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The Supreme Court’s Diversity Dilemma
Justice Antonin Scalia’s musings from the bench about whether affirmative action might hurt rather than help African-American students received most of the attention following the Supreme Court argument in the University of Texas case earlier this month. By contrast, a question posed to the university’s lawyer by Chief Justice John G. Roberts Jr. was largely overlooked. “What unique perspective does a minority student bring to a physics class?” the chief justice wanted to know.
An Op-Ed essay by a black astrophysicist, published in The Times last week under the headline “Being Black in Physics Class,” homed in on the chief justice’s question and has lingered in my mind. “Black students come to the physics classroom for the same reason white students do: they love physics and want to know more,” Jedidah C. Isler wrote. “Do we require that white students justify their presence in the classroom? Do we need them to bring something other than their interest?”
Given the Supreme Court’s contorted precedents on the role of race in higher education, the answer to Dr. Isler’s question is actually unclear.
The chief justice’s questions often go to the heart of the matter, and this one was no exception. The reference, clearly, was to the “diversity” argument at the center of Fisher v. University of Texas, the challenge to affirmative action that is now before the court for the second time in three years. The chief justice no doubt meant his query to Gregory G. Garre, a former United States Solicitor General now representing the University of Texas, as a kind of reductio ad absurdum. “I’m just wondering what the benefits of diversity are in that situation,” he went on to observe, radiating skepticism about the university’s invocation of diversity as a rationale for taking account of an applicant’s race.
Here’s the problem, as Chief Justice Roberts well knows: under the court’s precedents, diversity isn’t just one rationale for creating or maintaining a racially integrated student body. It is the only rationale. Ever since the Bakke case nearly four decades ago, no other reason for affirmative action has passed constitutional muster in the view of the Supreme Court’s majority: not equalizing opportunity, not redressing past wrongs (the flagship Austin campus was formally all-white until 1956 and functionally segregated long after that) or opening previously closed doors. Only “diversity.”
But what does diversity mean? If diversity is the only acceptable rationale for taking account of race, as the court insists, then what is the rationale for diversity? It must be something more than the reductive image the chief justice served up, but what exactly?
The fact is the court’s understanding of diversity has shifted confusingly over time. Justice Lewis F. Powell Jr., the member of the court who initially embraced diversity in his solitary opinion in the Bakke case, framed it as an element of a university’s academic freedom “to promote beneficial educational pluralism” by treating race as “simply one element — to be weighed fairly against other elements — in the selection process” along with “other qualifications deemed important.” These might include “exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor,” among other attributes.
(Justice Powell’s Bakke opinion is often described as a compromise between two four-justice factions with opposite views of the acceptability of the admissions plan at issue, a set-aside for minority applicants of 16 out of 100 first-year places at the medical school at the University of California at Davis. But what Justice Powell’s opinion, which became the holding of the case, actually reflected was the absence of compromise. When the justices began their consideration of the case, he expressed his view that race could be a “plus factor” but could not be subject to a fixed quota, and he stuck to that position throughout.)
Civil rights advocates breathed a sigh of relief when the court issued the Bakke decision in June 1978: Affirmative action, re-engineered along the lines of the Harvard admissions plan that Justice Powell invoked with approval, could survive. Less visible those many years ago was the price that reliance on diversity exacted: It submerged the interests of the individual minority student into the university’s overall interest in sculpting the incoming class it wanted.
Justice Powell was bluntly dismissive of any claim that the exclusion of African-Americans from access to medical school in the past justified special consideration in the present. “The remedying of the effects of ‘societal discrimination,’” he warned, was “an amorphous concept of injury that may be ageless in its reach into the past.”
Twenty-five years later, another sigh of relief greeted the court’s decision in Grutter v. Bollinger, invoking diversity to uphold an admissions plan at the University of Michigan Law School in which applicants received “holistic” consideration of all their attributes, including race. Writing for the 5-to-4 majority, Justice Sandra Day O’Connor interpreted diversity more broadly than had the Bakke opinion. She described it as serving not only the university, which she said had a compelling interest in “obtaining the educational benefits that flow from a diverse student body,” but also society as a whole. “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry,” she wrote, “it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”
At the same time, Justice O’Connor made clear that she shared Justice Powell’s aversion to any rationale for affirmative action other than diversity. (And her successor, Justice Samuel A. Alito Jr., most likely doesn’t even buy diversity.) So while widening the court’s lens, the Michigan decision continued the court’s failure to train that lens on the specific interests of individual minority students. It’s an exaggeration, but not much of one, to point out that taking the court’s approach at face value, affirmative action serves every interest but theirs.
In writing the opening sentence of this column, I first began by referring to Justice Scalia’s musings about whether affirmative action “hurts those it is intended to benefit.” But I rewrote the sentence after considering that as a doctrinal matter, applicants who receive consideration under affirmative-action policies are not considered beneficiaries. Universities benefit, corporate America benefits (as a group of Fortune 100 companies tells the court in a brief in the current case) the military benefits (as a group of retired officers famously told the court in the Michigan case). Society as a whole benefits, as Justice O’Connor explained. It’s almost as if minority students do everyone a favor by showing up, but we can’t acknowledge that they themselves get anything out of the bargain.
This is strange, even perverse. It’s why there is no a clear answer to the questions Dr. Isler asked in her Op-Ed piece. It’s the result of the upside-down reinterpretation of equal-protection doctrine that conservatives on the Supreme Court and in American politics have engineered over the past decades. It’s been going on for so long that we have become accustomed to it. But step back as Professor Reva B. Siegel of Yale Law School did in an illuminating article in the Harvard Law Review and what comes into focus are “remarkable long-term shifts in judicial oversight of equal protection claims.” The court pays great deference to claims by members of the white majority to injury from race-conscious policies (Abigail Fisher, the disappointed University of Texas applicant whose appeal the court is hearing again, has long since graduated from another college, and under the ordinary rules of standing no longer even has a case). At the same time, the court requires members of minority groups to prove that disadvantageous official policies or practices reflect a purpose to discriminate, a very high bar to meet.
So now it is Texas (Texas!) that has to defend before this conservative Supreme Court its effort to admit minority students who will populate its flagship university’s various schools and departments in sufficient numbers to avoid the racial isolation of just one or two per classroom in certain programs, formerly a common scenario. The conservative United States Court of Appeals for the Fifth Circuit upheld the state’s approach. Three terms ago, the Supreme Court gave Texas a slap on the wrist and told the Fifth Circuit to look harder. Once again the Fifth Circuit ruled for Texas. Not content, the conservative justices insisted on giving the plaintiff another shot.
There was something riveting about the effort of Gregory Garre, the university’s lawyer, a star among conservative members of the Supreme Court bar and a former law clerk to Chief Justice William H. Rehnquist, to sell the university’s version of diversity to the openly hostile conservative justices. He pushed back when Justice Scalia described the university’s position as seeking diversity “class by class.”
“Your honor, that’s a caricature of the university’s interests here,” Mr. Garre said.
“It’s a caricature of the argument you’re making,” Justice Scalia replied.
This testy exchange, which followed closely on the chief justice’s question about physics class, was as freighted a moment as I can remember in a Supreme Court argument. (I wasn’t in the courtroom, but this colloquy jumped off the transcript page for me.) There was no denying the stakes in Act II of Fisher v. University of Texas. There is only a remote chance that the case will spell a formal end to affirmative action in university admissions: That ultimate question isn’t directly presented, and I don’t see Justice Anthony M. Kennedy taking that fateful step. But the justices face a crucial choice nonetheless: to keep the diversity door open or to further reduce the court’s equal protection jurisprudence to the caricature it is becoming.
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