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"Racist!"
Claiming the high ground of truth, justice and the American Way, both those who defend affirmative action plans and their attackers call their
opponents racists. Other invectives get thrown around, such as "Quotas!" "Reverse Discrimination!" "Elitist!" - and worse.
By the end of its current term this June, the United States Supreme Court will decide Grutter v. Bollinger, in which the affirmative action program of the University of Michigan Law School is challenged as violative of the federal Equal Protection Clause.1 Once again, angry fights about affirmative action, both verbal and otherwise, will rage across the land. The purpose of this article is to propose a structure for a sensible discussion about affirmative action, and hopefully to raise the level of the debate above the acrimony and name-calling tendencies that have characterized previous Supreme Court affirmative action decisions.2
I. The Michigan Law School Case
The Michigan Law School has an affirmative action program in which race or ethnicity is treated as a
"plus" factor in admissions decisions in order to achieve a "diverse" student body. The Federal Circuit Court of Appeals for the Sixth Circuit upheld the program
against a federal Equal Protection challenge. The United States Supreme Court will review it on certiorari.
II. Equal Protection Analysis, Generally
The "bite"
of the Equal Protection Clause is in court review of governmental action for conformity with that Clause. It is only when the United States Supreme Court, as the court of last resort,
declares that governmental conduct is in violation that the Clause achieves lasting significance. Thus, to understand Equal Protection analysis, it is necessary to understand standards
under which judicial review is conducted.
Standards of judicial review are the mechanisms used by courts to determine whether governmental conduct is in conformity with a
particular principle, such as the Equal Protection Clause.3 Such standards consist of three components: the Means used by the government, the Ends sought to be achieved thereby, and the Connection between the two. Thus, standards of judicial review have the "Means - Connection - Ends" structure.
In Equal Protection analysis, the Means used by government consist of the use of classifications. Thus, speeding laws classify car drivers in terms of those who speed and those
who do not. The Ends sought to be achieved consist of governmental objectives, usually ones associated with the achievement of public health, safety, welfare and morals. One objective for
speeding laws is to preserve public safety. In some circumstances, however, the governmental objective sought to be achieved must be of a higher level of "importance" than
merely a "legitimate" public health, safety, welfare and morals objective. Thus, there is a range of objectives demanded by courts, from the comparatively deferential "legitimate
governmental objective" sufficient to uphold speeding laws, to the comparatively activist "compelling state interest" required to uphold governmental conduct that
classifies according to race.
The nature of the Connection between the Means and Ends may range from the comparatively deferential "reasonably likely to achieve the objective," to the comparatively activist "necessary to achieve the objective." Thus, speeding laws which merely affect the use of an automobile - a mere property right - may be upheld because they are "reasonably likely to achieve" the objective of public safety. By comparison, laws - or other governmental conduct, such as admissions programs in public universities - that classify according to race may be upheld only if they are "necessary" to achieve a compelling state interest.4
II. Equal Protection Analysis of the Michigan Law School's Affirmative Action Plan
The Means used by the Michigan Law School is the
use of an affirmative action plan that differentiates according to race. Thus, race is a "plus" factor in the admissions process, albeit not an exclusive or decisive one. The
Ends sought to be achieved by the school is the attainment of a "diverse" student body. The two pivotal issues for the United States Supreme Court therefore are: (a) Does
achievement of a "diverse" student body rise to the level of a "compelling state interest?" (b) If so, does the University of Michigan Law School's affirmative action
plan "necessarily" achieve that objective?
A.Is Achievement of a "Diverse" Student Body a "Compelling State Interest?"
In order to
understand Diversity as an objective, it is helpful to contrast it with the other principle objective that has been advanced for affirmative action plans. That other objective has been
referred to by various terms, including the "Social Justice," "Compensatory," or "Remedial" objective.5 The difference has to do with the objects of programs: "Diversity" as an objective seeks to benefit the institution; "social justice" as an objective seeks to benefit those who are included in an affirmative action plan. Thus, Diversity qualifies as a compelling state interest only if the benefits it provides to
the institution rise to the level of being "compelling."
Whether diversity is compelling in any case depends significantly on the extent to which a court will defer
to the institutional role of the University of Michigan Law School in striking the balance between the costs and benefits involved. Contrary to what adherents to a "no discrimination
based on race whatsoever" position have suggested, there are circumstances in which discrimination based on race has been upheld. In Hunter v. The Regents of the University of California, for example, the court upheld the use of race and ethnicity in the selection of students for participation in the "operation of a research-oriented elementary school dedicated to improving the quality of education in urban public schools."6 The school tested different educational methodologies for possible implementation in the public educational system in California, so the use of race and ethnicity was indispensable for the selection of a group of students that would be representative of the California student population as a whole. The use of race also was upheld in the employment setting in Wittmer v. Peters,7 in which the court held that diversity, specifically promoting a correctional officer to a lieutenant position, was a compelling state interest in a correctional facility. The facility held 200 inmates (of whom 68 percent were black), whereas the security staff consisted of 48 correctional officers (of whom only 2 were black), plus 3 captains (all of whom were white) and 10 lieutenants (of whom 2, a man and a woman, were black). Judge Posner found that the State had demonstrated that the penal objectives of the camp would be advanced by having greater numbers of black lieutenant correctional officers.
The University of Michigan Law School contends that the presence of students who represent the greatest possible variety of backgrounds and viewpoints improves - in fact makes
possible - the provision of an education that will prepare law students for their legal careers.8 The school has produced studies that seek to
demonstrate that effect. Since race is only one factor, and not a determinative one in the school's admissions decisions, the question is whether the Court will accept the balance the
school has achieved between the costs of the use of race and the benefits derived.
B.If so, Does the University of Michigan Law School's Plan "Necessarily" Achieve Diversity?
Even if Diversity is a compelling state interest, the affirmative action plan
of the University of Michigan Law School cannot be upheld unless the school demonstrates (1) the need for the plan and (2) that the plan is "narrowly tailored" to achieve its
objective.
The need for the plan must be shown through evidence, such as scientifically valid studies showing that the educational experience in a non-diverse educational
environment has not produced the benefits which the affirmative action plan would be meant to achieve. "Narrow tailoring" requires the University to show that the scope of the
plan is sufficiently limited to address only the obstacles identified; that the duration of the plan is closed-ended; and that the use of the plan is the means that would be least
restrictive of the rights of those not included within its scope.9
The ultimate result of these requirements is that they invalidate
affirmative action plans that are either unreasonably underinclusive or unreasonably overinclusive. The charge of underinclusion is the "reverse discrimination" claim that
persons who would help achieve the objectives of the plan are not included by it. Thus, a white applicant with coal mining experience may bring a distinctive dimension to the law school
educational environment that a black applicant without such a distinctive background would not. The charge of overinclusion is the "Richard Rodriguez" phenomenon: he claimed
that Stanford University accepted him because of his name, and that he had no connection, association or identification with Hispanic experience, culture or language.10 A properly formulated affirmative action plan will be neither unreasonably underinclusive nor unreasonably overinclusive. Perfection, however, is not required.
III. Road Not Taken
Since the University of Michigan chose to use race as a "plus" factor in its affirmative action plan, that triggered the Equal Protection
requirements that the school demonstrate that Diversity is a "compelling state interest" and that the use of the plan was "necessary" for its achievement. If the
school had not used race as a factor, then it would have been almost a foregone conclusion that the plan would have been approved.
Where race is not used as a factor, then the
Means used does not classify according to a suspect trait, and the typical form of judicial review is relatively undemanding: the End sought to be achieved may be merely a
"legitimate governmental objective" and the Connection need only be reasonable. Moreover, in those circumstances, there is a presumption that the governmental conduct is proper,
thus casting a substantial burden on the challenger to demonstrate invalidity.11
An institution thus may use factors other than race as the
Means: education, work experience, socio-economic status, parental educational levels, family income, awards and other achievements or experiences. Such means would only have to be
justified by achievement of a Legitimate Governmental Objective, and diversity certainly qualifies under that comparatively undemanding standard. Moreover, the Connection between such
Means and the objective of diversity as a component of an educational curriculum surely would be upheld under the relatively undemanding "rational relationship" standard.12
The University of Michigan Law School contends, however, that eliminating race as a factor in their admissions process would prevent the achievement of diversity.13 If the Supreme Court invalidates the University's current program, the University will have no choice but to seek to achieve diversity through race-neutral Means, without using race as a "plus" factor in its admissions process.
Footnotes
1. Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) cert. granted by 123 S. Ct. 617 (2002).
2. For my other articles on affirmative action, see Trivializing Diversity: The Problem of Overinclusion in Affirmative Action Programs, 12 Harv. Blackletter J. 49 (Spring 1995); The Use of Transfer Policies for Achieving Diversity in Law Schools, 14 UCLA Chicano-Latino L. Rev. 139 (1994). See also 9 Harv. Blackletter J. 163 (1992)(reviewing P. Williams, The Alchemy of Race and Rights (1991); 3 Sands, Libonati & Martinez, Local Government Law, ¤20.88 - Affirmative action plans).
3. I have suggested an approach to standards of judicial review generally in 3 Sands, Libonati & Martinez, Local Government Law, ¤16.29.50 (A suggested analytical approach to
standards of judicial review).
4. The distinction, of course, derives from the famous "Footnote Four": United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938)(distinguishing between activist judicial review, when fundamental rights or suspect traits are involved, and deferential review, when property rights are affected by governmental conduct).
5. I used the terms "Diversity" and "Social Justice" to identify the two principal objectives. See Trivializing Diversity: The Problem of Overinclusion in
Affirmative Action Programs, 12 Harv. Blackletter J. 49 (Spring 1995).
6. Hunter v. The Regents of the University of California, 190 F.3d 1061, 1063 (9th Cir. 1999) cert.
denied 531 U.S. 877 (2000).
7.Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996).
8. Grutter v. Bollinger, 288 F.3d at 738-39.
9 For a discussion of these requirements, see Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996) cert. denied 116 S. Ct. 2581 (1996).
10. Richard Rodriquez, Hunger of Memory: The Education of Richard Rodriquez (1982). For a thoughtful analysis, see Richard Delgado, Book Review, Linking Arms: Recent Books on Interracial Coalition as an Avenue of Social Reform, 88 Cornell L. Rev. 855 (March, 2003).
11. Hancock Industries v. Schaeffer, 811 F. 2d 225, 237-38 (3rd Cir. 1987). Of course, challengers may always attempt to demonstrate that the use of non-race criteria is
pretextual, and that such factors are merely proxies for race, triggering the higher level of review discussed above. Such showing, however, requires that the challenger meet a heavy
burden of demonstrating an intent to discriminate on the basis of race. See Village of Arlington Heights v. Metropolitan Housing Dev't Corp., 429 U.S. 252 (1977).
12. See e.g., Vance v. Bradley, 440 U.S. 93, 110-11 (1979); United States v. Carolene Products Co., 304 U.S. 144 (1938).
13. Grutter v. Bollinger, 288 F.3d at 737-38.
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