Of Diversity & Legitimacy
Today the Supreme Court will hear oral argument in Fisher v. University of Texas at Austin, et al., the first case the Court has heard on affirmative action in university admissions since the 2003 cases of Gratz and Grutter v. Bollinger. The Court is likely to strike down UT’s affirmative action program because the University’s arguments have relied too heavily on past precedent. To paraphrase Steve Jobs paraphrasing Wayne Gretzky, the University skated to where the puck has been, and not where it is going to be.
Of course, there is the brutal math of the Court. Sandra Day O’Connor, the swing vote upholding affirmative action in Grutter, has been replaced by Justice Alito, who is a more reliable opponent of affirmative action. And while Justice Kennedy has written that race can be a factor, he has never voted to uphold an affirmative action or desegregation program. The University of Texas has not offered Kennedy a compelling reason to deviate from his traditional stance that existing programs use race in too clumsy a fashion to pass constitutional muster. But ironically in Fisher, this will not be because the University’s program is too clumsy (that is, not “narrowly tailored”). It will because the Supreme Court will reject diversity as a sufficiently compelling interest to justify disparate treatment on the basis of race.
Most laws and policies treat certain people (or groups of people) differently in some way. Taxes treat people with money differently than people without money; they treat people who make their money through investments differently than those who earn salaries or wages, etc. Social Security pays retirement benefits to seniors, but not to the 30-year-old ne’er-do-well. Public universities treat applicants with higher standardized test scores differently than those with lower standardized test scores. And for most laws and policies, the government must only offer a “rational basis” for that different treatment if it is challenged in court. Essentially, the government must only show that it has a reasonable justification for taxing investments differently than wages, or paying retirement benefits to seniors but not youths, or admitting applicants with higher test scores. But for some ways that a government might treat certain people differently, it must offer better reasons for doing so. The classic example of “better reasons” is the “strict scrutiny” review that the courts subject the government to when it treats people differently on the basis of race.
To survive strict scrutiny, the government must demonstrate that it is pursuing a “compelling interest” and that the means it is using to pursue that “compelling interest” are “narrowly tailored” to achieve that interest. In the affirmative action context, and most successfully in Grutter, the government has stated that the compelling interest it is pursuing is diversity in higher education. Generally, the Supreme Court has generally accepted that diversity is a compelling interest, but the Court has held that a number of strategies for advancing diversity are not narrowly tailored and therefore unconstitutional violations of the guarantee of equal protection. Thus, while universities may consider race as a factor and seek a “critical mass” (as in Grutter), they may not use racial quotas (Bakke) or assign a set number of extra points to minority applicants on a points-based admissions scale (Gratz).
So what has UT-Austin done? By state law, the University must admit every Texas applicant that ranks in the top 10% of his or her high school class. This law typically fills 85% of the incoming class. For those applicants - like Fisher - who did not graduate in the top 10% (or whose schools do not rank students), the University engages in a complex system of evaluation, of which race is a factor. For the details, here is the University’s brief. The key is that UT’s system assigns no set advantage to minority status, and race is not decisive. Instead, UT simply considers it in the context of other socioeconomic factors that, in turn, guide the University’s evaluation of an applicant’s level of “personal achievement.” While Fisher in in her Brief argues that this is not narrowly tailored, it seems like this system was designed with Gratz and Grutter in mind. That means the case will turn, as Fisher’s brief emphasizes, on whether “diversity” is a compelling interest. The conservatives will strike down UT’s affirmative action program by arguing that “diversity” as UT has presented it is not compelling.
The government has offered many compelling reasons for affirmative action. In many contexts, the government has argued that it aimed to remedy historical or present discrimination against minorities. But in the higher education context, the government has increasingly relied upon diversity. From Bakke to Grutter, our nation’s public universities have marshaled evidence demonstrating that diversity has benefits in the classroom and furthers their mission to cultivate the country’s next generation of citizens and leaders. In the public sphere, conservatives have typically made two arguments: first, that the universities overvalue racial diversity, typically in some vain effort at shallow, we-are-the-world multiculturalism (what Justice Thomas once called “classroom aesthetics” and “hypersensitivity to elite sensibilities”); and second, that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” John Roberts’ famous admonition that affirmative action is self-defeating. In short, conservatives argue that racial diversity is not a compelling interest. Instead of confronting this argument head on, UT relied on its (admittedly strong) argument that its program honors past precedent such as Grutter. But, to defeat Fisher’s (the conservatives’) argument, UT should have more carefully traced the meaning of diversity and located within it a different compelling interest - that of democratic legitimacy.
The interest in diversity has changed from Bakke to Grutter. In Bakke, Justice Powell’s concurring opinion described diversity as “the atmosphere of speculation, experiment and creation” essential to a quality higher education. He also endorsed the idea that diversity enhances the educational experience in the professional schools, by preparing doctors to heal a “heterogeneous population” and lawyers to represent individuals and institutions in a diverse society. In Parents Involved in Community Schools v. Seattle School District No. 1 et al., Justice Kennedy argued that diversity spares students from suffering the “racial isolation” of being the only student of one’s ethnicity or race in the classroom. By the time we get to Grutter, the Court simply touches upon these arguments. Instead, Justice O’Connor’s controlling opinion discusses 1) mutual understanding amongst the races; 2) better preparation for students in an increasingly globalized future; 3) diversity diffusing the knowledge of the university more widely into communities; and 4) diversity enhancing the legitimacy of society’s leadership in the eyes of its citizens.
Most public comment about O’Connor’s opinion focused on her statement that “We expect that twenty-five years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” But the statement that UT’s lawyers should have focused on is this: “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” This statement - that the the government’s compelling interest is democratic legitimacy, not “classroom aesthetics” - is more theoretically robust than diversity for its own sake. And its grandeur might have been more attractive to Justice Kennedy, who historically has had a penchant for abstract pronouncements on liberty (what conservative critic Ed Whelan called “meta-nonsense”). Instead, UT’s only mention of “legitimacy” in its Brief is a discussion of when it is appropriate to overturn precedent - which is exactly what the Supreme Court is going to do.
Democratic legitimacy is the strongest and truest argument for continued affirmative action in the United States. Legitimacy is what would be lost if affirmative action were eliminated. Attendance at a top university is increasingly the road to advancement and leadership in society. It follows that if our nation’s top universities see huge drops in minority enrollment, that the paths of leadership that come after will see similarly limited minority participation. An eloquent explanation of the importance of democratic legitimacy comes from an amicus brief submitted by retired military officers in support of the University of Michigan Law School’s affirmative action program in Grutter. The brief describes how “unit cohesion,” a “shared sense of mission” and “an unimpeded flow of information through the chain of command” were all hindered by a military whose enlisted men were of all races but whose officer corps was almost exclusively white. The brief described how these weaknesses endangered missions and troop lives and fostered resentments and a lack of confidence in the military, and required immediate and - well, affirmative - action to resolve these issues - to give minority soldiers a stake in the mission, a reason to believe their lives mattered, and that their careers could flourish within the military. As the officers’ brief put it: “In a highly diverse society, the public, including minority citizens, must have confidence in the integrity of public institutions, particularly those educational institutions that provide the training, education and status necessary to achieve prosperity and power in America.”
American society is more than its military, but here, the analogy is apt. Unit cohesion, a shared sense of mission, and an unimpeded flow of information - democratic legitimacy - this, and not simply the United Colors of Benetton, is what we will mourn if the Supreme Court strikes down the University of Texas’s affirmative action program.