holding provides a clear, unadulterated legal mandate or that 2) the Bakke holding is itself dispositive with respect to the legitimacy of the Law School’s admissions program. “Of course,” skeptics may retort, “that’s how all precedents are applied!” No. Read O’Connor’s opinion and you too will be disturbed by the indeterminacy that abounds.
Now, we move to the second principal weakness with her view. For the sake of argument assume that Powell’s opinion, while not crystal clear, is the main starting point for the legal analysis. What then? Well, for starters, it is not at all clear that Powell’s opinion in Bakke does in fact stand for the proposition that racial diversity is, per se, a compelling state interest. Pay careful attention to the very specific rationale for using race as a category for admissions purposes proffered by Powell: (1) “It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to members of selected ethnic groups” that can justify the use of race. (2) “[T]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”
Clearly enough, under (2) one would expect that any permissible use of race in a university admissions program would have to adopt an individualized approach to assessing the qualifications of applicants. I believe that Rehnquist overstates his case a bit when he claims that Michigan Law was not engaged in individualized assessment simply because admissions patterns mirrored the relative composition of racial minorities in the applicant pool for any given year. The inference he wants to make – that Michigan was purely looking for the right numbers – doesn’t necessarily follow. However, I agree with him that if we take (2) seriously, then qualifications beyond race would have to be systematically taken into consideration by any legitimate affirmative action program. Whether there was enough data provided in the Law School case to make this determination is something I cannot comment on, as I didn’t read all the amicus briefs.
But more importantly, Powell points out under (1) that fidelity to the diversity rationale (DR) involves the idea that race is only a rough proxy. In other words, it looks as though we’re after viewpoint diversity, or socioeconomic diversity, or some other sort of diversity – but we’re forced to treat skin color, ethnic associations, and other more overt signals of these sorts of diversity as legitimate but limited proxies. I have two worries in this connection: 1) at fancy schools like Harvard and Stanford, I am not convinced that affirmative action really works in a way that reflects a commitment to (1); whether Michigan’s approach does adequately reflect a commitment to (1) is something that I cannot comment on with confidence. But I would emphasize that many – including minority students at highly regarded institutions like Stanford and Harvard – are skeptical of the notion that viewpoint diversity or socioeconomic diversity is really an aim that the practitioners, as opposed to the theorists and defenders, of affirmative action really have in mind when selecting students.
O’Connor does not lift a finger to address this set of issues. She does, of course, claim that “the Law School sufficiently takes into account, in practice as well as in theory, a wide variety of characteristics besides race and ethnicity that contribute to a diverse student body.” But don’t be fooled. The issue isn’t whether other factors come into play; the real issue is whether in using race the Law School is concerned – as the Bakke holding requires – with assessing race as a proxy for other types of diversity. If the Law School isn’t treating race in this way, then there’s a strong argument for thinking that the Law School’s program runs afoul of Powell’s very specific diversity rationale.
So what’s the third weakness? O’Connor claims, and Rehnquist seems to disagree, that under a strict scrutiny analysis narrow tailoring does not require “exhaustion of every conceivable race-neutral alternative.” Though strict scrutiny usually requires that racial classifications only be used when they are necessary to attain some compelling state interest, the Grutter Court held that the Law School’s plan, while not necessary in the strict sense, was indeed legally acceptable. Scalia and Rehnquist basically chime in with the same riposte: If the connection between the means Michigan Law has used and its end isn’t a tight one – that is, if there are other programs which could obtain the same or similar results without using racial classifications – then the narrow tailoring requirement hasn’t been met, and the Law School’s affirmative action program would be unconstitutional.
Responding to this worry is important, especially since some pretty sophisticated supporters of affirmative action – like Richard Kahlenberg – have been arguing for quite some time that a class-based approach to affirmative action is not only morally superior to a race-based approach, but also pragmatically workable. At the very least, O’Connor should have said something about the class based admissions programs at the UCLA School of Law and Boalt Hall (Berkeley), where socioeconomic status, the overcoming of racial stigma, and other variables are taken into account and weighed carefully. I mean, come on – no one really takes seriously the three alternatives (lottery, lowering of overall standards, and percentage plans) to race-based admissions which O’Connor explicitly addressed. But everyone – on both sides of the debate – is interested in the prospects of a class-based approach. And it’s a shame that the Grutter opinion doesn’t reflect this sea change in attitudes about the future of affirmative action. It’s certainly a victory, but one we shouldn’t feel excessively proud of.
posted by Lawrence Solum 11:47 AM
Blogging from Montreal: Guide to the Posts
Here is a quick guide to my posts from the ICANN meetings in Montreal:
Part 1 (Sunday, June 22, 2003): Introduction.
Part 2 (Sunday, June 22, 2003): The GAC Open Meeting.
Part 3 (Monday, June 23): The Non Commerical Users Constituency Meeting.
Part 4 (Tuesday, June 24): The GNSO Council.
Part 5 (Tuesday, June 24): The Request for Proposals for new sTLDs.
Part 6 (Wednesday, June 25): Who Owns the Root? The ccTLDs and ICANN.
Part 7 (Wednesday, June 25): More on gTLD expansion.
posted by Lawrence Solum 12:26 PM