Diversity, Scrutiny, Equality: How Grutter v. Bollinger Obfuscates Core Constitutional Values in Pursuit of a Vision

I. Introduction
When does unequal race-based treatment constitute equal protection under the law? In Grutter v. Bollinger, narrowly tailored preferential treatment of certain minorities is sanctioned by the "compelling interest" of "obtaining the educational benefits that flow from a diverse student body."¹ But while the Court paints a persuasive picture of the social desirability of its judgment, the majority relies on dicta in precedent and offers little else in the way of constitutional analysis. The dissent, in turn, delivers a thorough legal evisceration of the majority opinion that nonetheless ignores crucial practical distinctions between remedial and prophylactic discrimination. Whether the result was ultimately correct is wholly indiscernible, because each opinion relies on implicit assumptions about the meaning of equality—assumptions that are inaccessible to the lower courts and so useless in establishing a consistent jurisprudence of equal protection.

Somewhat perversely, a look at Grutter's legal backdrop will reveal that a state of confusion in "beneficial discrimination" cases is strongly supported by precedent (II). We will proceed from there to the facts of Grutter, as well as the majority and dissenting opinions (III). After outlining how the Court's implicit assumptions result in a continued jurisprudence of uncertainty, we will briefly consider two competing interpretations of equality and the possibilities they represent (IV). Our conclusion will summarize the issues and offer some parting speculation on the impact of politics in constitutional interpretation (V).

II. Context & Background

That the Grutter majority offers little in the way of constitutional analysis is perhaps understandable, given the vagaries of applicable precedent. The Court's regular inability to produce a majority, coupled with a quick succession of self-reversals in the early 1990's, reveals the challenge of interpreting the Equal Protection Clause with regard to ostensibly beneficial racial classification. After decades of applying a strict scrutiny standard of review to the suspension of equal protection in burdensome race-based governmental action, in 1978 the Court considered whether beneficial race-based governmental action should receive similar scrutiny.² When the Court considered Bakke, preferential classifications had never been approved "in the absence of . . . constitutional or statutory violations."³

When Allan Bakke was refused admission to Davis Medical School, he protested that a special admissions program reserving 16 spots for minority applicants violated his rights under the Equal Protection Clause.⁴ Announcing the judgment of a Court with no majority opinion, Justice Powell stated that the "guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color."⁵ This applied strict scrutiny to all racial classifications—absent "precisely tailored" action based on a "compelling state interest," no race, majority or minority, can justify government action.⁶

Justice Powell proceeded to muddy his own clear-cut statements of law with dicta holding up Harvard's admissions program as one possible way to "take race into account in achieving the educational diversity valued by the First Amendment" without resorting to numeric quotas.⁷ Though he acknowledged this might be "simply a subtle and more sophisticated—but no less effective—means of according racial preference," Justice Powell did not pursue the possibility further, preferring instead a presumption of good faith where no facial intent to discriminate could be discerned.⁸ But four Justices thought strict scrutiny was too severe a standard of review for "racial classifications 'designed to further remedial purposes,'" while four others "thought the case should be decided on statutory grounds."⁹ The end result was that Bakke secured admission to Davis Medical School even though the status of equal protection remained an open question.

Some seventeen years later—eight years prior to Grutter—the Court had an opportunity to summarize the development of the Equal Protection Clause as it related to beneficial race-based government actions. Not much had changed. The focal point was not, as might be expected, what equal protection ultimately entailed; rather, the issue was whether or not apparent violations of equal protection were always subject to strict scrutiny. After several cases considering the question and leaving it unresolved, the Court finally agreed in City of Richmond v. J.A. Croson Co. that "the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments."¹⁰ The Court further made a plain statement of the purpose of strict scrutiny: to "'smoke out' illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool."¹¹ The Court proceeded to waffle over whether Croson held true for the federal government, employing a Fifth Amendment analysis supporting "intermediate scrutiny" in Metro Broadcasting, Inc. v. FCC and overruling that analysis to some extent just five years later.¹²

This dialogue on the relative technical merits of strict versus intermediate scrutiny took place in an environment of strongly-held convictions regarding racial equality. Justice Stevens drew a very bold line between discrimination calculated to "subjugat[e] a disfavored group to enhance or maintain the power of the majority" and "[r]emedial, race-based preferences reflect[ing] . . . a desire to foster equality in society."¹³ Conversely, Justice Thomas drew no such distinction, suggesting that discrimination is inherently evil, no matter its aims.¹⁴

Neither view garnered the support of the majority, leaving equal protection jurisprudence a confusing series of ad hoc decisions. Ultimately, the precedent available to Grutter would consist of a maddeningly indeterminate hodgepodge analysis¹⁵ generally disfavoring quotas, possibly presuming good faith, potentially interpreting the First Amendment to favor racial diversity in higher education, and most likely requiring strict scrutiny—itself a question of narrowly tailoring government actions to fit a compelling state interest, with neither concept assigned a clear test.

III. Grutter v. Bollinger

A. The Facts

No matter the technical difficulties encountered by the judicial system, the issue of racial equality poses an all-too-practical problem, even for prestigious public institutions like the University of Michigan Law School (Law School). When Barbara Grutter applied to the Law School in 1996, efforts were underway to "ensure that a critical mass of underrepresented minority students would be reached so as to realize the education benefits of a diverse student body."¹⁶

It was believed that reliance on race-neutral factors alone would not result in the critical mass necessary to obtain certain perceived educational benefits.¹⁷ Consequently, while no percentages or numeric thresholds were set, in some cases an applicant's race was the determinative factor in extending an offer of admission.¹⁸ To facilitate these efforts, during admissions season the Director of Admissions would regularly consult reports tracking "the racial and ethnic composition of the class (along with other information such as residency status and gender)."¹⁹ The stated goal of these efforts was not a remedial response to past discrimination, but an attempt to achieve greater diversity in the student body.²⁰

The end result of these efforts is subject to conflicting interpretation. While the number of preferred minority students in each class "varied from 13.5 to 20.1 percent,"²¹ there was a "tight correlation between the percentage of applicants and admittees of a given race."²² From 1995 to 2000, the Law School admitted thirty-seven students with LSAT scores of less than 151; thirty-one of those students were underrepresented minorities.²³ Conversely, sixty-seven minority applicants with LSAT scores of greater than 158 were rejected in that time period—but fifty-six of those applicants were Hispanic, while only six were African-American.²⁴

As a higher-education admissions case, Grutter in many ways brought the Supreme Court full-circle, back to Bakke. Ms. Grutter, who had an undergraduate GPA of 3.8 and a 161 LSAT score, was placed on the Law School's waiting list before ultimately being rejected.²⁵ She subsequently "alleged that her application was rejected because the Law School uses race as a 'predominant' factor" in extending offers of admission.²⁶

B. Procedural History

The district court enjoined the Law School from considering race in the admissions process.²⁷ It reasoned that achieving a racially diverse student body was not a compelling state interest, and that in any event the solution was not narrowly tailored to that interest.²⁸ The court of appeals reversed, interpreting Justice Powell's opinion in Bakke as "binding precedent establishing diversity as a compelling state interest."²⁹ The Supreme Court granted certiorari to address "[w]hether diversity is a compelling state interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities."³⁰

C. Majority Holding

The Court first seeks to clear up decades of confusion by endorsing Justice Powell's opinion in Bakke.³¹ It further reaffirms its position that all governmentally imposed racial classifications are subject to the strict scrutiny standard of review.³²

Then the Court conducts its strict scrutiny analysis. In determining whether diversity is a compelling state interest, the Court employs Justice Powell's First Amendment analysis to presume that the Law School is acting in good faith when it asserts that diversity is in fact crucial to its education mission.³³ Then the Court shares the Law School's reasoning, ultimately agreeing that a diverse student body is of major interest to work in an increasingly global marketplace, to an effective military, to good citizenship, and to the legitimacy of American leadership.³⁴

Turning to the question of narrow tailoring, the Court holds that a race-conscious admissions program is narrowly tailored so long as it is "flexible" and makes no use of a numeric quota.³⁵ The Court allows that numbers will play some role; so long as that role is not rigid, it is narrowly tailored.³⁶ There is some concern expressed that admissions be individualized and holistic in their consideration of race, so as not to make race "the defining feature" of an application.³⁷ This does not "require exhaustion of every conceivable race-neutral alternative,"³⁸ but it does require some "logical end point."³⁹ Because "the educational benefits that flow from a diverse student body" are a compelling state interest,⁴⁰ the Law School's narrowly-tailored response is not prohibited.

D. Dissents

Justice Scalia flatly declares the Law School's "critical mass" argument to "challenge even the most gullible mind."⁴¹ His analysis cuts straight to the heart of the confusion that has plagued the Court since Bakke: "Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today's [decision] seems perversely designed to prolong the controversy and the litigation."⁴²

Chief Justice Rehnquist softens Justice Scalia's position somewhat, but generally agrees that while the Court goes through the motions of conducting a strict scrutiny analysis, "its application of that review is unprecedented in its deference."⁴³

Along similar lines, Justice Thomas expresses concern that the Court "upholds the Law School's racial discrimination not by interpreting the people's Constitution, but by responding to a faddish slogan of the cognoscenti."⁴⁴ He suggests that only the prevention of violence and anarchy truly constitutes a compelling state interest,⁴⁵ takes issue with the way the Court's holding makes educational benefits a compelling state interest,⁴⁶ and fails to find any real justification for invoking the First Amendment in this case.⁴⁷ Putting aside strict legal analysis, Justice Thomas thinks that the Court is trying to uphold a vision of employing discrimination to cure discrimination; despite Justice O'Connor's efforts in authoring the concept clearly into Adarand, Justice Thomas notes, "the majority still cannot commit to the principle that racial classifications are per se harmful and that almost no amount of benefit in the eye of the beholder can justify such classifications."⁴⁸

IV. Analysis

Not only does the Court's holding in Grutter offer more confusion than guidance, the apparent alternative embodied in the dissent seems impracticable. Each analysis strongly emphasizes the correctness of its proposed (and politically charged) outcome with shockingly little deference paid to more fundamental questions underlying the issue as formulated. If the Court would place its analysis of racial preference alongside its analysis of racial burden in the realm of settled law, it must take seriously Justice Powell's assertion that "the Court's role is to discern 'principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time, and to lift them above the pragmatic political judgments of a particular time and place.'"⁴⁹

A. Sowing Confusion Through Internal and External Inconsistency

Despite its efforts to lend finality to a long chain of difficult cases, the Court's decision sows confusion in three ways. First, Grutter appears to endorse Justice Powell's Bakke opinion, but its application of Bakke cherry-picks supportive language and casually incorporates dicta while ignoring the factual congruency and legal substance of the decision. Second, the Court through Grutter abdicates a significant portion of its judicial power, giving substantial interpretive deference to social trends as well as educational institutions. Third, even in its conclusion Grutter sends mixed signals, painting preferential discrimination as probably wrong but presently necessary without offering substantive guidance for ascertaining when the necessity has passed.

A cursory reading of Bakke leads one to wonder whether the Court has mistakenly endorsed the wrong case. Although the Court in Bakke plainly endorses the strict scrutiny standard of review,⁵⁰ it also declines to approve any "classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of . . . constitutional or statutory violations."⁵¹ Moreover, Justice Powell notes in Bakke that semantic distinctions between quotas and goals are "beside the point" where a program "is undeniably a classification based on race and ethnic background."⁵² Bakke is factually congruous with Grutter, for even though the Law School declined to specify a numeric quota, it nonetheless conceded that race alone was determinative for some applicants.⁵³ To distinguish the cases by suggesting that Davis Medical School was too rigid while the Law School kept its practices at least arguably "flexible" seems an unwise inducement to obscure institutional intent, but this is precisely the effect of Grutter.⁵⁴ Ultimately, it is Justice Powell's Harvard-inspired dicta from which the Grutter majority draws the bulk of its reasoning, rendering hollow its otherwise ringing endorsement of his analysis.

Compounding this nominative adoption of Justice Powell's Bakke opinion is the Court's application of strict scrutiny in Grutter. In determining whether diversity is in fact a compelling state interest, the Court deferred the task of defining "compelling" to the Law School and its amici.⁵⁵ One is left to wonder how many studies or expert witnesses the Court would require to overturn itself, in this or any other case.⁵⁶ Further, the Court's deference sets the standard for lower courts. Under Grutter, the lower courts must apparently inquire after the good faith preferences of parties and the prevailing trends of social science to determine whether a given state interest is in fact compelling.

In the interest of generous interpretation, it is worth noting that the Court did not explicitly endorse social science as the arbiter of compelling interests. Doubtless, the Court would not have shown such deference to studies recommending the educational benefits of resegregation, or even less insidious but patently ludicrous scholarly works. But this raises a difficult dilemma. If studies and expert witnesses are determinative with regard to the importance of diversity, then the Court has abdicated its proper role in determining such questions. If the studies and expert witnesses are merely illustrative, then what are the underlying legal reasons for finding diversity to be a compelling interest? The lower courts are left to choose between deferring to the opinions of industry experts and interpreting the issue without guidance from the Supreme Court.

Though Grutter thus has little guiding value for equal protection cases generally, the Court does make some very definitive statements with regard to diversity in education. Analytic implications aside, student body diversity is plainly upheld as a compelling state interest.⁵⁷ Solutions that are "precisely tailored" to serve that interest are exempted from the requirements of equal protection.⁵⁸ Grutter does not prefer Justice Powell's language of precision, however, employing instead a discussion of "narrowly" tailored approaches.⁵⁹ This is apparently because, however "narrow" an approach it might arguably be, the test described by the Court is anything but precise. Indeed, the "flexible" program described by the Court⁶⁰ is much less precise in its effect than one imposing strict numeric quotas, as a numeric quota would be meticulously precise in its result, while a truly flexible program could potentially yield inconsistent results from year to year, even potentially resulting in less diversity than institutionally preferred. The Court essentially conducts an ad hoc analysis, declaring what "narrowly tailored" means for the Law School without reference or deference to what "narrowly tailored" means in itself.

In all of this, the Court does suggest one generally applicable principle of narrow tailoring: "all governmental use of race must have a logical end point."⁶¹ This takes for granted that any government use of racial classification is at best the lesser of two present evils. It also assumes that present governmental use of racial classification will naturally move the country closer to that logical end, ignoring the possibility suggested by Justice Thomas that even "beneficial" racial classification actually worsens race relations.⁶² So at what point will "the use of racial preferences . . . no longer be necessary to further the interest" of diversity?⁶³

The Court fails to address this question, though it does expect results by 2028. What the Court fails to critically consider is the level of diversity required to attain the purported benefits in which the state has such a compelling interest. Is this a natural and spontaneous proportionality of representation? A minimum number of minority students from any given, visually identifiable racial background? Must the proportionality reflect local or national demographics? How large must a minority be to contribute effectively to diversity? With so much uncertainty, no wonder Justice Scalia thought the Court's decision "perversely designed to prolong the controversy and the litigation."⁶⁴

Without substantively distinguishing the facts in Bakke, devoid of specific insight into the analysis conducted in discovering a compelling interest, and lacking a plainly applicable definition of narrow tailoring, Grutter fails to provide anything of discernible value to the lower courts. We must conclude with Justice Thomas that the "absence of any articulated legal principle" reveals a Court engaged, not in legal analysis, but in the championing of a social cause.⁶⁵

Whether such an approach is justifiable is beyond the scope of this discussion, but it certainly goes against the interest of establishing a consistent jurisprudence of equal protection.

B. Polemic Dissent

None of the foregoing should be taken to infer that the dissent offers any positive alternatives to the Law School's approach. Simply put, the dissenting minority thinks "[t]he Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception."⁶⁶ This is a clear-cut legal position, textually grounded in the Fourteenth Amendment, unambiguous in its interpretation, and easily applied by the lower courts. It would also put educational institutions in the unenviable position of waiting for someone to drop the hammer of remedial action.

The problem is simple: if the Law School cannot proactively address racial inequity in its admissions, it might find itself in a position of de facto discrimination subject to a remedial solution.⁶⁷ It is easy to imagine a publicly operated school finding itself under a court order to increase the racial diversity of its student body. So which is more desirable: a self-initiated program of change, or the same program plus the scrutiny of court supervision? With regard to judicial economy, both the majority and the dissent seem problematic. But what Grutter lacks in legal coherence it rapidly makes up for in practicability.

C. Clarifying the Problem

So what is the proper approach? How can the Court provide a practical response that includes sufficient legal analysis for consistent jurisprudence on the matter? One possible answer rests in the Court's consideration, not of tangential concepts like institutional diversity or levels of scrutiny, but of the core concept of equality.

The Fourteenth Amendment provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws."⁶⁸ The strict scrutiny standard is not a built-in exception to the Fourteenth Amendment; it is a judicial test to determine whether some facially unequal treatment nonetheless serves a legitimate purpose.⁶⁹ So what constitutes equal protection? Perhaps equality is a matter of opportunity, wherein the law merely refrains from artificially limiting individual liberty on the basis of race. Under this theory, Grutter was wrongly decided as no law preventing admissions on the basis of race is in place. But perhaps equality is a matter of outcomes, demanding proportional representation by whatever means necessary. Under this theory, the decision in Grutter was correct, but its strict scrutiny analysis was unnecessary because the Law School's program was not technically a violation of equal protection to begin with.

Historically, the implicit assumption inherited from language broadly condemning all racial distinction⁷⁰ is that opportunity is protected, while outcomes are not. Grutter incorporates case law that relies on this traditional assumption, but the judgment reached in Grutter supports a completely disparate view of equality—that equality is a question of outcomes. The confusion evident in Grutter is nothing less than the natural result of a Court trying to serve two ideological masters.

It is within the Court's power to say what equality means. If equality is a question of opportunity, the Court should say so, and its decisions should reflect as much. If equality is a question of outcomes, the Court should precisely formulate its legal expectations. Neither theory is without merit or drawback, but unless the Court can choose a clear position, equal protection cases will continue to be decided on an ad hoc basis, as questions of prevailing social trends instead of controlling legal principles.

V. Conclusion

It would be impossible to say whether the Supreme Court came to the correct conclusion, as Grutter implicitly relies on two competing theoretical interpretations of equality in reaching its result. In this sense Grutter provides a factual result without reaching any substantive legal conclusion at all. Because the Court relies on implicit assumptions rather than explicit legal reasoning, lower courts will continue to founder in deciding equal protection cases. It seems likely that the Court will have to explicitly address the specific meaning of equality before it can effectively combine practical legal solutions with sound legal reasoning in equal protection jurisprudence.

In closing, it is worth noting that the Court's apparent reluctance to commit to a strong position on equal protection is undoubtedly well-intentioned. Technical legal analysis is scant comfort when strongly-held convictions are in play, and racial equality is not the only kind of equality the Court has to consider in deciding the meaning of equal protection. An unpopular decision—even a technically correct one—can have significant and often unpredictable social and political impact. But it is shortsighted, at best, to tread the eggshells of popular opinion at the expense of clarity and consistency when setting binding legal precedent; the Court needs to leave popular opinion for elected officials to worry about. In its next case on ostensibly beneficial discrimination, the Court should carefully and explicitly discuss what equality under the Fourteenth Amendment means, before it decides on the most desirable outcome.

--Kenneth R. Pike

Footnotes

1: Grutter v. Bollinger, 123 S. Ct. 2325, 2347 (2003).

2: Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2108 (1995).

3: Regents of Univ. of Cal. v. Bakke, 98 S. Ct. 2733, 2754 (1978).

4: Id. at 2741–42.

5: Id. at 2748.

6: Id. at 2753.

7: Id. at 2761.

8: Id. at 2762–63.

9: Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2108 (1995) (quoting Regents, 98 S. Ct. at 2783).

10: Id. at 2110.

11: City of Richmond v. J.A. Croson Co., 109 S. Ct. 706, 721 (1989).

12: Adarand Constructors, Inc., 115 S. Ct. at 2111–13.

13: Id. at 2120 (Stevens, J., dissenting).

14: Id. at 2119 (Thomas, J., concurring).

15: See e.g. Grutter v. Bollinger, 123 S. Ct. 2325, 2337 (2003) (listing several "divergent" opinions attempting to apply Bakke in the lower courts).

16: Grutter v. Bollinger, 123 S. Ct. 2325, 2333 (2003).

17: Id. at 2333–34. See also William C. Kidder, Law and Education: Affirmative Action Under Attack: The struggle for Access from Sweatt to Grutter: A History of African American, Latino, and American Indian Law School Admissions, 1950–2000, 19 Harv. BlackLetter L.J. 1, 23 (2003) (showing the relative likelihood of admission to an ABA law school as demonstrably higher for Caucasian applicants).

18: Grutter, 123 S. Ct. at 2334.

19: Id. at 2333.

20: Id. at 2334.

21: Id. at 2343.

22: Id. at 2369 (Rehnquist, C.J., dissenting).

23: Id. at 2361 (Thomas, J., dissenting).

24: Id. at 2367 (Rehnquist, C.J., dissenting).

25: Id. at 2332.

26: Id. at 2332–2333.

27: Id. at 2335.

28: Id.

29: Id.

30: Id.

31: Id. at 2337.

32: Id.

33: Id. at 2339.

34: Id. at 2339–2340.

35: Id. at 2342.

36: Id. at 2343.

37: Id.

38: Id. at 2344.

39: Id. at 2346.

40: Id. at 2347.

41: Id. at 2348 (Scalia, J., dissenting).

42: Id. at 2349 (Scalia, J., dissenting).

43: Id. at 2366 (Rehnquist, C.J., dissenting).

44: Id. at 2350 (Thomas, J., dissenting).

45: Id. at 2352 (Thomas, J., dissenting).

46: Id. at 2353 (Thomas, J., dissenting).

47: Id. at 2357 (Thomas, J., dissenting).

48: Id. at 2361 (Thomas, J., dissenting).

49: Regents of Univ. of Cal. v. Bakke, 98 S. Ct. 2733, 2753 (1978) (quoting A. Cox, The Role of the Supreme Court in American Government 114 (1976)).

50: Id. at 2748.

51: Id. at 2757.

52: Id. at 2747.

53: Grutter v. Bollinger, 123 S. Ct. 2325, 2334 (2003).

54: See, e.g., Linda Greenhouse, Court Reviews Race as Factor in School Plans, N.Y. Times, Dec. 5, 2006, at A1 (portraying an oral argument wherein Justice Souter asks whether "the important thing" in preserving preferential racial discrimination "is to hide the ball." The response given was that "the Constitution puts a premium on avoiding express racial classifications").

55: See Grutter, 123 S. Ct. at 2339–2340.

56: One also might wonder whether the Court examined the studies or merely adopted their conclusions to lend the weight of scientific authority to a socially desirable outcome. See generally Justin Pidot, Intuition or Proof: The Social Science Justification for the Diversity Rationale in Grutter v. Bollinger and Gratz v. Bollinger, 59 Stan. L. Rev. 761, 765 (2006).

57: Grutter, 123 S. Ct. at 2337.

58: Regents of Univ. of Cal. v. Bakke, 98 S. Ct. 2733, 2753 (1978).

59: E.g. Grutter, 123 S. Ct. at 2342.

60: Id.

61: Id. at 2346.

62: Id. at 2362 (Thomas, J., dissenting).

63: Id. at 2347.

64: Id. at 2349 (Scalia, J., dissenting).

65: Id. at 2361 (Thomas J., dissenting).

66: Id. at 2350 (Scalia, J., dissenting).

67: Cf. Regents of Univ. of Cal. v. Bakke, 98 S. Ct. 2733, 2754 (1978) (discussing the validity of preferential race-based classification in response to specific constitutional or statutory violations).

68: U.S. Const. amend. XIV, § 1.

69: See City of Richmond v. J.A. Croson Co., 109 S. Ct. 706, 721 (1989).

70: See Regents of Univ. of Cal., 98 S. Ct. 2733, 2748 (1978) (quoting several cases holding racial classification of any kind as naturally and strongly suspect).