In the seminal 1978 Supreme Court case, Regents of the University of California v. Bakke, four justices held that racial quotas and set asides, implemented as part of an affirmative action program at the UC Medical School at Davis, violated the non-discrimination provisions of the Civil Rights Act. Four other justices concluded that race can sometimes be applied as one factor among others to counteract past discrimination. Justice Lewis Powell concurred with both views. As a result, the Court ordered that Alan Bakke be admitted to the UC Medical School, but that a race-based admissions criterion might be permissible in subsequent cases. In examining the validity of affirmative action programs, the Court would apply a two-part strict scrutiny test: First, the program must be designed to achieve a compelling state interest. Second, the program had to be narrowly tailored – i.e., it must not sweep more broadly than necessary, and the goals must not be attainable via race-neutral means.
Fast forward a quarter of a century. In 2003, the Court validated the affirmative action program at the University of Michigan Law School, which used race as an admissions factor to reach a “critical mass” of minority students. That policy, argued the Law School, served a “compelling interest in achieving diversity among its student body.” In a 5–4 opinion by Justice O’Connor, the Court agreed. Justice O’Connor noted that “all factors that may contribute to diversity are meaningfully considered alongside race” as part of an “individualized inquiry into the possible diversity contributions of all applicants.” After Grutter, admissions programs designed to promote racial diversity would be deemed to satisfy the first part of the Court’s strict scrutiny test – i.e., diversity is a compelling state interest. Still, the programs would have to satisfy the second part of the test – i.e., the programs must be narrowly tailored. In Grutter, the University of Michigan Law School passed that test.
Today, the Supreme Court is being asked to overturn Grutter. The case is Students for Fair Admissions v. Harvard,consolidated with a similar case involving the University of North Carolina. The plaintiffs argue that the affirmative action programs at Harvard and UNC have discriminated against Asian applicants. Because UNC is a public university, it is bound by the Equal Protection Clause of the 14th Amendment. And because Harvard receives significant federal funding, it is bound by Title VI of the Civil Rights Act, which also prohibits racial discrimination. If the Court decides that Asians have been unduly harmed, it could declare that diversity is not a compelling interest, thus reversing Grutter; or the Court might determine only that Harvard’s and UNC’s programs were not narrowly tailored because the schools could have met their diversity goals using race-neutral admissions policies.
My personal view of the Grutter case goes like this. The Court implicitly condoned four injustices: punishment of individuals to advance group interests; discrimination that often benefited non-victims and injured those who had done no wrong; preferences for some minorities who endured few of life’s hardships; and prejudicial treatment of other minorities and some whites who were less fortunate than those persons who were favored.
Plainly, the 14th Amendment’s Equal Protection Clause was intended in major part to target racial discrimination. So, if Justice John Marshall Harlan, in his famous Plessy v. Ferguson dissent, meant for the term “color-blind Constitution” to rule out race-consciousness, he clearly over-reached. But if he meant, as he explained further, that our color-blind Constitution rules out racial classifications, then he was more in tune with Chief Justice John Roberts’ recent guidance (Parents Involved v. Seattle, 2007): “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
My prediction: The Roberts Court will surely not dispute that the Equal Protection Clause and Title VI allow race-conscious remedies that address actual or potential individualized discrimination. But the Court will likely hold that racial classifications for the purpose of achieving diversity are unconstitutional. Diversity will no longer be considered as a compelling governmental interest that justifies classifying persons by race and extending benefits to those persons merely because they fall within the favored group.
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