DIVERSITY, AFFIRMATIVE ACTION, AND HIGHER EDUCATION

Ralph D. Mawdsley1 * *

Cleveland State University, USA

The Equal Protection Clause o f the US Constitution’s Fourteenth Amendment declares that ‘no state shall... deny to any person within its jurisdiction the equal protection o f the laws’. In the seminal case o f Brown v Board o f Education, the Supreme Court, in invalidating the ‘separate but equal’ doctrine invoked in Plessy v Ferguson, held that ‘[s]egregation o f children in public schools solely on the basis o f race deprives the children o f the minority group o f equal educational opportunities, even though the physical facilities and other "tangible" factors may be equal'.The Supreme Court declared that, once de jure segregation had been eradicated, school districts were under no obligation to remedy any imbalances caused by demographics. While Brown and its progeny indicated when public educational institutions no longer had an obligation to use affirmative action to correct segregation, they did not clarify whether those institutions could affirmatively use race conscious decision-making to enrol underrepresented minorities. Within the past thirty-four years, the Supreme Court has decided three cases, Regents o f University o f California v Bakke, Gratz v Bollinger, and Grutter v Bollinger, addressing whether the use o f race-conscious admissions standards to increase diversity among students violated the Equal Protection Clause. In 2012, the Court granted certiorari to decide a fourth case, Fisher v University o f Texas at Austin ( ‘Fisher ’), where the University o f Texas had designed an affirmative action process for admitting members ofminorities as students. The purpose o f this paper is to examine how the Supreme Court has viewed diversity as an admissions criteria in the past and how those decisions are likely to influence the Court’s decision in Fisher in 2013.

I Introduction

The Equal Protection Clause of the US Constitution’s Fourteenth Amendment declares that ‘no state shall ... deny to any person within its jurisdiction the equal protection of the laws’.1 In the seminal case of Brown v Board o f Education (‘Brown’),2 the Supreme Court, in invalidating the separate but equal doctrine invoked in Plessy v Ferguson (‘Plessy’),3 held that ‘[segregation of children in public schools solely on the basis of race deprives the children of the minority group of equal educational opportunities, even though the physical facilities and other “tangible” factors may be equal’.4

While the Supreme Court in Brown unanimously declared that ‘[s]eparate educational facilities are inherently unequal’,5 it was not until 1968 that the Court set forth the affirmative action steps ‘necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch’.6 However, even with legally enforced racial separation removed, demographic shifts and other factors frustrated integration efforts, making it clear that the roots of segregation might run deeper than had been anticipated.7 Confronted with this reality, the Court

1Address for correspondence: Dr Ralph D. Mawdsley, Professor of Law, Cleveland-Marshall School of Lawand Roslyn Z. Wolf Professor of Education, Cleveland State University, 2121 Euclid Ave, Rhodes Tower1419, Cleveland, Ohio, 44115 USA. Email: ralph_d_mawdsley@yahoo.com

1836-9030 Vol 18, No 1, 2013, pp. 7-19International J ournal of La w & E ducation 7

chose to relax the school districts’ obligation, ‘replacing its 1968 call to remove segregation “root and branch” with a 1991 declaration that discrimination need only be ‘eliminated to the extent practicable’.8 Once under a court injunction to desegregate, a desegregation injunction must be dissolved once the school board meets its ‘burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation’.9

Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation. Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors.10

This more forgiving standard generated a broad public debate as to how alleged educational inequalities should be addressed in K-12 education where federal courts have declared unitary status for a school district and have dissolved the segregation injunction. If unitary status has been declared and ‘[s]tudents of color continue to lack equal access to highly qualified faculty, Advanced Placement courses, science labs, and other necessary components of a quality education’,11 should the Equal Protection Clause continue to be available to level the ground?

However, the K-12 desegregation case law came not only to impact the extent to which courts could use race-conscious criteria (such as busing students to public schools based on race) to end segregation, but also the extent to which public schools not under federal court desegregation orders could use race as a factor in promoting diversity in K-12 schools. In 2007, the Supreme Court held, in two decisions from different circuits, that race-conscious decisions regarding student enrolment within a public school district would be subject to the same compelling interest and strict scrutiny tests that had been invoked in Brown}1 The question that remained was the extent to which the same tests in K-12 would apply to race-conscious admissions decisions in higher education.

This discussion examines whether higher education institutions should be able to use race- based admissions criteria to increase the numbers of minority students in universities, university programs, and even classrooms. The common question for courts is to determine whether the Equal Protection Clause permits public universities to use racial diversity as the means of determining student admissions. While the author seeks to present a balanced approach to the use of affirmative action in university admissions, the focus of this article is the examination of arguments that the Supreme Court might use to reach a different result from its earlier University of Michigan Law School case (Grutter) that upheld the use of affirmative action in admissions as an acceptable form of diversity.

II D iversity in Higher Education

The law pertaining to diversity in higher education has developed in the shadow of the lengthy constitutional struggle to eliminate race-based segregation in K-12 education. However, since higher education occurs outside the legal strictures of compulsory attendance, the approaches to diversity in higher education have not been able to use the ubiquitous K-12 solution of busing. Because attendance in higher education is voluntary, the solution to increasing diversity has resulted in the development of race-conscious admissions policies for increasing enrolment by underrepresented minority populations. When the invocation of those race-conscious policies results in the denial of admission to non-minorities, the US Supreme Court has been called upon to determine the constitutionality of these policies. Within the past thirty-four years, the SupremeCourt has decided three cases (Regents o f University o f California v Bakke (‘B a k e ’),13 Gratz

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v Bollinger (‘Gratz’),14 Grutter v Bollinger (‘Grutter’)15 addressing whether the use of race­conscious admissions standards to increase diversity violates the Equal Protection Clause, and has granted certiorari to hear a fourth case from Texas, Fisher v University o f Texas at Austin (‘Fisher’),16 in the 2012-13 term. This paper will examine how the Court’s decisions in Bakke, Gratz, and Grutter are likely to shape its decision in Fisher.

In Bakke, a divided Court invalidated a medical school admissions program that reserved 16 of 100 places for disadvantaged minority students. Justice Powell, writing for the plurality,17 opined that ‘[preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake [is forbidden by] the Constitution’.18 Justice Powell’s most significant and quoted comments concerned the extent to which a university goal of pursuing diversity among admittees is permissible under the Equal Protection Clause. He opined that ‘the contribution of diversity [to a university] is substantial’ but that ‘[e]thnic diversity ... is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body’.19 Thus, although the medical school had an interest in diversity among its students, it did not have ‘an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups’.20 The kind of diversity permitted by equal protection is that which ‘encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element’.21

Few decisions from the Supreme Court were awaited with such anticipation as the Gratz and Grutter affirmative action cases from the University of Michigan. In Gratz, the Court in a 7-2 decision struck down the University’s undergraduate admissions process using a point system that allocated 20 points (out of a total of 150) based on race or ethnicity.22 This point system created a pool of vacant positions by placing on hold nonminority applicants otherwise admissible, positions that would be applied on a rolling basis during the admissions period to admit minority applicants who applied at any time during the admissions period. In Grutter, the Court in a 5-4 decision upheld the University of Michigan Law School’s use of a race preference system that permitted applicants with lower LSAT scores and GPAs to be admitted over nonminority students.

The Grutter majority, despite Justice Powell’s own reservations in Bakke about the implementation of diversity as an admissions goal,23 ‘endors[ed] Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions’.24 One could debate whether the majority in Grutter had created new law regarding diversity and education, or merely attempted to clarify the already-existing meaning of Bakke. Justice O’Connor, in her majority opinion in Grutter enigmatically remarked that, ‘[i]t has been 25 years since Justice Powell first approved the use of race to further an interest in student diversity in the context of public higher education. ... We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today’.25 It remained for the dissenting justices in Grutter, especially Justices Thomas and Scalia, to address the reasoning espoused by the majority and to explore the following unanswered policy questions in the future: the relationship between judicial deference and the decision-making of higher education institutions; the relationship between minority representation in higher education institutions and those institutions’ self-selected reputations; and, the relationship between minority critical mass in higher education institutions and the number of minority groups represented. These three areas are discussed later in this article.

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Ill Fish er v University o f Te x a s a t A ustin ( ‘UTA ’): Facts

Fisher v University o f Texas at Austin (‘ UTA ’)26 challenged the constitutionality of a post- Grutter admissions policy adopted by the University of Texas at Austin (UTA) Board of Regents in 2005 to increase the numbers of minority students at the university. Prior to this 2005 admissions policy, the Texas legislature, in 1997, had enacted legislation approving a Top Ten Percent law (TTP)27 giving all students who graduated in the top ten percent of their high schools admission into Texas’ public universities, but not necessarily to UTA. The TTP was in response to the Fifth Circuit’s 1996 decision in Hopwood v Texas (‘Hopwood’)2* holding that an affirmative action policy admitting minorities to the UTA law school violated the Equal Protection Clause. In 1997, the Texas Attorney applied Hopwood to admissions at all Texas universities.29 While the purpose of the 1996 law was to ‘ensure a highly qualified pool of students each year in the [Texas] higher education system ... while promoting diversity among the applicant pool so that a large well qualified pool of minority students [could be] admitted’,30 a post-Grutter survey revealed that 90 per cent of UTA’s smaller classes in 2002 had either one or zero black students.31

The plaintiff in Fisher was a white Texas resident who had not graduated in the top 10 per cent of her high school class and, thus, did not qualify for automatic admission to a Texas university under the TTP law. However, she claimed that she had been denied admission for consideration under the remaining 20 per cent because of the UTA’s diversity admissions policy.

In determining admission to fill the 20 per cent, applicants were evaluated based on an Academic Index and a Personal Achievement Index.32 The Academic Index used a mechanical formula that weighed ‘hard variables’ such as an applicant’s standardised test scores and high school rank in order to predict freshman performance.33 The Personal Achievement Index, on the other hand, relied on ‘soft variables’ and was based on three scores. The first two scores came from each of two essays that applicants were required to submit. The third score, referred to as the ‘personal achievement score’, was assigned after an evaluation of the applicant’s entire file.34 In determining an applicant’s personal achievement score, admissions personnel examined an applicant’s ‘demonstrated leadership qualities, awards and honors, work experience, and involvement extracurricular activities and community service’.35 Finally, the personal achievement score also included a ‘special circumstances’ element that reflected the ‘socioeconomic status or the applicant and his or her high school, the applicant’s family status and family responsibilities, the applicant’s standardized test score compared to the average of her high school, and the applicant’s race’.36

The ‘special circumstances’ component of the Personal Achievement Index was given no numerical values and each ‘special circumstance’ was considered as a whole to ‘provide the fullest possible understanding of the student as a person and to place his or her achievements in context’.37 As a result, race affected ‘only a small part of the applicant’s overall admissions’, being only one subset of the ‘personal achievement score’ which in turn was a subset of the Personal Achievement Index to be considered alongside the applicant’s Academic Index.38

A UTA: Federal District and Fifth Circuit DecisionsThe Fisher district court found the UTA admissions policy to be narrowly tailored for purposes

of meeting the compelling interest requirement of the Equal Protection Clause. Interpreting Grutter, the federal district court upheld the UTA admissions plan for the following four reasons: (1) race was only ‘one factor among many’, which the University used to assemble a diverse student body;39 (2) the UTA admissions plan demonstrated ‘serious, good faith consideration

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of workable race-neutral alternatives’ obviating the need to address whether the means adopted by UTA had exceeded some undefined ‘minimal effect’ on diversity;40 (3) the mere existence of race-neutral alternatives, like percentage plans, that could improve diversity does not preclude universities from considering race in admissions, as long as the university has given those alternatives ‘serious, good faith consideration’;41 (4) and, in terms of Grutter’s requirement that ‘race-conscious admissions policies must be limited in time’, UTA’s policy ‘establishes that every five years UTA’s admissions process is evaluated specifically to assess whether consideration of race is necessary to the admission and enrollment of a diverse student body’.42

The Fifth Circuit affirmed the district court decision in Fisher, holding that: the university’s admissions policy was supported by compelling interest in achieving critical mass, rather than outright racial balancing for its own sake; narrow tailoring did not require exhaustion of Texas Top Ten Percent law as a constitutionally mandated alternative; and, the university had not already surpassed critical mass, as would render any race-based consideration unnecessary. The Fifth Circuit found that the UTA’s diversity plan was necessary because the state’s TTP Law was not furthering the UTA goal of educational diversity. Even though the Texas legislature had capped the number of TTP admissions at 75 per cent and the overall minority percentage of attendance had increased, the African-American and Hispanic students were largely concentrated in the Colleges of Social Work (25% Hispanic and 10% African-American) and Education (22.1% Hispanic and 10.4% Black), while the College of Business Administration was only 14.5 per cent Hispanic and 3.4 per cent African-American.43 Rejecting any fixed number in determining ‘critical mass’, the Fifth Circuit opined that ‘[t]he type of broad diversity Grutter approved does not lend itself to any fixed numerical guideposts’.44 In support of its compliment of UTA’s ‘sensitivity’ to differences among minorities, the court of appeals observed that UTA’s decision to reintroduce race as a factor in admissions decisions ‘does not indicate critical mass was achieved’.45 African-American and Hispanic students, for example, are not properly interchangeable for purposes of determining critical mass, and ‘a university must be sensitive to important distinctions within these broad groups’.46

IV Analysis

Whether the Supreme Court’s decision in Fisher will bring an end to race-conscious admissions policies in higher education depends on the interpretation and application of Bakke and Grutter. Justice Powell in Bakke had observed that even though the University’s race-based policies were subject to strict scrutiny, ‘obtaining the educational benefits that flow from an ethnically diverse student body’,47 could constitute ‘a substantial interest that legitimately may be served by a properly devised admission program involving the competitive consideration of race and ethnic origin’.48

The Supreme Court’s fragmented decision in Grutter49 applying the Equal Protection Clause to higher education strikes at the definition, implementation and enforcement of policies regarding diversity. The extent to which diversity is a compelling interest and affirmative action is the vehicle for furthering that interest rests in the Fisher Supreme Court’s interpretation of Grutter. When one considers that four dissenting members of the Supreme Court in Grutter believe that ‘the way to stop discrimination on the basis of race is to stop discriminating on the basis of race’,50 the stage would seem to be set for a basic redefinition of university admissions policies.

The Supreme Court in Fisher has two options in addressing diversity and affirmative action in light of Grutter: the Court in Fisher could invalidate the Court’s decision in Grutter, in effect

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adopting the reasoning of the dissent in Grutter; or, the Court could uphold the approach to diversity in Grutter but find that Fisher had overstepped the boundaries set in Grutter. In either case, the dissenting opinions in Grutter will likely become the touchstones determining the outcome in Fisher. At stake will be the viability of the majority decision in Grutter upholding race-conscious admissions policies based on judicial deference, minority representation, minority critical mass.

A Judicial DeferenceThe majority in Grutter deferred to the ‘[University of Michigan] Law School’s educational

judgment that ... diversity is essential to its educational mission ... [with the concomitant recognition that] the Law School ... in the context of higher education, [has] a compelling state interest in student body diversity’.51 The Court found support for its deference in two lines of cases. One line of support, buttressed by Regents o f University o f Michigan v Ewing (‘ E w in g f2 and Board o f Curators o f University o f Missouri v Horowitz (‘Horowitz’),53 was cited to undergird the academic freedom tradition ‘of giving a degree of deference to a university’s academic decisions’.54 The second line of support, grounded in First Amendment cases, Sweezy v New Hampshire (‘Sweezy’),55 Shelton v Tucker (‘Shelton ’),56 and Keyishian v Board o f Regents o f University o f State o f New York (‘Keyishian’),57 was used to undergird the Grutter majority’s reliance on Justice Powell’s Bakke comment that ‘[t]he freedom of a university to make its own judgments as to education includes the selection of its student body’.58

The Court’s reliance on deference cases like Ewing and Horowitz to support the University of Michigan’s decision about diversity is problematic. The Grutter majority’s use of deference, one can argue, is dysfunctional in that the Court has separated deference to the Law School’s decision regarding diversity from the Equal Protection Clause’s prohibition of racial discrimination.

The Grutter majority’s reliance on Sweezy and Keyishian to support its claim of compelling interest seemed to break down as well. In Sweezy and Keyishian, the Constitution’s First and Fourteenth Amendment protections acted as restraints on what government can do to faculty (and students) at universities,59 while, in Grutter, the Court effectively eliminated the racial discrimination equal protection constraint regarding what a public university can do to nonminority students.

Justice Thomas pressed the Grutter majority’s analysis of diversity further with his prophesy that ‘[c]ontained within today’s majority opinion is the seed of a new constitutional justification for ... racial segregation’.60 The Grutter majority, having effectively stripped Justice Powell’s use of strict scrutiny from Equal Protection Clause analysis, presses a decision that, for Justice Thomas, has the potential to destroy confidence in the Constitution and in the idea of equality.61

B Minority RepresentationThe University of Michigan Law School is ‘[one of] the Nation’s top law schools ...

receiving] more than 3,500 applications each year for a class of around 350 students’.62 While Justice Thomas had no problem with a law school seeking an elite status, he lamented that

[t]he silence in this case is deafening to those of us who view higher education’s purpose as imparting knowledge and skills to students, rather than a communal, rubber-stamp, credentialing process. The Law School is not looking for those students who, despite a lower LSAT score or undergraduate grade point average, will succeed in the study of law.

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The Law School seeks only a facade—it is sufficient that the class looks right, even if it does not perform right.63

Justice Scalia, in his acerbic dissent, opined that the Law School’s ‘educational benefit’ of ‘cross-racial understanding’ and ‘better preparation of students for an increasingly diverse workforce and society’ is neither relevant nor helpful because the law school transcript will not list a course, ‘Works and Plays Well with Others’, nor will state bar examiners ask the student to ‘Describe in 500 words or less your cross-racial understandings’.64

Not able to find any justification for the majority’s deference to the Law School’s admissions program so bereft of evidentiary support, Justice Thomas exposes what he perceives to be the fatal flaw in pursuing diversity in a racially discriminatory manner, a pursuit that achieves only ‘classroom aesthetics’.65 The Law School is not looking for those students who, despite a lower LSAT score or undergraduate grade point average, will succeed in the study of law. While the law school is free to use the LSAT and whatever merit-based standards that it desires, it must accept the constitutional burdens that come with such a decision. ‘What the Equal Protection Clause forbids, but the Court today allows, is the use of these standards hand-in-hand with racial discrimination’.66

By upholding the Law School’s marginalising of racial preference admissions program to a supportive role in maintaining its elite law school status, Justice Thomas believed that the majority has effectively reduced the definition of racial discrimination to, ‘we know it [racial discrimination] when we see it’,67 a highly subjective and ‘contextualized’ definition that ‘is not capable of judicial application’.68

C Minority Critical MassChief Justice Rehnquist observed that the University of Michigan Law School’s admission

program, with student admissions between 1995 and 2000 ranging from 1,130 to 1,310, contained minority enrolments ranges of 91 to 108 African-Americans, 47 to 56 Hispanics, and 13 to 19 Native-Americans. However, if, as the Law School claimed, its critical mass ‘mean[t] a sufficient number of underrepresented minority students to achieve several objectives’, the Chief Justice queried ‘why that concept [was] applied differently among the three underrepresented minority groups’.69 Because the Law School ‘never offered any race-specific arguments explaining why significantly more individuals from one underrepresented minority groups are needed in order to achieve “critical mass”’ he concluded that the Law School’s ‘disparate admissions practices with respect to [Native-Americans and Hispanics] demonstrate^] ... is simply a sham’.70

Justice Scalia, in his Grutter dissenting opinion, predicts areas of future litigation in this area. He queries whether courts will, or should, defer to universities’ claims that, in pursuance of their educational goal of diversity, they can engage in what he refers to as ‘tribalism and racial segregation’71 on campus. In particular, he suggests possible challenges to ‘minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation housing-opportunities’.72 Implicit in any such challenges would have to be determinations as to how a minority group should be defined, what equality of recognition among minorities should mean, and how the university should allocate resources among the various minority groups. In addition, at stake in the future could be the claims of ‘minority groups intentionally short changed in the institution’s composition of its generic minority “critical mass”’.73 Assuming that critical mass is now the new operative concept for

D iversity, A ffirmative A ction, and H igher Education 13

university admissions, Justice Scalia suggests that future litigation may challenge whether ‘the institution’s racial preferences have gone below or above ... critical mass’.74

D Impact o f Grutter Dissenting Opinions on the Court’s Decision in FisherOnce can argue that the UTA plan has gone even further than that of the University

of Michigan in Grutter by seeking to remedy a diversity deficit in individual classes with undergraduate programs and majors in areas such as Engineering, Math, and physics, something that the University of Michigan’s Law School, where its classes are reflective of the larger student body, never had to consider. In essence, a university cannot argue for diversity in individual programs or individual classes unless the university can produce evidence that diversity will affect the experience of all students in the program.

A stumbling block for universities likely to come from Fisher is that a valid diversity claim will depend on universities first having demonstrated that all race neutral alternatives have been considered. In effect, any race-conscious decisions will be enforceable only after a university has exhausted all race-neutral admissions alternatives.

Based on their dissents in Grutter and Parents'Involved, Chief Justice Roberts and Justices Scalia, Thomas, and Alito will probably vote to overturn Grutter leaving to Justice Kennedy his frequent role as the swing vote. Justice Kennedy stated in his Grutter dissent that ‘[preferment by race, when resorted to by the State, can be the most divisive of all policies, containing with it the potential to destroy confidence in the Constitution and idea of equality’.75

Such, of course, does not address the ultimate question whether some form of affirmative action needs to survive to assure that non-represented minorities will be represented in public universities.

In her insightful article on affirmative action, Margaret Radin applied the concept of rhetorical capture to affirmative action in employment to mean that, even though a person may profess a need for affirmative action, the rhetoric actually used ‘assume[s] that job candidates who were not white males were inferior’.76 Radin’s ‘thumb on the scale’77 analysis as applied to higher education admissions would suggest the same result, namely that those persons admitted pursuant to a race-conscious policy would be viewed as otherwise unqualified. The problem, of course, with such a conclusion is that it assumes that the ground is level for all persons seeking admission. One can argue that non-race categories that were part of UTA’s admission standards, such as ‘socioeconomic status or the applicant and his or her high school’, the applicant’s family status and family responsibilities, the applicant’s standardized test score compared to the average of her high school,78 may well be the way to address the needs of underrepresented student populations without having to wrestle with the compelling interest and strict scrutiny standards.

The notion that a fixed period of time (for example Justice O’Connor’s 50 years) is sufficient to isolate majority students in the present from the impact of race- conscious decisions in the past ignores, as reflected in Fisher, that remediation of past responsibility is difficult to quantify. In the meantime, Fisher indicates that states can establish admission requirements for higher education institutions that are race-neutral but which have the effect of perpetuating the white majority while reducing the number of underrepresented populations. Indeed, one author has suggested that higher education institutions ‘redressing disadvantage’ by adding ‘plus’ points for a disadvantage have more to offer than adding ‘plus’ points for ‘alumni or legacy admissions’ that become simply ‘an attribute of privilege and advantage’.79

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V Conclusion

The impact of Grutter on university admissions in Fisher is difficult to predict. At one end of an admissions continuum, one can argue that Grutter did nothing more than reinforce Bakke. Universities with selective admissions policies will continue to do what they have probably done since Bakke, namely use race as a factor to admit minorities whose record indicates that they can successfully do the work. At the other end though is the use of minority status for racial balancing, which still appears to be unconstitutional. Despite the Grutter majority’s efforts to place the Law School’s admissions program within Bakke’s race-as-a-factor approach, the arguments of the Grutter dissenters suggest otherwise. Whether the Law School’s affirmative action admissions program was only a veiled form of impermissible racial balancing under strict scrutiny should have been the critical line for debate between the majority and dissenting Justices.

A remaining open question is what the Court means by diversity. In seeking to apply Justice O’Connor’s amorphous concepts, it remains to be seen whether diversity is limited to race or can be applied to other factors such as socio-economic status for poor inner city or Appalachian type students and ethnicity (perhaps better stated as national origin) other than for students of colour. Admissions aside, equally unclear is whether diversity can be employed to assist in ensuring a multiplicity of perspectives not only in a student body but also, and perhaps especially, among faculty as they seek to bring individuals with a wider range of perspectives into their learning communities. Such an approach assumes, of course, that difference means diversity.

Unfortunately, the contest between the two sets of opinions in Grutter was never adequately joined because the majority obscured the issue with its misuse of deference. By deferring to the Law School’s educational diversity goals, the Court avoided having to determine whether the Law School’s program would pass strict scrutiny. However, deference is no answer to the constitutional prohibition of race discrimination under equal protection. Rather than address directly the Law School’s diversity goals in light of strict scrutiny, the Court has opened what Justice Thomas perceives as a future Pandora’s Box. With the Court’s new definition of deference, the Court appears to give university administrators unbounded optimism to think that the Equal Protection Clause places little, in any, restriction on universities setting their diversity goals.

Justice Scalia is correct in Grutter when he prophesises a future rich in new litigation. In Grutter, the Court missed an opportunity to provide clear guidance on affirmative action. The Grutter majority’s decision has left the legal shoreline littered with judicial detritus. Although Brown is a K-12 case, nothing in post-Brown decisions suggests that the case has lost its constitutional lustre in addressing race-conscious decision making. Even if the consideration of race, as in Fisher, ‘is a factor of a factor of a factor of a factor’, the existence of even a remote factor, not the frequency of its implementation, would seem to be sufficient to invoke a constitutional challenge. To leave to higher education institutions the determination of their own educational benefit for purposes of a compelling interest essentially ignores altogether the strict scrutiny test. Hopefully, the Supreme Court in Fisher will seize the opportunity to draw a clear line in the sand. Lower federal courts have deserved far better from the Supreme Court than they were served in Grutter; instead of a clear window through which they can view affirmative action, they have been left only with a ‘glass darkly’.80

Keywords: diversity; affirmative action; higher education; discrimination; equal protection.

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Endnotes

1 US Constitution, Amend XIV. In addition to the Equal Protection Clause, the Fourteenth Amendment has a due process clause protecting rights grounded in life, liberty, and property. However, the Fifth Amendment to the Constitution, while it has a comparable provision to the Fourteenth Amendment prohibiting life, liberty and property without due process of law, contains no explicit protection of equal protection of the law. US Constitution, amend 5.

2 Brown v Board o f Education, 347 US 483 (1954). The Supreme Court prior to its Brown decision had already begun making inroads into prohibiting discrimination under the Equal Protection Clause, see Sweat v Painter, 339 US 629 (1950) (holding that a black student was entitled to admission to the leading law school in the state reserved for white students, finding that a law school purportedly set up for black students was not equal in facilities or resources); McLaurin v Oklahoma State Regents for Higher Education 339 US 637 (1950) (black student who was admitted to state supported graduate school for purpose of pursuing studies leading to a doctorate in education who was assigned to a seat in classroom in a row specified for coloured students, was assigned to a table in library, and assigned to a special table in cafeteria was deprived of a personal and present right to equal protection of the laws).

3 Plessy v Ferguson, 163 US 537 (1896) (holding that a Louisiana statute requiring railroads carrying passengers to provide equal but separate accommodations for white or coloured races was not unconstitutional).

4 Brown, 347 US 483, 493 (1954).5 Ibid 495.6 Green v County School Board, 391 US 430, 437-38 (1968).7 See Martha Minow, In Brown’s Wake: Legacies o f America’s Educational Landmark (2010) 7.8 Board o f Education o f Oklahoma City Public Schools, Independent School District No. 89 v Dowell,

498 US 237, 250 (1991).9 Freeman v Pitts, 503 US 467, 493-94 (1992).10 Ibid 494.11 Note, ‘Fourteenth Amendment—School Desegregation—Ninth Circuit requires Continued Federal

Oversight of School District.—Fisher v Tucson Unified School District, 652 F.3d 1131 (9th Cir. 2011)’, 125 Harvard Law Review 1530, 1535 (2012). See also, Linda Darling-Hammond, ‘Educational Quality and Equality: What It Will Take to Leave No Child Behind’, in Brian D. Smedley & Alan Jenkins (eds), All Things Being Equal (2007) 39, 55-59.

12 Parents Involved in Community Schools v Seattle School District No. 1 (‘Parents Involved’) and McFarland v Jefferson County Public Schools (‘McFarland’), 551 US 701 (2007) (although the two cases had risen in the Ninth (Parents Involved) and Sixth (McFarland) federal circuits, the Supreme Court combined them in its review).

13 438 US 265 (1978).14 539 US 244 (2003).15 539 US 306 (2003).16 Fisher v University o f Texas at Austin, 645 F Supp 2d 587 (WD Tex, 2009), affirmed Fisher v University

o f Texas at Austin, 631 F 3d 213 (5th Cir, 2011), certiorari granted Fisher v University o f Texas at Austin, 132 S Ct 1536 (2012).

17 Justice Powell authored the majority opinion. Justices Brennan, White, Marshall and Blackmun filed an opinion concurring in the judgment in part and dissenting. Justices White, Marshall, and Blackmun each filed a separate opinion. Justice Stevens concurred in the judgment in part and dissented in part and filed an opinion in which Chief Justice Burger and Justices Stewart and Rehnquist joined.

18 Grutter, 539 US 306, 307 (2003).19 Ibid 313.20 Ibid 314.21 Ibid 315.

16 Ralph D. Mawdsley

22 Justices Stevens and Souter dissented as to the lack of jurisdiction of the plaintiffs to seek injunctive relief, asserting that the plaintiffs had presented no evidence that they intended to reapply to the University of Michigan or that they would be denied mission under current admission standards. See Gratz, 539 US 244, 282-92 (2003).

23 For example, Justice Powell in Bakke discusses at length the Harvard College admissions policy that eschews quotas for selection but determines the difference that individual applicants will bring to the Harvard experience. Bakke, 438 US 265, 316-17 (1978). In addition, Justice Powell disclaimed the position of the University of California that race-based quotas would be more likely to graduate doctors who would deliver medical services to state communities that were underserved. It may be assumed that in some situations a State’s interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a suspect classification. But there is virtually no evidence in the record indicating that petitioner’s special admissions program is either needed or geared to promote that goal. Ibid 310.

24 Grutter, 539 US 306, 325 (2003).25 Ibid 343.26 Fisher v University o f Texas at Austin, 645 F Supp 2d 587 (WD Tex 2009), affirmed 631 F3d 213 (5th

Cir, 2011), certiorari granted 132 S Ct 1536 (Feb 12, 2012).27 Texas Education Code s 51.803.28 78 F 3d 932 (5th Cir, 1996).29 Texas Attorney General Opinion LO-97-001.30 Fisher, 645 F Supp 2d 587, 592-93 (WD Tex 2009).31 Ibid 593.32 Fisher, 631 F3d 213, 227 (5th Cir, 2011).33 Ibid.34 See Ibid 228.35 Ibid.36 Ibid.37 Ibid.38 Ibid.39 Ibid 609, citing Grutter, 539 US 306 (2003) at 337 (‘The Law School’s current admissions program

considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race.’).

40 Ibid 610, citing to Parents Involved, 551 US 701 (2007) at 735 (‘the minimal impact of the districts’ racial classifications on school enrolment casts doubt on the necessity of using racial classifications’). Since UT’s admissions policy does not make race ‘the’ factor nor rely on racial classifications in a ‘nonindividualised mechanical’ way but continues to use race-neutral alternatives in addition to its consideration of race, ‘the mere fact that UT’s consideration of race does not have a large effect on diversity, due largely to the overwhelming presence of the Top Ten Percent law, does not mean the policy fails to further UT’s compelling interest or is in some way not narrowly tailored for that goal.’: ibid 611.

41 Ibid (citing to Grutter, 539 US US 306 (2003) at 339: ‘Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative.’).

42 Ibid 612 (quoting Grutter, 539 US US 306 (2003) at 342).43 Fisher, 631 F3d 213, 240 (5th Cir, 2011).44 Ibid 245.45 Ibid.46 Ibid. The Fifth Circuit in Fisher looked for support to Parents Involved where ‘the Supreme Court

specifically faulted two school districts for employing “only a limited notion of diversity”’ that lumped together very different racial groups’ that, at one school labeled students as ‘white and nonwhite’ while at another school labeled students as ‘black’ and ‘other’. Parents Involved, 551 US 701 (2007) at 712, 723.

47 Bakke, 438 US 265, 306 (1978).

D iversity, A ffirmative A ction, and H igher Education 17

48 Ibid 320.49 Justice O’Connor delivered the opinion of the court, in which Justices Stevens, Souter, Ginsberg,

and Breyer joined, and in which Justices Scalia and Thomas joined in part insofar as it is consistent with the views expressed in part vii of the opinion of Justice Thomas. Justice Ginsburg, filed a concurring opinion, in which Justice Breyer joined. Justice Scalia filed an opinion concurring in part and dissenting in part, in which Justice Thomas joined. Justice Thomas filed an opinion concurring in part and dissenting in part, in which Justice Scalia joined as to parts i-vii. Chief Justice Rehnquist filed a dissenting opinion, in which Justices Scalia, Kennedy, and Thomas joined. Justice Kennedy filed a dissenting opinion.

50 Parents Involved, 551 US 701 (2007) at 748.51 Grutter, 539 US 306, 325 (2003).52 474 US 214 (1985) (a unanimous Court upheld a medical college’s dismissal of a student from a special

six-year program after he failed the NBME Part I exam at the end of his second year, finding that, even assuming that the student had a substantive due process right regarding his dismissal after only two years, the college’s decision was not ‘a substantial departure from accepted academic norms’): at 225.

53 435 US 78 (1978) (a medical student’s dismissal in her last semester of medical school, despite several opportunities to correct deficiencies was not arbitrary or capricious so as to deprive her of substantive due process).

54 Grutter, 539 US 306, 328 (2003).55 354 US 234 (1957) (Court reversed contempt citation for university professor who had refused to

answer state attorney general questions, regarding the content of lectures at the university, pursuant to state subversive activities statute; in reversing the contempt citation, the majority reasoned that the attorney general’s questions had violated the faculty member’s rights of ‘academic freedom and political expression’ whereby ‘[t]eachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding’): Ibid 250.

56 364 US 479, 487 (1960) (Court held that state statute compelling every teacher as a condition of employment in state-supported school or college, to file annually an affidavit listing without limitation every organisation to which he has belonged or regularly contributed within the preceding five years, was unconstitutional as to teachers, who were hired on a year-to-year basis and were not covered by a civil service system and who had no job security beyond the end of each school year; the Court reasoned that ‘to compel a teacher to disclose his every associational tie is to impair that teacher’s right of free association, a right closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society’), ibid 486.

57 385 US 589 (1967) (Court invalidated state statutes barring from employment in public universities of any person wilfully advocating or teaching doctrine of forcible overthrow of government as violative on the ground of vagueness because the statutes could include mere knowing membership without intent to overthrow government; ‘academic freedom ... is ... a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom’.): ibid 603.

58 Bakke, 438 US at 312, quoted at, Grutter, 539 US at 329.59 Beyond the scope of this article is the question as to whether academic freedom belongs to the university

or the faculty member, or both. For an insightful discussion of this topic, see Todd DeMitchell, ‘Academic Freedom—Whose Rights? The Professor’s or the University’s?’ (2002) 174 Education Law Reporter 1.

60 Grutter, 539 US at 365-66.61 Ibid 388.62 Ibid 312.63 Ibid 372.64 Ibid 347 (Scalia, J, dissenting).65 Ibid 357 (Thomas, J, dissenting).66 Ibid 370.

18 Ralph D. Mawdsley

67 One is reminded of Justice Stewart’s oft-quoted remark in Jacobellis v State o f Ohio, 378 US 184 (1964), where, in voting to reverse the criminal conviction of a movie house owner for showing an allegedly obscene film he concluded that, although he could not intelligibly define what is embraced within the term ‘hard-core pornography’ as applied to the case before him, he could say of such pornography, ‘I know it when I see it and the motion picture involved in this case is not that’. Ibid 197 (Stewart, J, concurring).

68 Grutter, 539 US at 357.69 Ibid 379-80 (Rehnquist, CJ, dissenting).70 Ibid 383. (The Chief Justice presents evidence of what appears to be admissions practices skewed in

favor of African-Americans. Of 67 minority applicants denied admission between 1995 and 2000, 56 were Hispanic. Ten of twelve Hispanics with LSAT scores between 159-160 and 3.00 GPAs were rejected during one year while all 12 African-Americans were admitted. Likewise, during the same year, only one Hispanic out of 16 who had LSAT scores of between 151 and 153 were admitted, while 14 of 23 African-Americans were admitted).

71 Ibid 349 (Scalia J, dissenting).72 Ibid.73 Ibid.74 Ibid.75 Ibid 388 (Kennedy J dissenting).76 Margaret Jane Radin, ‘Rhetorical Capture’ (2012) 54 Arizona Law Review 457, 458. The author

observed that many people who have liberal intentions talk about putting a thumb on the scale for hiring minority candidates.By speaking of ‘thumb on the scale’, these speakers were tacitly assuming, and thereby reinforcing, the very distinctions that affirmative action was supposed to remedy. Many of the speakers who talked about putting a ‘thumb on the scale’ considered themselves believers in equality and supporters of affirmative action. They were probably not deliberate in their rhetoric and its implications; rather, they were reflecting current social practice that had not been subjected to serious thought. They were exhibiting a form of rhetorical capture. Ibid 458-59.

77 Ibid.78 Fisher, 631 F 3d at 228.79 Michael Olivas, ‘Governing Badly: Theory and Practice of Bad Ideas in College Decision Making’

(2012) 87 Indiana Law Journal 951, 956.80 I Corinthians 13:12 (For now we see through a glass darkly ...).

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