Race, Affirmative Action, and the Law

by Randall Kennedy

  In recent years Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos and other minority students …

  In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are “admissible” and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer.40

  Powell admiringly observed that in such a program,

  race or ethnic background may be deemed a “plus” in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism.41

  This sort of program, Powell declared, “treats each applicant as an individual.” Hence,

  the applicant who loses out on the last available seat to another candidate receiving a “plus” on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications … did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.42

  Powell cites his Bakke opinion as the most important he produced during his tenure as a justice. It has been highly influential. It has served as a key blueprint for racial affirmative action in higher education. It is, alas, deeply flawed.

  Powell’s most consequential and regrettable misjudgment was his determining that remedying societal discrimination is an inadequate justification for racial affirmative action.c He briefly mentioned that the United States is “a Nation confronting a legacy of slavery and racial discrimination.”43 But his statement is cursory and appears to carry little weight in his analysis. Powell’s apparent lack of appreciation of the distinctive historical mistreatment of colored people, particularly blacks, is put into sharp relief by Justice Thurgood Marshall’s opinion, which set forth in detail and with feeling the burden of America’s racial past, starting with the Founding Fathers, who “made it plain that ‘we the people’ … did not include those whose skins were the wrong color.”44 Marshall recalled the status of Negroes in antebellum America as beings with “no rights which the white man was bound to respect,” and recalled, too, the disenfranchisement and segregation of Negroes after Reconstruction. “The combined actions and inactions of the State and Federal Governments,” he observed, “maintained Negroes in a position of legal inferiority for another century after the Civil War.”45 Marshall acknowledged the lineaments of racial hierarchy that continue to be reflected in every index of well-being from life expectancy to infant mortality to income to wealth to occupational attainment, noting that in the 1970s, while blacks accounted for around 11.5 percent of the population, they constituted only 1.2 percent of the lawyers and 2 percent of the physicians. “The relationship between those figures and the history of unequal treatment afforded to the Negro cannot be denied,” Marshall declared. “At every point from birth to death the impact of the past is reflected in the still disfavored position of the Negro.”46

  Marshall delivered a sobering, realistic portrayal of an America long ruled illegitimately by an ideology and practice of white supremacy. Powell, by contrast, obscured the reality of white supremacy—the wholesale monopolization of power, wealth, prestige, and influence by Caucasians—with his invocation of “a Nation of minorities” in which various religious and ethnic groups (Jews, Catholics, the Irish, et al.) have all had to face base prejudices. True, social prejudices of all sorts have afflicted a wide variety of groups throughout American history. But it is misleading to suggest that social prejudices have been equally persistent, confining, or damaging. Although whites of various sorts have encountered bigotry in America, only with respect to people of color has bigotry enlisted the force of formal state power in effectuating exclusion and subordination. Private parties told the white Irish, Jews, and Catholics to “Stay out!” But, at least among residents, colored people are the only ones who have been told to “Stay out” by dint of law. White ethnics have been sadly mistreated. In contrast, however, to African Americans, Asian Americans, and Native Americans, white ethnics never had to contend with the peculiarly demeaning force of removal, enslavement, segregation, ineligibility for naturalization, prohibitions on land ownership, and antimiscegenation statutes.

  Justice Powell contended that remedying societal discrimination did not warrant being deemed a “compelling justification.” His position would be easier to swallow if he had, at any point, set forth the indicia that determine what is “compelling.” He made no such offering. Justice Powell dismissed societal discrimination as “amorphous.” Yet he embraced “diversity” as a compelling justification for racial selectivity. Why should anyone be persuaded that the latter is weightier and more urgent than the former? As Professor Vincent Blasi asks, with appropriate skepticism, “Can there be any validity to a conclusion … that a state may make race-conscious decisions regarding university admissions in order to enrich its academic dialogue, but not injustices of three centuries?”47

  In the course of making the case for “diversity,” Powell averred that “the atmosphere of ‘speculation, experiment and creation’ … is widely believed to be promoted by a diverse student body.” Notice that he did not say that diversity actually enriches the collegiate atmosphere of speculation, experiment and creation. He only said that those benefits are “widely believed” to be promoted by diversity—hardly a foolproof recommendation, given the number of erroneous propositions that are “widely believed” to be true. To substantiate his assertion of a wide belief in the value of diversity, Powell cited one person—the formidable then-president of Princeton University, William G. Bowen. Powell quoted Bowen declaring that

  a good deal of learning occurs informally. It occurs through interactions among students of both sexes, of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences.48

  This statement supports the assertion that educational benefit is derived from a diverse student body. But Bowen went on to remark, in a passage also quoted by Powell, that “in the nature of things, it is hard to know how, and when, and even if, this informal ‘learning through diversity’ actually occurs. It does not occur for everyone.”49 That attaining “diversity” could be deemed by Justice Powell to be a compelling justification on the basis of such a fragmentary, anecdotal, and tentative record should be disturbing.

  It is not at all clear that Justice Powell’s “diversity” is less amorphous and more compelling than the aim to remedy societal discrimination. After all, to repeat Bowen’s concession: in the nature of things, it is hard to know how, and when, and even if “learning through diversity” actually occurs. The diversity rationale hardly seems more solid as a basis for racial affirmative action than seeking to rectify societal discrimination. It isn’t. Powell simply treated it more deferentially. He applied a searching gaze to the societal-discrimination justification but a much less demanding eye to the diversity justification, even though he
claimed to subject both to the same exacting standard of strict scrutiny.

  Justice Powell, as we have seen, rejected societal discrimination as a suitable justification for racial selectivity in university admissions. However, as Professors Kenneth Karst and Harold Horowitz recognized decades ago, “underlying Justice Powell’s approach is the unspoken assumption that the history of racial discrimination in this country inevitably makes race a valid consideration in the diversity formula.”50 Numerous observers have asked why—if “genuine diversity” encompasses all sorts of potentially instructive differences—racial difference, or, more specifically, racial difference in a colored skin, seems always to be an especially important factor in university admissions. The reason is that it is “the history of racial subordination, above all, that makes race socially significant.”51 When Harvard alludes to a black student bringing to the school something that a white person cannot offer, it is referring, primarily, to that student bringing “an inheritance from past societal discrimination.”52 Despite its formal packaging, Harvard’s diversity rationale was thoroughly shaped by a remedial purpose. This is true to such an extent that some observers see the diversity justification as largely an elaborate pretext meant to cover the real aim of Harvard’s program and the many others like it, an aim that Powell invalidated and thus drove underground—namely, the aim to remedy societal discrimination.

  Powell’s astute biographer, Professor John Jeffries, argues that one reason the justice eschewed the societal-discrimination rationale is that he saw “little prospect [that that] rationale would place any meaningful limit on the duration of such preferences.”53 According to Jeffries, “Powell thought of affirmative action as a transition, a short-term departure from the ideal of color-blindness justified only by pressing necessity. Allowing minority set-asides to continue until all effects of past societal discrimination had been eliminated might mean they would last forever.” It is hard to see, however, how the diversity rationale addresses Powell’s anxiety over duration. Presumably, universities will always want to obtain the “educational pluralism” said to stem from diverse student bodies. If that is so, the diversity rationale could be used as a predicate for affirmative action indefinitely. As George Will observes, “preferences as recompense for past discrimination must eventually become implausible, but the diversity rationale for preferences never expires.”54

  Although Bakke is formally one case, in actuality it is two: the appeal brought by the University of California–Davis and the shadow appeal that Justice Powell created, featuring the admissions program at Harvard College.55 While Powell deemed the process at Davis to be objectionable, he deemed the process at Harvard to be palatable. The distinctions that Powell drew between them, however, were squishy and misleading. According to Powell, the Davis program displayed “a facial intent to discriminate,” while “no such facial infirmity exists in an admissions program where race and ethnic background is simply one element—to be weighed fairly against other elements—in the selection process.”56 Powell insinuated that racial discrimination was absent from a Harvard-style admissions process because the race factor was “simply one element” in the program. But race was also only one element in the Davis special program. Both programs were racially discriminatory. If a racial factor is present at all, then racial discrimination is taking place. It may be “positive,” “benign,” or “affirmative” instead of “malign,” “exclusionary,” or “invidious,” but it is a species of “discrimination” nonetheless.d

  Powell railed against the Davis program’s set-aside of a fixed number of seats (sixteen of a hundred), comparing it unfavorably with the seeming fluidity and open-endedness of the Harvard program. Justice Harry Blackmun correctly noted, however, that “the line between the two is a thin and indistinct one.”57 The self-description of the Harvard admissions policy is more opaque than the self-presentation of the Davis policy. It is thus more acceptable to some observers. But beneath the apparent differences, they overlapped on the essential point—they both used race to boost the fortunes of racial-minority applicants, with no intention of excluding whites out of any animus or indifference to them on racial grounds. Justice Powell maintained that the difference in form amounted to an important substantive divide: Harvard’s program would be less objectionable to public opinion than Davis’s program. This mattered, Powell insisted, because appearances matter: “Justice must satisfy the appearance of justice.”58 Critics rightly maintain, however, that Powell’s concern with appearances devolved into mere public relations, facilitating the crafting of a “diversity” compromise that persists largely on the basis of winks and nods.

  GRUTTER V. BOLLINGER and GRATZ V. BOLLINGER

  The second big act in the higher-education affirmative action drama involved Supreme Court rulings stemming from two challenges to admissions programs at the University of Michigan. A full appreciation of those rulings, however, requires a bit of backtracking. Toward the end of the post-Bakke quarter century, some judges disenthralled themselves from Powell’s opinion. The most important example is Hopwood v. Texas,59 a case in which rejected white applicants to the University of Texas Law School sued, claiming that they were victims of reverse discrimination. The plaintiffs argued that they had a constitutional right to be assessed by the University of Texas Law School in a process from which racial considerations were absent altogether. The United States Court of Appeals for the Fifth Circuit agreed.

  When Justice Powell’s Bakke opinion was advanced as a predicate for allowing the school to use race as one factor in selecting a “diverse” entering class, Judge Jerry E. Smith responded that, for him and his colleagues, diversity was not a compelling state interest. This conclusion, Smith maintained, rested on three arguments. First, Justice Powell’s view in Bakke is not binding precedent on this issue, because no other justice joined it. Second, Supreme Court case law subsequent to Bakke cast doubt over the validity of Powell’s diversity theory. In 1990, the Supreme Court had upheld congressional programs that, for the purpose of “diversity,” gave an expressly racial boost to racial-minority entrepreneurs seeking to obtain licenses for radio and television broadcasting.60 But in that ruling, the Supreme Court evaluated the racial distinction in question under only an “intermediate” level of judicial scrutiny. Later, the Court held that “intermediate” scrutiny was insufficient and that only “strict” scrutiny would suffice to validate racial classifications.61 As Judge Smith saw it, no case subsequent to Bakke had accepted diversity as a compelling state interest under a strict scrutiny analysis.

  The third prong of Judge Smith’s repudiation of Powell’s Bakke opinion was a full-bore attack on the idea that public institutions can validly count race as a credential symbolizing a quality valuable to an educational enterprise. “Justice Powell’s conception of race as a ‘plus’ factor,” Smith complained, “would allow race always to be a potential factor in admissions decisionmaking,” indefinitely postponing “the ultimate goal of the Fourteenth Amendment: the end of racially motivated state action.”62 Smith also denounced the credentializing of race as just a new form of stereotyping, asserting that “the use of a racial characteristic to establish a presumption that the individual also possesses other, and socially relevant, characteristics, exemplifies, encourages, and legitimizes the mode of thought and behavior that underlies most prejudice and bigotry in modern America.”63

  Although Hopwood provoked howls of protest, the Supreme Court declined to review it. The Court waited seven more years before revisiting the matter of racial selectivity in university admissions. It finally did so in 2003, in the University of Michigan cases.

  Jennifer Gratz and Patrick Hamacher had applied to the University of Michigan’s College of Literature, Science, and the Arts (LSA), encountered rejection, and sued in 1997. Barbara Grutter had applied to the University of Michigan Law School, failed to get in, and also sued in 1997. Both sets of plaintiffs claimed that, as whites disadvantaged by the university’s minority-friendly d
iversity program, they were victims of unconstitutional reverse discrimination. In Gratz, a United States district judge, heeding Justice Powell’s Bakke opinion, ruled that “diversity” is a compelling justification for racial selectivity in university admissions. The district court also ruled that the then-existing admissions policy at LSA was suitably tailored to meet constitutional requirements, though the previous version, which the plaintiffs had faced, had not been suitably tailored. In short, the district court upheld the current LSA admissions process.

  In Grutter, the United States district court sided with the plaintiffs but was reversed by the Sixth Circuit United States Court of Appeals. The opinion of that court, written by Chief Judge Boyce F. Martin, Jr., declared Justice Powell’s Bakke opinion to be controlling and found the University of Michigan Law School admissions process to be consistent with it. The opinion was rather conventional and masked whatever emotions were felt by its author. The concurring and dissenting opinions were more revealing. Notable among them is a dissenting opinion by Judge Danny Julian Boggs that rejected the idea that Bakke precluded consideration of the diversity issue, mocked the notion that diversity could possibly justify racial selectivity by a public university, and assailed what he saw as the egregiously loose design of the university’s program. He also questioned the good faith of the law school’s administration, academic experts cited by the defendants, and even his court’s chief judge. Boggs alleged that the chief judge had manipulated procedures to increase the probability that pro–affirmative action judges would prevail. This charge of judicial malfeasance provoked a strong response. Judge Eric L. Clay described Boggs’s allegation as “an embarrassing and incomprehensible attack on the integrity of the Chief Judge and this Court as a whole.”64 Similarly, Judge Karen Nelson Moore complained that Boggs and those joining his opinion had “done a grave harm not only to themselves, but to this Court and even to the Nation.…[T]heir conduct … is nothing short of shameful.”65