re caste ing equality theory will gru7ter survive itself by 2028 bryan k fair introduction
when legal historians examine the rise and fall of the united
states undoubtedly one of the major questions will be why an alleg-
edly great nation would close off effective educational opportunities
to so many of its citizens rendering those educational outsiders at
sea with little ability to compete for global opportunities ' is racism
too entrenched to educate everyone to the same extent as those in
the white ruling elite 2 modern racial disparities in attainment and
performance reflect a longstanding practice of unequal educational
opportunity 3 educational caste is a legacy of discriminatory laws thomas e skinner professor of law the university of alabama school of law i wish to
thank my alabama colleagues for their support i also owe a debt to my students who have
asked me difficult questions about equality and fairness none of my research would be possi-
ble without the support of a team of excellent law librarians at the law school special thanks
to my friend and dean kenneth c randall for his exceptional stewardship of the university of
alabama school of law during the past decade i must also thank our alumni who continue to
give back to their alma mater so generously finally i am ever grateful to patty lovelady nel-
son who assists me in all my work effective educational opportunity should be a fundamental federal constitutional right without it no person can fully realize his or her potential as a citizen without effective educa-
tional opportunities no one can fully benefit from other basic constitutional rights those who
are left without an education are permanently marginalized and relegated to second-caste status
in the society with effective educational opportunities more individuals can sustain and de-
fend themselves 2 cf gomillion v lightfoot 364 u s 339 1960 holding that an alabama statute that has
the effect of depriving african americans of the right to vote is unconstitutional as it violates
the fifteenth amendment yick wo v hopkins 118 u s 356 1886 striking down a califor-
nia statute as unconstitutionally distinguishing between chinese and non-chinese laundromat
owners in violation of the fourteenth amendment william g bowen & derek bok the
shape of the river long-term consequences of considering race in college and
university admissions 1998 studying the performance during and after college of both
white and black children admitted to selective colleges and universities stephan thernstrom
& abigail thernstrom america in black and white one nation indivisible 1997 dis-
cussing a range of issues on the problem of race and race relations including the history of race
developments in the united states social economic and political trends since the civil rights
movement and the changing political climate 3 see e g peter irons jim crow's children the broken promise of the brown
decision 2002 discussing the supreme court's retreat from the brown v board of education
decision and the recent cases allowing state officials to maintain one-race schools without threat
of judicial intervention see also e culpepper clark the schoolhouse door journal of constitutional law
the supreme court has never dismantled educational caste it has
provided no remedy to restore those persons mired in caste to the
positions they would occupy absent discrimination post-brown antidiscrimination policies have been construed not
only to prevent whites from maintaining their historic practices of
overt exclusion of people of color from premier educational re-
sources but also to restrict race-conscious remedial policies seeking
to expand opportunities for persons formerly excluded ' that inter-
pretation of antidiscrimination theory is analogous to telling a serial
bank robber that he cannot rob any more banks but he may keep all
the loot he has accumulated education banks in the united states
have been looted by whites for generations with the acquiescence of
federal state and local authorities yielding wealth and progress for
many thieves' beneficiaries and semi-literate wastelands for millions
of americans who were robbed of their rights to equal educational
opportunity 6
even after token desegregation most separate resource-rich his-
torically white schools and resource-poor historically minority
schools have continued to exist as such 7 this situation led civil rights
lawyers and the naacp legal defense fund to initiate a class action
suit against the u s department of health education and welfare
for failing to comply with and enforce title vi of the 1964 civil
rights acte by continuing to support public schools and colleges that
segregation's last stand at the university of alabama 1993 describing the efforts of
civil rights activists to desegregate the university of alabama desegregating america's
colleges and universities title vi regulation of higher education john b williams ed 3d ed 1988 hereinafter desegregating america's colleges and universities ad-
dressing limited access to higher education for blacks in america in relation to title vi of the
1964 civil rights law s educ found ending discrimination in higher education a
report from ten states 1974 reporting on the continual segregation and discrimination in
public universities see generally henry allen bullock a history of negro education in
the south from 1619 to the present 1967 discussing the history of education of african
americans in the south 4 see e g milliken v bradley 418 u s 717 746 1974 holding that discriminating con-
duct is to be remedied for a specific instance of discrimination in a specific locale brown v bd of educ 347 u s 483 495-96 1954 concluding that since the primary issue of the case
was finding that segregation was unconstitutional the consideration of relief was reserved for
reargument by the parties and the attorney general 5 brown 347 u s at 495-96 see missouri v jenkins 515 u s 70 86-89 1995 discussing
the limits on district courts in fashioning a remedy for desegregation violations 6 see bryan k fair taking educational caste seriously why grutter will help very little 78
tul l rev 1843 2004 arguing that the racial caste system still exists in education and that
the decision in grutter does little to expand opportunities for african americans 7 see united states v fordice 505 u s 717 721-25 1992 describing segregation in
higher education in mississippi 8 42 u s c § 2000d 2003 vol 7 3
re caste ing equality theory
practiced race discrimination and segregation 9 in winning those
cases the plaintiffs proved that separate and unequal treatment was
alive and well and that antidiscrimination law was not a viable solu-
tion to entrenched educational caste now three decades later minorities are still significantly locked
out of the best educational opportunities in virtually every state at
every level of training 0 yet rather than calls for reconciliation and
reparations one hears calls for race-neutral color-blind admission
criteria even if such standards will result in little reform how can
this be fair how can this be equal protection of the law it is nei-
ther fair nor equal and to conclude otherwise is irresponsible it is a
continuing violation of the equality principle leaving to yet another
generation a reckoning what is the relationship between past segregative practices and
the small enrollments of students of color at the flagship campuses in
each state why are there significant test score disparities among
various ethnic groups what can universities do to enroll a diverse
group of students given test score disparities can a school adopt
race-conscious admissions policies to enlarge its enrollment of minor-
ity students or establish a scholarship program for one racial group how much consideration of race is too much does it make a differ-
ence if the school or state has had an active history of excluding spe-
cific racial or ethnic groups from educational opportunities is the
attainment of the educational benefits of diversity a compelling state
interest what are the requisites of a narrowly tailored race-conscious
policy is there a constitutional difference between a policy that gives
a fixed point allotment to all members of certain ethnic groups and a
policy that makes racial classification a plus in individual files includ-
ing the files of nonminority applicants does government have an af-
firmative constitutional duty to dismantle educational caste resulting
from its policies answers to these and similar questions have eluded
resolution for the past twenty-five years 9 see adams v weinberger 391 f supp 269 d d c 1975 requiring the department of
health education and welfare to fully enforce desegregation plans among many of the same
schools at issue in adams v richardson adams v richardson 356 f supp 92 d d c 1973 holding that federal funding going to states with segregated systems of higher education vio-
lated title vi of the civil rights act 1o see fair supra note 6 at 1863 showing percentages of minorities on major campuses feb 2005 journal of constitutional la w
consider the litigation in maryland texas 1 california 13 geor-
gia 14 washington s and most recently michigan 6 some states have
enacted prohibitory legislation barring race-conscious policies by
state agencies 7 some judges have supported the constitutionality of
race-conscious remedial policies others have condemned them as
rank discrimination ' similarly commentators have been divided
sharply on the legitimacy of race-based educational affirmative ac-1 9 20
tion judges and commentators have also split on the meaning and
11 see podberesky v kirwan 38 f 3d 147 4th cir 1994 holding that the university of mary-
land's banneker scholarship program was an unconstitutional racial classification cert denied 514 u s 1128 1995 12 see hopwood v texas 78 f 3d 932 942 5th cir 1996 holding racial preferences in law
school admissions a violation of the equal protection clause and describing justice powell's
opinion in bakke as being joined by no other justice 13 see coalition for econ equity v wilson 122 f 3d 692 9th cir 1997 holding that propo-
sition 209 did not violate equal protection rights of women and minorities and was not pre-
empted by federal civil rights statutes 4 seejohnson v bd of regents 263 f 3d 1234 l1th cir 2001 holding that the policy
awarding fixed numerical bonus to nonwhite applicants was not narrowly tailored to achieve a
comnyelling interest and thus violated equal protection see smith v univ of wash law sch 233 f 3d 1188 1201 9th cir 2000 holding that a
properly designed and operated race-conscious admissions process would not violate either ti-
tle vi or the equal protection clause 16 see grutter v bollinger 539 u s 306 2003 sustaining an admissions policy seeking to
attain the educational benefits of a diverse student body under strict scrutiny gratz v bollin-
ger 539 u s 244 2003 invalidating an admissions policy awarding fixed bonus points for
members of designated racial groups 17 california's proposition 209 is one example that precludes state agencies from adopting
race-conscious affirmative action for information on this proposition 209 prohibition against
discrimination or preferential treatment by state and other public entities see california's
secretary of state website at http vote96 ss ca gov vote96 html bp 209 htm last visited
nov 19 2004 similar legislation has been enacted in other jurisdictions including washing-
ton florida and texas 18 compare grutter 539 u s at 343 allowing law schools to use race in a narrowly tailored fashion in the admissions process and smith 233 f 3d at 1200 declaring a race-conscious ad-
missions program constitutional specifically because of the precedent set out in bakke with
hopwood v texas 78 f 3d 932 5th cir 1996 holding that a university's admissions program by discriminating in favor of minority students violated equal protection 19 the body of commentaries and books on affirmative action is expansive for a discussion
of both the arguments for and against affirmative action see generally the affirmative
action debate steven m cahn ed 2d ed 2002 barbara r bergmann in defense of
affirmative action 1996 bowen & bok supra note 2 lydia chavez the color bind california's battle to end affirmative action 1998 civil rights and social wrongs black-white relations since world war ii john higham ed 1997 christopher edley jr not all black and white affirmative action race and american values 1996 charles r lawrence iii & mari j matsuda we won't go back making the case for
affirmative action 1997 samuel leiter & william m leiter affirmative action in
antidiscrimination law and policy 2002 martha minow not only for myself identity politics and the law 1997 race and representation affirmative action robert post & michael rogin eds 1998 m all raza et al the ups and downs of
affirmative action preferences 1999 philip f rubio a history of affirmative action 1619-2000 2001 john david skrentny the ironies of affirmative action politics culture and justice in america 1996 girardeau a spann the law of affirmative vol 7 3
re caste ing equality theory
action twenty-five years of supreme court decisions on race and remedies 2000 stephan thernstrom & abigail thernstrom america in black and white one nation indivisible 1997 20 see generally michelle adams isn't it ironic the central paradox at the heart of percentage
plans 62 ohio st l j 1729 2001 arguing that percentage plans reflect the deep educa-
tional racial disparities in higher education and that states have a continual obligation to solve
this problem fran ansley classifying race racializing class 68 u colo l rev 1001 1997 arguing for a more group-focused analysis of racial discrimination ian ayres & fredrick e vars when does private discrimination justify public affirmative action 98 colum l rev 1577 1998 justifying public affirmative action as a remedy for private discrimination j m balkin the constitution of status 106 yale lj 2313 1997 arguing that the constitution is committed
to the realization of a democratic culture even though constitutional law is unable to reach this
goal robert m berdahl policies of opportunity fairness and affirmative action in the twenty-first
century 51 case w res l rev 115 2000 arguing that affirmative action in university admis-
sions is the best method of achieving social justice and is much more effective than leaving
americans to their own devices arunabha bhoumik the affirmative action debate 40 harv j on legis 195 2003 detailing common arguments for and against affirmative action martin
d carcieri the wages of taking bakke seriously federal judicial oversight of the public university
admissions process 2001 byu educ & l j 161 finding that despite bakke's problems it should
still be taken seriously and that justice powell's opinion should be faithfully enforced gabriel
j chin the first justice harlan by the numbers just how great was the great dissenter 32 akron
l rev 629 1999 demonstrating that although justice harlan was an ardent defender of afri-
can american civil rights his voting record proves that he was not a defender of the civil rights
of asians sumi cho understanding white women's ambivalence towards affirmative action theo-
rizing political accountability in coalitions 71 umkc l rev 399 2002 proposing theories to
explain why white women themselves a minority do not as a group embrace affirmative ac-
tion marion crain critical race studies colorblind unionism 49 ucla l rev 1313 2002 ar-
guing that labor unions' colorblind ideology is insufficient to overcome the racial caste system in employment lee epstein &jack knight piercing the veil williamj brennan's account of re-
gents of the university of california v bakke 19 yale l & pol'y rev 341 2001 providing a
chronology of the court's internal deliberations about bakke and reprinting justice brennan's
narrative of the bakke decision richard a epstein a rational basis for affirmative action a
shaky but classical liberal defense 100 mich l rev 2036 2002 advocating a standard for
measuring the constitutionality of affirmative action programs by comparing them to practices
voluntarily used by private competitive institutions george p fletcher in god's image the re-
ligious imperative of equality under law 99 colum l rev 1608 1999 arguing that a holistic
view of human dignity best explains and grounds the principle of legal equality william e forbath caste class and equal citizenship 98 mich l rev 1 1999 discussing liberal consti-
tutionalism and its flaws ruth bader ginsburg & deborah jones merritt affirmative action an
international human rights dialogue 21 cardozo l rev 253 1999 relating affirmative action
to the promotion of the general health and welfare of humankind darlene c goring private
problem public solution affirmative action in the 2 1st century 33 akron l rev 209 2000 argu-
ing that affirmative action is not an area solely left for judicial resolution but is a political mat-
ter that requires the involvement of the legislative branch jack greenberg affirmative action in
higher education confronting the condition and theory 43 b c l rev 521 2002 arguing that
the supreme court should examine affirmative action realistically taking into account the con-
dition of african americans and the impact on america when it next reviews this policy sam-
uel issacharoff law and misdirection in the debate over affirmative action 2002 u chi legal f 11 demonstrating that affirmative action stands on precarious grounds under the existing consti-
tutional doctrine paula c johnson ad-in ad-out deciding victory and defeat in affirmative ac-
tion legal contestations 66 alb l rev 433 2003 arguing that the supreme court should reaf-
firm the legal basis for affirmative action charles r lawrence iii each other's harvest diversity's deeper meaning 31 u s f l rev 757 1997 discussing the current state of affirma-
tive action and the supreme court's limitation of its scope in the workplace and higher educa-
tion charles r lawrence iii two views of the river a critique of the liberal defense of affirmative
feb 2005 journal of constitutional law
precedential effect of the supreme court's 1978 decision in regents of
the university of california v bakke undoubtedly this sharp ideologi-
cal division will rage on for the next generation and beyond action 101 colum l rev 928 2001 arguing that the liberal view that the benefits of diver-
sity necessitating the continuance of affirmative action is flawed goodwin liu the causation
fallacy bakke and the basic arithmetic of selective admissions 100 mich l rev 1045 2002 ar-
guing that the perceived unfairness to non-minorities in affirmative action is more exaggerated
than real theodore mcmillian in defense of affirmative action 54 wash u j urb & contemp l 39 1998 defending the legitimacy of affirmative action and arguing that education is the
best mechanism to resolve the debate deborah jones merritt & barbara f reskin sex race and credentials the truth about affirmative action in law faculty hiring 97 colum l rev 199 1997 reporting and analyzing the results from an empirical study of the effects of sex and
race on tenure-track hiring jodi miller democracy in free fall the use of ballot initiatives to
dismantle state-sponsored affirmative action programs 1999 ann surv am l 1 arguing that the
legislative use of ballot initiatives to repeal affirmative action is socially undesirable and a dan-
gerous use of lawmaking cedric merlin powell blinded by color the new equal protection the
second deconstruction and affirmative inaction 51 u miami l rev 191 1997 arguing that in
adhering to the myth of colorblindness governments are ignoring the continual effects of past
discrimination and therefore allowing a period of affirmative inaction cedric merlin pow-
ell hopwood bakke ii and skeptical scrutiny 9 seton hall const l j 811 1999 discussing
the doctrinal manipulation of affirmative action and diversity and exposing the flaws of hopwood
v texas melissa l saunders equal protection class legislation and color blindness 96 mich l rev 245 1997 arguing that the interpretation of the equal protection clause by the su-
preme court's majority in the racial gerrymandering cases is flawed and inconsistent with the
fourteenth amendment peter h schuck affirmative action past present and future 20 yale
l & pol'y rev 1 2002 discussing the misunderstandings that plague the affirmative action
debate and proposing a better reconciliation of the conflicting social values david s schwartz the case of the vanishing protected class reflections on reverse discrimination affirmative action and
racial balancing 2000 wis l rev 657 opposing the widespread consensus that the supreme
court should resolve the affirmative action debate as the court has not been a progressive force
on issues of racial justice and has failed to articulate a persuasive justification for overriding af-
firmative action programs of the legislature carol m swain et al life after bakke where whites
and blacks agree public support for fairness in educational opportunities 16 harv blackletrer
l j 147 2000 arguing that the american public has a more expansive notion of merit than
do critics on either side of the affirmative action debate russell l weaver does practicality have a place in the canon of constitutional law 17 const comment 341 2000 arguing that
race-based affirmative action should be replaced by programs that favor the economically disad-
vantaged timothy zick angry white males the equal protection clause and classes of one 89
ky l j 69 2000 arguing that the supreme court misinterpreted the equal protection clause
in village of willowbrook v olech which held that equal protection may be invoked to challenge
individual claims of mistreatment by government officials william c kidder comment does
the lsat mirror or magnify racial and ethnic differences in educational attainment a study of
equally achieving elite college students 89 cal l rev 1055 2001 examining whether stu-
dents of color with commensurate grades score lower on the lsat than white students alex-
andra d mease-white note hopwood v texas challenging the use of race as a proxy for diversity
in america's public universities 29 conn l rev 1293 1997 examining the continued viability
of using affirmative action plans to achieve racial diversity at public universities victor v wright note hopwood v texas the fifth circuit engages in suspect compelling interest analysis in
strikingdown an affirmative action admissions program 34 hous l rev 871 1997 arguing that
the fifth circuit erred in finding that bakke is no longer good law and in rejecting the affirma-
tive action policy of the university of texas school of law 2 438 u s 265 1978 vol 7 3
re caste ing equality theory
but now there is grutter v bollinger 12 given the recasting of bakke
during the last twenty-five years i anticipate a similar re-mapping of
grutter only this time justice sandra day o'connor's opinion will be
deconstructed and recast to mean what future legislators judges and
commentators say she meant perhaps with little regard to her own
words the purpose of this article is to provide a critical guide to grutter especially its resuscitation of justice powell's bakke opinion my goal
is to set forth grutter's meaning to show on what issues the court
agreed i set out what the court has announced as the controlling
legal standards and the rationale for and limitations of each princi-
ple i also examine each concurrence and dissent for points of dis-
agreement and future litigation i then critique grutter's promise in
light of the anticaste principle explaining why it will not likely effect
much change in educational caste in part i i explore the road from bakke to grutter especially the
shifting interpretation of justice powell's bakke opinion by commen-
tators and judges since grutter rests largely on what justice powell
wrote in bakke i examine justice powell's opinion and which justices
agreed with him closely on various issues in part ii i conclude that at
least five justices in bakke endorsed the constitutionality of the har-
vard diversity model nonetheless some intermediate federal courts
had concluded that bakke was not a controlling precedent and that a
majority of the court had not endorsed the diversity rationale after
grutter it is clear that such proclamations of bakke's demise were
mere speculations by conservative judicial activists moreover it is
now clear that five members of the current court agree that race can
be one factor in an admissions policy designed to attain student di-
versity yet it seems likely to me that other conservative judicial activ-
ists and commentators over the next twenty-five years will recast the
six grutter opinions spinning them to diminish this consensus and its
potential to eliminate educational caste in part iii i describe the substance and logic of grutter especially
justice o'connor's opinion which endorses much of what justice
powell wrote two and a half decades before concluding as justice
powell did that some uses of racial classifications are constitutionally
permissible in part iv i critique grutter based on an anticaste equal-
ity theory consistent with the anticaste moorings of the fourteenth
amendment i argue that admissions committees who are aware of
test score disparities should be able to look beyond those scores
when enrolling new classes 22 539 u s 306 2003 feb 2005 journal of constitutional law
my thesis is that the jurisprudential framework employed by jus-
tice o'connor in grutter is on a collision course with itself on one
hand justice o'connor opines the significant benefits of educational
diversity creating a pool of diverse educated leaders representing all
the citizens of the united states on the other justice o'connor
concludes that taking account of racial classifications violates core
equal protection values and thus must be limited in scope and time yet justice o'connor fails to anchor her limiting theory to invidi-
ousness or the smoke-out rationale that she has regularly cited for
distinguishing illegitimate and legitimate uses of racial classifications justice o'connor has said repeatedly that context matters but she
does not explain why context in grutter is not likely to be dispositive
in upholding educational diversity in twenty-five years and beyond thus in grutter the court postpones for another day the taking of
racial caste seriously i back to the future
a disappearing acts
one broad critique of cases like bakke and grutter is that the court
has whitewashed the relevant contextual history as in so many of its
opinions the court writes in both cases as if history never happened
and the most salient pernicious historical facts are rendered super-
fluous to contemporary legal reform almost no one asks why there
are significant disparities in standardized test scores for different eth-
nic groups or what has been done to close the gaps is it one of the
lingering effects of past discrimination or is it genetic does it matter
what the cause is is it fair that so few native americans african
americans pacific islanders and latinos can gain admission at the
best schools in the nation is the solution better schools or subsi-
dized preparatory courses are these minorities simply not working
hard enough consider that for much of the history of public higher education
in the united states administrators at premier colleges and universi-
ties excluded various citizens from equal enrollment consideration 3
one could simply be the wrong ethnicity wrong race wrong gender 23 see e g bullock supra note 3 illustrating the historical exclusion of african american
children from the southern educational system clark supra note 3 describing the resistance
surrounding the desegregation of the university of alabama desegregating america's
colleges and universrries supra note 3 addressing limited access for african americans in
higher education irons supra note 3 arguing that despite brown v board of education african
americans still do not have equal access to higher education s educ found supra note 3 demonstrating the desegregation plans of eight states as short of ensuring the integration of
african americans and minorities into the formerly all-white institutions vol 7 3
re caste ing equality theory
wrong class or wrong religion if one was not a legacy the scion of a
wealthy donor or connected in some other important way publicly-
funded higher education could be placed beyond one's grasp as a
result of exclusionary policies generations of american families at-
tained valuable educational privileges through graduate and profes-
sional schools improving their economic lives and the future oppor-
tunities of their children grandchildren and so on 24 those
affirmative action programs for whites were never styled stigmatic or
demeaning 25 the beneficiaries of such privilege must have included
many underperformers who were outmatched by many of their
classmates but they gained access anyway and they thrived some all
the way to the presidency of the united states 6
simultaneously disfavored americans were generation after gen-
eration told to stay out of elite schools relegated to understaffed and
underfunded second-caste educational programs or denied access
completely after generations of under-education and exclusion it is
no wonder that there are test score disparities indeed it is nothing
short of extraordinary that the test score gaps are not larger 2 7
one might expect a court so steeped in the history and traditions
of the american people to recall this history and discuss its relevance
to questions of constitutional fairness of various educational policies
and practices today perhaps a case could be made that historic prac-
tices were rank discrimination equivalent to practices adopted by the
university of michigan school of law but it is equally plausible that
there are important discernible differences between a policy that says
no people of color need apply solely because of their race and one
that says that because of past discrimination against people of color they are entitled to reparations including admissions opportunities
at the very best schools in the united states 28
one gets the feeling that some members of the court are simply
unwilling to do the work ask the hard questions and tell the whole
story without it it is easy to conclude that all racial classifications
are so dangerous that they must undergo rigorous scrutiny and con-
24 see fair supra note 6 at 1851-54 showing how generations of african americans have
been robbed of possible achievements by their exclusion in many of the public schools 25 id at 1853-54 showing how affirmative action plans were essentially employed for whites
via segregation but no one looked at these programs as being negative like affirmative action 26 charles forelle grades of bush '68 surface in magazine yale daily news nov 2 1999 http www yaledailynews com article asp aid=2636 27 see fair supra note 6 at 1856 showing test score disparities between african american
and white children at ages nine thirteen and seventeen 28 seejames w nickel discrimination and morally relevant characteristics in the affirmative
action debate 3 4 steven m cahn ed 2002 i f compensation in the form of extra op-
portunities is extended to a black man on the basis of past discrimination against blacks the
basis for this compensation is not that he is a black man but that he was previously subjected to
unfair treatment because he was black feb 2005 journal of constitutional la w
tain reasonable durational limits no matter how beneficial they may
be to some 2
yet we live in this country as it has become and bakke and grutter
are consequences of american legal history to interpret them with-
out reference to that history is both unfair and unwise it is unfair for
the court to ignore educational discrimination in maryland where
thurgood marshall among others was turned away from law school in texas where heman sweatt among others was rejected from law
school in missouri where lloyd gaines was excluded from law
school in oklahoma where ada sipuel and g w mclaurin were sub-
jected to segregated conditions in graduate school in alabama where
autherine lucy among others was threatened and expelled from
the university of alabama 3° or in most other states where some
american citizens were intentionally under-educated 3
the justices have a constitutional and moral duty to do their
work teaching the nation through their opinions when they fail to
take racism and caste seriously their opinions lack constitutional le-
gitimacy they cannot shirk their responsibility when they do these
divisive issues remain unresolved judicial resources are wasted and
future generations must start again but the greatest damage is to
our nationhood we remain separated not by genes but rather by
constitutionally sanctioned politically constructed and morally ir-
relevant divisions having nothing to do with human worth real legal
reform is impossible if the court fails to take its responsibilities seri-
ously b discretionary admissions
to illustrate how the court's lack of responsibility has led to the
stifling of legal reform consider bakke itself bakke was the court's
first interpretation of the constitutionality of race-conscious remedial
policies it is instructive at once practically and legally first practi-
cally there is simply nothing in the constitution that sets admissions
standards for colleges or professional schools administrators have
broad discretion to establish criteria and procedures for admission for example a school could decide that before enrollment a student
must have worked for three years a school could set a community
service requirement providing that every applicant spend at least
twelve months working in an anti-poverty program administrators
29 grutter v bollinger 539 u s 306 342 r acial classifications however compelling their
goals are potentially so dangerous that they may be employed no more broadly than the inter-
est demands a ii governmental use of race must have a logical end point 30 s educ found supra note 3 at 1-2 discussing lawsuits attacking racial segregation and
discrimination in american higher education 31 see fair supra note 6 at 1863 showing percentages of minorities on major campuses vol 7 3
re caste ing equality theory
could determine the relevance of grades and or test scores they
could decide if interviews are required if geographical preferences
are given if wealthy donors receive special consideration if alumni
children get a bump or if some special talent or accomplishment is
so noteworthy that an applicant should gain admission administra-
tors would then have tremendous power and flexibility to determine
who would receive limited educational benefits at the best public
schools such was the case at the university of california davis medical
school davis faculty and administrators established criteria and
procedures for admission first admissible candidates needed a 2 5
minimum undergraduate grade point average ugpa second each applicant had a personal interview third davis administrators
evaluated the applicants' ugpas in science courses mcat scores recommendations extracurricular activities and other biographical
data davis did not rank its applicants from highest score to lowest or
admit its students in any order any applicant to the medical school
could receive special consideration from the chair of the committee
32for reasons wholly unrelated to race no aspect of davis's regular admissions program was unconstitu-
tional even though only three minority students enrolled african
american mexican american and native american minority groups
were unrepresented in the first class 3 had allan bakke challenged
any of those policies on constitutional or statutory grounds he would
have lost davis's legal problems arose from changes it made in admissions
after 1970 davis administrators and faculty were concerned that in
its early years of operation very few of its students were african
american native american or mexican american only three out of
fifty were asian americans well over ninety percent of the davis
medical students were racially classified as caucasians 34 the faculty
decided that there should be more racial diversity in the student
body 3 5 of course davis did not adopt policies excluding all white
applicants it did not declare whites unfit to attend medical school or
unfit to associate with minority students its new policies were not
grounded in demeaning anti-white stereotypes instead davis had
hard data over ninety percent of its medical students shared the
same racial classification its regular admissions criteria had yielded
only one or two african american mexican american or native
american students 32 regents of the univ of cal v bakke 438 u s 265 272-74 1978 33 id at 272 34 id at 274-76 35 id at 272 feb 2005 journal of constitutional la w
could davis do anything to alter these enrollment patterns davis
did several things some of which the court found constitutionally
impermissible first davis doubled the size of its entering class 6
any school can do this without fear of constitutional litigation there
is simply nothing in the federal constitution that limits class size since i support expanding educational opportunities at our flagship
schools i encourage our best schools to grow but that alone will not
ensure racial or ethnic diversity or the enrollment of a broad cross-
section of any community especially so long as there are huge dis-
parities in public education within and among school districts davis
could easily expand its class size without increasing minority repre-
sentation davis went further establishing a separate admissions program
and separate numeric standards for african american mexican
american and native american students 3 7 it also set aside sixteen of
the one hundred seats for applicants who were members of those
groups only 33 allan bakke could apply to davis medical school and
did so in 1973 and 1974 39 but he effectively could apply for one of
only eighty-four seats those seats which in theory were open to
every applicant at least in light of actual experience were effectively
not open to african americans or native americans because of their
mcat scores and grades in reality whites and a small number of
asian americans had and would compete for those eighty-four seats the court never explored why or whether that was the reality yet at least implicitly the court reinforced the presumption that
those nonwhites who were denied enrollment were unqualified infe-
rior applicants because of their lower numeric profiles but this pre-
sumption too went unexamined the court did not explore the fac-
tors which have led to disparities in test scores the court did not
examine educational opportunities in the united states the court
did not revisit the racist exclusionary history and traditions of the
american people by failing to do so the court reinforced the pre-
sumption of minority inferiority and white superiority 4°
setting to one side for the moment the court's jurisprudential ob-
fuscation one could legitimately critique the davis special admissions
program first davis did establish a racial quota one which operated
both as a floor ensuring some presence of african american his-
panic american and native american students and a ceiling essen-
36 id at 275 37 id at 275-76 38 id at 275 39 id at 276 40 see generally a leon higginbotham jr shades of freedom racial politics and
presumptions of the american legal process 119-26 1996 outlining a history of whites
in power assuming that african americans were too inferior to be their neighbors vol 7 3
re caste ing equality theory
tially capping the numbers of these minority groups who might en-
roll 41 quotas even ones designed to promote inclusion and educa-
tional opportunities have a negative aspect they allow the govern-
ment to ignore how some race-neutral practices may nonetheless
have a disproportionate burden on some groups second one might
ask why davis set its quota at sixteen out of one hundred how did
administrators arrive at that number why was that number suffi-
cient were whites and a few asians entitled to eighty-four percent of
the seats in the medical school why third did the administrators
consider california's legal history or the state's future fourth who
made the decision to guarantee the admission of a small number of
minorities what was the racial composition of the decision makers fifth did they consider the potential stigma of their policies sixth did they explore all their choices including race-neutral ones we
know few of the answers to these questions because neither the
school nor the court bothered to provide them but my critique is sharper if the court reads our constitution to
prohibit certain quotas it should explain why eighty to ninety per-
cent of de facto quotas for whites at most of our nation's elite schools
are not constitutionally suspect these quotas are rendered invisible
by the court's anti-discrimination jurisprudence no matter how a
school looks as long as it does not have an official whites-first policy those historically white schools are protected from legal challenge and great law schools whether in michigan or alabama continue to
have only a barely-opened schoolhouse door i blame the court for its ineffective jurisprudence only some his-
tory and traditions of the american people matter only some rank
discrimination against whites matters only some discretion favor-
ing minorities matters only some quotas count this is not juris-
prudence it is social engineering to preserve ruling elites it is the
codification of american caste under the pretense of establishing
equality davis medical school could have maintained one admissions pro-
gram it could have eliminated or maintained a 2 5 ugpa for all ap-
plicants it could have compared every file against all in the pool it
could have started pre-med study programs in poor urban or rural
schools in california it could have admitted the entire class under
the same criteria recognizing that there is in fact a disparity on test
scores among different racial groups davis elected a different path its special separate admissions
program its quota gave allan bakke the constitutional and statutory
hook he used to go all the way to the nation's highest court 41 bakke 438 u s at 275 feb 2005 journal of constitutional la w
ii recollections of bakke
in bakke the court split into two sharply divided ideological
camps with justice powell providing the crucial fifth vote on several
conclusions justice powell agreed with justices brennan white marshall and blackmun that race could be considered along with
other diversity factors in making admissions decisions 43 yet justice
powell made clear that in his view unlike the brennan group's view race could not be the sole factor in another camp justice powell
agreed with chief justice burger and justices stewart stevens and
rehnquist that davis's admissions plan-its quota its separate evalua-
tion of applications and its separate criteria-was constitutionally in-
firm and that allan bakke should be admitted 45 thus technically there were two five-to-four decisions one upholding some use of race
in admissions and another striking racial quotas and separate admis-
sions pools but it is also correct that the court was more sharply split four-to-
one-to-four in its rationale for decision when the court is fractured
so many ways it is difficult to know the precedential value of any case did the views expressed by justice powell command the votes of five
justices if not did his opinion have any currency to evaluate what
became a widespread critique one must look back at the opinions of
justices powell brennan and stevens for common ground a justice powell's opinion
i have previously examined justice powell's bakke opinion 46 jus-
tice powell began with an analysis of the scope of title vi of the 1964
civil rights act 47 according to the statute's floor manager in the
house the problem confronting congress was discrimination against
african americans at the hands of recipients of federal funds and
how to guarantee them equal treatment the bill would offer assurance that hospitals financed by federal
money would not deny adequate care to negroes it would prevent abuse
of food distribution programs whereby negroes have been known to be
denied food surplus supplies when white persons were given such food it would assure negroes the benefits now accorded only white students in
programs of high er education financed by federal funds it would in
42 id at 272 43 id id at 272 320 45 id at 271 46 see generally bryan k fair notes of a racial caste baby color blindness and the
end of affirmative action 1997 47 bakke 438 u s at 281-87 vol 7 3
re caste ing equaijty theory
short assure the existing right to equal treatment in the enjoyment of federal
funds 4 8
often when references are made to the civil rights act of 1964 its
historical context is ignored or forgotten justice powell however did not ignore this context holding that title vi must be held to pro-
scribe only those racial classifications that would violate the constitu-
tion 49
justice powell next turned to the question of whether the special
admissions policy was a goal or a quota it is settled beyond question that the rights created by the first section of
the fourteenth amendment are by its terms guaranteed to the individ-
ual the rights established are personal rights the guarantee of equal
protection cannot mean one thing when applied to one individual and
something else when applied to a person of another color if both are
not accorded the same protection then it is not equal 5 °
justice powell continued a 11 legal restrictions which curtail the
civil rights of a single racial group are immediately suspect that is
not to say that all such restrictions are unconstitutional it is to say that
courts must subject them to the most rigid scrutiny 5
justice powell did not insist that all racial classifications were inva-
lid to the contrary he simply held that racial classifications were
subject to strict scrutiny requiring the government to articulate a compelling interest for using them and proof that the policy was precisely tailored to achieve the government's goal 52 davis medical
school set out four goals i reducing the historic deficit of traditionally disfavored minorities in
medical schools and in the medical profession ii countering the ef-
fects of societal discrimination iii increasing the number of physicians
who will practice in communities currently underserved and iv obtain-
ing the educational benefits that flow from an ethnically diverse student
body 5 only the last goal-educational diversity-was significant enough
to meet strict scrutiny according to justice powell concluding that
race may be deemed a 'plus' in a particular applicant's file 4 he
id at 285-86 alteration in original quoting 110 cong rec 1519 1964 49 id at 289 50 id at 289-90 citation omitted id at 291 alteration in original emphasis added quoting korematsu v united states 323 u s 214 216 1944 52 id at 299 bakke is an excellent example of government's use of race-neutral criteria that
clearly subordinates african americans and other minorities when selecting its admissions
criteria davis knew or should have known that virtually no african americans latinos or na-
tive americans would meet them the result is that many students of color remain closed out
of professions under the guise of colorblindness 53 id at 306 citations omitted 54 id at 317 feb 2005 journal of constitutional la w
supported diversity admissions programs like the one in operation at
harvard university that would compare all applicants to each other
for all available seats such diversity qualities could include exceptional personal talents unique work or service experience leadership potential maturity dem-
onstrated compassion a history of overcoming disadvantage ability to
communicate with the poor or other qualifications deemed important in short an admissions program operated in this way is flexible enough
to consider all pertinent elements of diversity in light of the particular
qualifications of each applicant and to place them on the same footing
for consideration although not necessarily according them the same
weight 55
for justice powell diversity admissions programs were constitu-
tional because they treated every applicant as an individual with
unique subjective qualities the diversity policy did not rest on one's
membership in a group but rather focused on the individual quali-
ties of every applicant therefore a candidate would never be re-
jected under such a plan solely because of race moreover justice
powell wrote good faith by the admissions committees would be pre-
sumed in the absence of a showing to the contrary 5 6
in his judgment for the court justice powell wrote that his views
were endorsed and joined by at least four other members of the
court for the reasons stated in the following opinion i believe that so
much of the judgment of the california court as holds petitioner's spe-
cial admissions program unlawful and directs that respondent be admit-
ted to the medical school must be affirmed for the reasons expressed
in a separate opinion my brothers the chiefjustice mr justice stewart mr justice rehnquist and mr justice stevens concur in thisjudgment i also conclude for the reasons stated in the following opinion that
the portion of the california court's judgment enjoining petitioner
from according any consideration to race in its admissions process must
be reversed for the reasons expressed in separate opinions my brothers
mr justice brennan mr justice white mr justice marshall and mr jus-
tice blackmun concur in this judgment 57
one year before deciding bakke the court announced in marks v united state a special rule for evaluating sharply fractured opinions the court explained when a fragmented court decides a case and
no single rationale explaining the result enjoys the assent of five jus-
tices the 'holding of the court may be viewed as that position taken
55 id 56 id at 318-19 57 id at 271-72 58 430 u s 188 1977 vol 7 3
re caste ing equality theory
by those members who concurred in the judgments on the narrowest
grounds 59
bakke is an excellent candidate for a marks analysis since it has so
obviously baffled and divided the lower courts that have considered
it 60 one aspect of the critique is whether justice powell was correct
on the numbers that bakke contained two five-to-four decisions an-
other aspect of the analysis is the narrowest grounds of each hold-
ing 61
b the brennan joint opinion
justice powell asserted that the brennan group concurred in the
holding that the lower court's judgment enjoining petitioner from
according any consideration to race in its admissions process must be
reversed 6 1 if justice powell was correct then five justices held that
race could receive some consideration thus the court was not frac-
tured on this holding even if it was divided on the rationale the brennan group began by asserting in part agreement with
justice powell the court today affirms the constitutional power of federal and
state governments to act affirmatively to achieve equal opportunity for
all but the many opinions should not and must not mask the cen-
tral meaning of today's opinions government may take race into ac-
count when it acts not to demean or insult any racial group but to rem-
edy disadvantages cast on minorities by past racial prejudice at least
when appropriate findings have been made by judicial legislative or
administrative bodies with competence to act in this area the above-quoted language confirms that five members of the court
agreed that a government may take some account of race to remedy
past discrimination the brennan group also agreed with justice
powell that title vi as applied to the instant case went no further in
prohibiting the use of race than the equal protection clause of the
fourteenth amendment the brennan group believed that the davis admissions program
was constitutional and they would have reversed the lower court's
judgment in all respects it agreed with justice powell that a plan
59 id at 193 quoting greggv georgia 428 u s 153 169 n 15 1976 60 grutter v bollinger 539 u s 306 325 2003 citing nichols v united states 511 u s 738 745-46 1994 61 a full marks critique is beyond the scope of this article moreover it is not clear after
grutter if the court has given up on marks perhaps it is time for a new rule interpreting frac-
tured opinions 62 bakke 438 u s at 272 63 id at 324-25 6 id at 325 65 id at 325-26 feb 2005 journal of constitutional lav w
like the harvard plan was constitutional under this approach at
least so long as the use of race to achieve an integrated student body
is necessitated by the lingering effects of past discrimination 66 ac-
cordingly the brennan group concluded that there were also five
votes reversing the judgment below insofar as it prohibit ed the
university from establishing race-conscious programs in the future 67
thus whatever else one might say about the divergence in the powell
and brennan group opinions it is hard to avoid the obvious in their
own words justices powell and brennan believed there were five
votes supporting a model like the harvard plan the brennan group made an all too brief pass at describing our
nation's american dilemma that ever relevant lingering conflict
between the nation's creed of equality and practice of inequality 8 so
much more might have been said for the brennan group extant
societal discrimination against minorities was the rationale for presi-
dent kennedy's request that congress enact title vi empowering the
government to cut off federal funds to programs that discriminate
against negroes 69 the floor manager of title vi in the house also
made it clear that it was designed to assure negroes the benefits now
accorded only white students in programs of high er education 7 ° it
was discrimination against african americans in federally funded
hospitals in food distribution programs that gave surplus food to
whites but refused it to african americans and in similar programs
that congress sought to reverse the government had been com-
plicit in funding segregation and in the exclusion of african ameri-
cans ' the brennan group found the same rationale supporting the
senate's consideration of title vi 72 again the issue was discrimina-
6 id at 326 n 1 67 id at 326 according to the brennan group our nation was founded on the principle that all men are created equal yet
candor requires acknowledgment that the framers of our constitution to forge the 13
colonies into one nation openly compromised this principle of equality with its antithe-
ses slavery the consequences of this compromise are well known and have aptly been
called our american dilemma id 9 id at 329 citing presidentjohn f kennedy address to congress june 19 1963 in 109
cong rec 11 161 1963 70 id at 330 citing rep emanuel celler introduction of title vi to congress jan 31 1964 in 110 cong rec 1519 1964 71 id at 331 it seems rather shocking that while we have on the one hand the 14th
amendment which is supposed to do away with discrimination on the other hand we have
the federal government aiding and abetting those who persist in practicing racial discrimina-
tion quoting rep emanuel celler introduction of title vi to congress feb 3 1964 in 110
cong rec 2467 1964 72 id at 332-35 explaining the brennan group's rationale vol 7 3
re caste ing equality theory
tion against african americans on account of race senator hum-
phrey echoed comments made in the house large sums of money are contributed by the united states each year
for the construction operation and maintenance of segregated schools similarly under the hill-burton act federal grants are made to hos-
pitals which admit whites only in higher education also a substantial part of the federal grants to
colleges medical schools and so forth in the south is still going to segre-
gated institutions nor is this all in several states agricultural extension services sup-
ported by federal funds maintain racially segregated offices for negroes
and whites vocational training courses supported with federal funds are
given in segregated schools and institutions and often limit negroes to
training in less skilled occupations in particular localities it is reported
that negroes have been cut off from relief rolls or denied surplus agri-
cultural commodities or otherwise deprived of the benefit of federally
assisted programs in retaliation for their participation in voter registra-
tion drives sit-in demonstrations and the like the brennan group decided that the specific factual context for
the adoption of title vi made it improbable that congress was an-
nouncing a rule of statutory color blindness 74 indeed to the con-
trary there is some evidence that racial criteria might be permissible
in certain contexts such as in the placement of children in adoptive
or foster homes 75
the brennan group also explained that the proponents of title
vi contemplated and approved the need to overcome the effects of
past racially discriminatory or exclusionary practices engaged in by a
federally funded institution and that race conscious action is not
only permitted but required to accomplish the remedial objectives of
title vi 7 6 the brennan group concluded that whatever might be
73 id at 334-35 quoting sen humphrey remarks to congress mar 30 1964 in 110
cong rec 6543-44 1964 74 id at 336 75 the brennan group noted when senator johnston offered an amendment that would have expressly authorized
federal grantees to take race into account in placing children in adoptive and foster care senator pastore opposed the amendment on the ground that federal administrators
could be trusted to act reasonably and that there was no danger that they would prohibit
the use of racial criteria under such circumstances id at 339 76 id at 344 feb 2005 journal of constitutional la w
said about title vi voluntary race-conscious remedial action is per-
missible under it 77
the brennan group's analysis of title vi is instructive on how the
court might teach the nation about our legal history about context
and discrimination and about how all uses or references to racial
classifications are not the same on tide vi the brennan group said
so much more than it did about white supremacy white superiority and white privilege its analysis of those legal issues could have been
as thorough as its analysis of title vi one key difference between justice powell and the brennan
group was the view that societal discrimination was sufficient grounds
for remedial affirmative action as stated earlier justice powell did
not agree he insisted that only identified invidious discrimination
was sufficient for the adoption of race-conscious remedies 8 justice
powell was unwilling to concede the causal link between societal dis-
crimination and the failure of african americans mexican ameri-
cans and native americans to present more competitive applications another key difference was the standard of review that the bren-
nan group would apply to race-conscious programs unlike justice
powell who insisted on applying strict scrutiny to all race-conscious
policies the brennan group would only apply intermediate scrutiny
to race-conscious policies that did not demean or insult persons be-
cause of their race '9 the brennan group explained that racial clas-
sifications designed to further remedial purposes 'must serve impor-
tant government objectives and must be substantially related to
achievement of those objectives ' 8 ° the brennan group acknowl-
edged that strict scrutiny was appropriate in fundamental rights and
suspect classification cases but it broke with justice powell on
whether the davis program employed a suspect class 8' instead the
brennan group concluded that intermediate scrutiny should be ap-
plied '
7 see id at 353-55 showing that title vi allows voluntary race-conscious remedial action
through the department of health education and welfare's regulations which require af-
firmative measures be taken to overcome the effects of prior discrimination and authorize the
voluntary undertaking of affirmative action programs where institutions have not been guilty of
prior discrimination 78 compare id at 353 showing the brennan group's analysis with id at 296 n 36 showing
justice powell's analysis see id at 355-62 explaining the application of intermediate scrutiny and the reasons for
not applying strict scrutiny id at 359 citation omitted 81 see id at 357 analyzing suspect class status and determining that whites as a class do
not have any of the 'traditional indicia of suspecmess' 82 see id at 360-61 thus our review under the fourteenth amendment should be strict-
not 'strict' in theory and fatal in fact but strict and searching vol 7 3
re caste ing equality theory
more than contending that general strict scrutiny cases were in-1 3
apposite the brennan group sought to establish a second rationale
for affirmative action like justice powell the brennan group agreed
that in cases of invidious discrimination against individuals on ac-
count of race remedial race-conscious remedies were constitutionally
permissible 4 states also may adopt race-conscious programs de-
signed to overcome substantial chronic minority underrepresenta-
tion where there is reason to believe that the evil addressed is a prod-
uct of past racial discrimination '' here the brennan group
implicitly applied the anticaste principle government has the power
to dismantle cumulative caste caused by past racial discrimination the brennan group makes one more argument for remedial poli-
cies properly construed therefore our prior cases unequivocally show
that a state government may adopt race-conscious programs if the pur-
pose of such programs is to remove the disparate racial impact its actions
might otherwise have and if there is reason to believe that the disparate
impact is itself the product of past discrimination whether its own or that
of society at large the brennan group was unwilling to fall into the narrow antidis-
crimination theoretical trap it understood that by law and custom educating african americans had been prohibited it knew that slave
laws segregated schools and massive resistance to equal educational
opportunities were the rule and practice in the nation into the
1970s s7 it did not assume that minority candidates to the medical
school were inferior or unqualified instead it believed that many
had been denied equal educational opportunities growing up in the
1950s t he conclusion is inescapable that applicants to medical school must
be few indeed who endured the effects of de jure segregation the resis-
tance to brown i or the equally debilitating pervasive private discrimina-
tion fostered by our long history of official discrimination and yet come
881to the starting line with an education equal to whites the brennan group recognized the patent unfairness in selecting
admissions criteria that would exclude large numbers of persons who
had been denied the chance to compete fairly because of past dis-
83 see id at 357 unquestionably we have held that a government practice or statute which
restricts 'fundamental rights' or which contains 'suspect classifications' is to be subjected to strict scrutiny' and can be justified only if it furthers a compelling government purpose and even then only if no less restrictive alternative is available 84 id at 366 n 42 85 id at 366 8 id at 369 87 see id at 369-72 surveying historical discrimination 88 id at 372 citation omitted feb 2005 journal of constitutional law
crimination the brennan group recognized racial caste the uneven
playing field and sought to adopt an anticaste legal theory to disman-
tle it the brennan group also pointed out the differences between
programs that excluded all minorities from competing with whites-
on a theory that minorities were inferior-and the davis program's
impact on allan bakke 9 davis did not establish an exclusive preserve
for minority students excluding all whites rather than advance seg-
regation davis tried to bring the races together9 furthermore the
davis program did not stamp allan bakke as an inferior second-class
citizen because of his color moreover the davis program did not
stigmatize any minority group as inferior instead it gave applicants fully qualified to study medicine a chance to do so meeting the same
degree requirements as other students under the same standards 92
the brennan group did not disagree with justice powell that the
harvard plan was constitutional rather it believed there was no ba-
sis for preferring one preference program over the other simply be-
cause harvard did not disclose exactly what weight it gave to race in
any application c the white marshall and blackmun separate opinions
justice white expressed concern that the court had assumed
without full analysis that title vi provides for a private cause of ac-
tion to the contrary justice white reasoned that since there was no
express provision for private actions to enforce title vi and since
congress had so carefully addressed that issue in other titles of the
1964 act it was unlikely that congress had intended by its silence to
create a private cause of action to enforce tite vi 94 justice white
found ample support for his view in the statements of legislators who
played a large role in title vi's passage 9 despite his difference of
99 see id at 374 davis' program does not establish on exclusive preserve for minority
students apart from and exclusive of whites 90 see id assessing the davis program 91 see id at 375 examining the effect of the program on bakke 92 see id at 376 expressing the purpose of affirmative action admissions programs 93 in comparing the harvard and davis programs the brennan group wrote that the harvard approach does not also make public the extent of the preference and
the precise working of the system while the davis program employs a specific openly
stated number does not condemn that latter t here is no basis for preferring a
particular preference program simply because in achieving the same goals that the davis
medical school is pursuing it proceeds in a manner that is not immediately apparent to
the public id at 379 id at 381 examining the congressional intent regarding title vi 95 see id at 385-86 noting that three legislators who were integral in title vi's passage ac-
knowledged that no private right of action existed vol 7 3
re caste ing equality theory
opinion he joined the opinion of the brennan group on the merits
of the title vi and equal protection questions nothing in justice
white's opinion undermined his endorsement ofjustice powell's view
that a university may consider race in its admissions process justice marshall wrote separately concurring in the judgment of
the court that a university may consider the race of an applicant in
making admissions decisions he would not concede that the davis
program violated the constitution 97 justice marshall could not be-
lieve that when a state acts to remedy the effects of that legacy of dis-
crimination the constitution would stand as a barrier 99
justice marshall reminded his brethren of our nation's sordid ra-
cial history-how the declaration of independence's self-evident
truths were intended to apply only to white men how all colonists
were implicated in the slave trade how the protection of slavery was
made explicit in the constitution how we the people in the consti-
tution did not include those whose skin was the wrong color how
slaves were property and slave owners had the constitutional protec-
tion of that property and how african americans were regarded as
inferior and unfit to associate with whites and had no rights which
the white man was bound to respect 99 even after the civil war slav-
ery was replaced by a new system of legal inferiority that lasted for
another century until the modem civil rights acts were enacted be-
tween 1964 and 1968 10
justice marshall also admonished the court for its role in extend-
ing the legal disabilities imposed on african americans through a se-
ries of opinions invalidating congressional reconstruction the
court refused to do for african americans what it had already done
for whites- secure and protect rights belonging to them as freemen 102 and citizens nothing more rather the court affirmed that col-
ored citizens are so inferior and degraded that they cannot be al-
lowed to sit in public coaches occupied by white citizens i 3 justice
marshall concluded that t he position of the negro today in amer-
96 see id at 387 finding that the question of whether a private right of action exists was tan-
gential to the more vital issues of the merits of title vi and equal protection 97 see id stating that the davis program is constitutional and agreeing with the court's af-
firmation of consideration of race when making admission decisions 98 id 99 id at 387-90 100 see id at 390 noting that emancipation did not give african americans equal rights in the
american judicial system 1 see id at 391-94 listing and describing many of the court's decisions limiting the legal
rights of african americans 102 id at 392 quotingjustice harlan's dissent in the civil rights cases 109 u s 3 61 1883 103 id quotingjustice harlan's dissent in plessy v ferguson 163 u s 537 560 1896 feb 2005 journal of constitutional law
ica is the tragic but inevitable consequence of centuries of unequal
treatment ' 4 he continued in light of the sorry history of discrimination and its devastating im-
pact on the lives of negroes bringing the negro into the mainstream of
american life should be a state interest of the highest order to fail to
105do so is to ensure that america will forever remain a divided society beyond recalling the nation's history justice marshall reminded
the court that minorities would not lag behind whites had it not been
for centuries of unequal opportunity and treatment this thesis may
be lost on some members of the court but was not lost on justice
marshall while other justices lament those less qualified especially
favored minorities who undeservingly take spots away from innocent
whites who never owned slaves justice marshall condemned a nation
that would relegate some citizens to second-class status because of the
color of their skin absent unequal treatment justice marshall was
confident that the disfavored status of african americans and their
exclusion from the american mainstream could be reversed 0 6 jus-
tice marshall concluded that it was beyond dispute that race-
conscious remedial measures were constitutional and consistent with
the spirit of the fourteenth amendment it would be a distortion of the policy manifested in that amendment which was adopted to prevent state legislation designed to perpetuate
discrimination on the basis of race or color to hold that it barred state
action to remedy the effects of that discrimination such a result would
pervert the intent of the framers by substituting abstract euality for the
genuine equality the amendment was intended to achieve most narrowly justice marshall agreed with justice powell that a uni-
versity may consider race in its admissions process 0 8 yet he advo-
cated for more for a broader endorsement of race-conscious reme-
dial affirmative action he wanted the court to get out of the way
and let davis open opportunities to minorities to go to medical
school '0 9
justice blackmun participated fully in the joint opinion of the
brennan group after expressing his hope that the time would come
when an affirmative action program would be unnecessary 0 he
104 id at 395 105 id at 396 106 see id asserting strongly that the history of unequal treatment of african americans
could be reversed 107 id at 398 citation omitted justice marshall's opinion is especially salient regarding
what position people of color would hold absent discrimination he asserts fully that any hon-
est remedy would result in the elevation people of color in educational attainment 508 id at 400 109 see id at 402 noting that the court has come full circle in its rulings on african ameri-
cans and affirmative action 11 see id at 403 stating that any hope of leaving affirmative action behind is a slim one vol 7 3
re caste ing equality theory
noted that such time had not yet come he too disagreed with justice
powell that there was a constitutional difference between the davis
plan and the harvard plan even though he conceded that the har-
vard plan was better formulated ' justice blackmun thought it was
ironic that government preferences had been so extensively em-
ployed-for veterans for persons with disabilities in income taxes in
native american programs by geography for athletic ability for chil-
dren of alumni for the affluent for the famous and for powerful
people 12 and justice blackmun was convinced that race conscious-
ness was still necessary i suspect that it would be impossible to arrange an affirmative action
program in a racially neutral way and have it successful to ask that this
be so is to demand the impossible in order to get beyond racism we
must first take account of race there is no other way and in order to
treat some persons equally we must treat them differently we cannot-
we dare not-let the equal protection clause perpetuate racial suprem-
acy in the end justice blackmun echoed justice powell supporting
the constitutionality of an academic institution's consideration of
race or ethnicity as one factor among many in the administration of
its admissions program 1 14 like justice marshall he sought to use af-
firmative action to dismantle racial caste and end racial supremacy d the stevens joint opinion
ironically the sharpest disagreement was set out in justice ste-
vens's opinion 15 justice stevens immediately disputed that the
brennan group could announce the central meaning of the court since it comprised only four justices 16 more importantly the stevens
group narrowed the issues for decision based on court practice to
avoid the decision of a constitutional issue if one can be fairly de-
cided on a statutory ground 7 thus for the stevens group the sin-
1 see id at 406 stating that the difference between the two plans is not constitutionally sig-
nificant 12 see id at 404-06 describing the various preferences that the government has given to cer-
tain groups 113 id at 407 114 id at 406-07 15 today justice stevens is one of the court's most reliable defenders of remedial affirma-
tive action he has perhaps traveled the farthest to conclude that government has an affirma-
tive duty to dismantle racial caste 116 see id at 408 n 1 noting that less than a majority could not find a central meaning 117 id at 411 feb 2005 journal of constitutional law
gle issue for decision was whether davis's special admission program
violated the provisions of title vi of the 1964 civil rights act 11
for justice stevens it was obvious that congress intended title vi
to prohibit all race discrimination including reverse discrimination
and affirmative action policies employing race it was a prohibition
against the exclusion of any individual from a federally funded pro-
gram 'on the ground of race 9 justice stevens rejected the view
that title vi did not apply unless the exclusion carried with it racial
stigma 12 0 referencing the same comments from congressional de-
bates justice stevens concluded that indeed title vi did require
color-blindness 1
21
here the stevens group discounted the historical context stating
that even though congress was not concerned with affirmative action
when it adopted title vi congress enacted a broad solution that
would prohibit reverse discrimination under the principle of color
blindness race was an improper basis for excluding anyone from
participation in a federally funded program 1
22
for the stevens group any use of race by a federally funded pro-
gram violated title vi moreover justice stevens concluded that
the university could not question the availability of a private cause of
action for the first time before the supreme court 2 4 concluding the
issue was not properly before the court nonetheless the stevens
group believed such a private right of action did exist 25 justice ste-
vens held that the special admissions program violated title vi and
affirmed the order admitting bakke to the university justice stevens
dissented from the court's judgment purporting to do anything else 118 see id at 421 finding title vi of the 1964 civil rights act to be the basis for concluding
that the program was unlawful 119 id at 413 120 id at 414 121 see id at 414-16 finding that congress intended title vi to be colorblind 122 id at 418 the stevens group made one analytical mistake when it concluded that con-
gress was not directly concerned with the legality of affirmative action when it enacted title vi stevens never asked or defined policies that gave whites preferences in admissions were not
policies excluding minorities from federally funded programs forms of affirmative action for
whites if so the effect of the justice stevens's opinion was to rule that title vi prohibited the
remedial policies designed to eliminate preferences for whites however the stevens group
never admitted that preferences for whites constituted affirmative action had they done so the unavoidable question for those justices would have been whether title vi prohibits race-
conscious remedies by federally funded programs seeking to eliminate the lingering effects of
historical preferences for whites 123 see id stating that the meaning of the title vi ban on exclusion is crystal clear 124 see id at 419 finding conclusively that litigants are afforded a private right of action un-
der title vi 125 see id at 419-21 holding that a private action may be maintained under title vi vol 7 3
re caste ing equality theory
in bakke's wake federal courts split sharply over its meaning common rationale and precedential effect 126
iii constitutionalizing caste in higher education
given the judicial and academic metanarratives that transformed
the conventional understanding of bakke there is reason to ask if
grutter might undergo a similar metamorphosis consider that as
with bakke in grutter there are six different opinions including con-
currences partial concurrences and dissents and dissents under
marks what is the holding in grutter and what are its governing legal
principles do five justices assent to a single rationale explaining the
result will grutter baffle the circuits as bakke apparently did to an-
swer these questions we must examine grutter closely especially jus-
tice o'connor's opinion for the court a the o'connor opinion
in grutter the court decided whether the use of race as a factor in
student admissions by the university of michigan law school michigan was unlawful 127 five members of the court agreed that
126 e g grutter v bollinger 539 u s 306 325 2003 citing varying opinions in the fifth ninth and eleventh circuits those schools that adopted post-bakke diversity plans which were
the targets of numerous lawsuits waited anxiously for clarification from the supreme court it
remains to be seen whether grutter resolves the split among the circuits over the constitutional-
ity of diversity admissions plans i am skeptically optimistic 127 barbara grutter a white michigan resident applied to the law school with a 3 8 gpa and
a 161 lsat score she was initially placed on the wait list but then rejected she filed suit in
federal court alleging that various university and law school officials had discriminated against
her on the basis of her race in violation of constitutional and statutory provisions including the
fourteenth amendment title vi and 42 u s c § 1981 grutter further alleged that her appli-
cation was rejected because the law school used race as a predominant factor in admissions giving applicants who belong to certain minority groups a significantly greater chance of admis-
sion than students with similar credentials from disfavored racial groups grutter argued that
the law school had no compelling interest tojustify using race in the admissions process id at
316-17 after an extensive bench trial the federal district court concluded that the law school's use
of race as a factor in admissions decisions was unlawful the court determined that the law
school's asserted interest in assembling a diverse student body was not compelling because the
attainment of a racially diverse class was not recognized as such by bakke and is not a remedy for
past discrimination the court held that even if achieving diversity was compelling the law
school's policy was not narrowly tailored to further its compelling interest the court enjoined
the law school's use of race in the admissions process id at 321 the federal court of appeals sitting en banc reversed the district court and vacated the in-
junction grutter v bollinger 288 f 3d 732 6th cir 2002 the appellate court held thatjus-
tice powell's opinion in bakke was binding precedent establishing diversity as a compelling state
interest id at 744-46 justice powell's opinion with respect to diversity comprised the control-
ling rationale for the judgment of the circuit court under the analysis set forth in marks v united states 430 u s 188 1977 the court of appeals held that the law school's use of race
was narrowly tailored because race was mainly a potential plus factor and because the law
feb 2005 journal of constitutional law
michigan's policy was lawful endorsing justice powell's view that stu-
dent body diversity is a compelling interest that can justify the use of
race in admissions according to justice o'connor the law school sought to ensure
that its efforts to achieve student body diversity complied with
bakke 1 29 justice o'connor described the key features of the law
school's admissions policy the hallmark of that policy is its focus on academic ability coupled
with a flexible assessment of applicants' talents experiences and poten-
tial to contribute to the learning around them the policy requires ad-
missions officials to evaluate each applicant based on all the information
available in the file including a personal statement letters of recom-
mendation and an essay describing the ways in which the applicant will
contribute to the life and diversity of the law school in reviewing an
applicant's file the admissions officials must consider the applicant's un-
dergraduate grade point average gpa and law school admissions test lsat score because they are important if imperfect predictors of
academic success in law school the policy stresses that no applicant
should be admitted unless we expect that applicant to do well enough to
graduate with no serious academic problems the policy makes clear however that even the highest possible score
does not guarantee admission to the law school nor does a low score
automatically disqualify an applicant rather the policy requires admis-
sions officials to look beyond the grades and test scores to other criteria
that are important to the law school's educational objectives the policy aspires to achieve that diversity which has the potential to
enrich everyone's education and thus make a law school class stronger
than the sum of its parts the policy does not restrict the types of diver-
sity contributions eligible for substantial weight in the admissions proc-
ess but instead recognizes many possible bases for diversity admissions the policy does however reaffirm the law school's longstanding com-
mitment to one particular type of diversity that is racial and ethnic di-
versity with special reference to the inclusion of students from groups
which have been historically discriminated against like african ameri-
cans hispanics and native americans who without this commitment
might not be represented in our student body in meaningful num-
bers school's program was virtually identical to the harvard admissions program described approv-
ingly by justice powell grutter 288 f 3d at 745-46 four dissenting judges held either that the
law school's use of race was not compelling or that it was not narrowly tailored id at 773-818 the supreme court granted certiorari to resolve the split among the courts of appeals on the
question of whether diversity is a compelling interest that can justify the narrowly tailored use of
race in selecting applicants for admission to public universities grutter 539 u s at 327 w e
turn to the question whether the law school's use of race is justified by a compelling state in-
terest 128 grutter 539 u s at 315-16 129 _ vol 7 3
re caste ing equality theory
the policy does not define diversity solely in terms of racial or ethnic
130
status justice o'connor began her legal analysis by reviewing established
equal protection principles 13 first every racial classification should
be subjected to detailed judicial inquiry to ensure that the personal
right to equal protection has not been infringed g overnment
may treat people differently because of their race only for the most
compelling reasons 13 racial classifications are constitutional only if
they are narrowly tailored to further compelling governmental inter-
ests we apply strict scrutiny to all racial classifications to 'smoke
out' illegitimate uses of race by assuring that government is pursu-
ing a foal important enough to warrant use of a highly suspect
tool u
3
as for the meaning of strict scrutiny justice o'connor made sev-
eral significant observations strict scrutiny is not strict in theory but fatal in fact although all
governmental uses of race are subject to strict scrutiny not all are invali-
dated by it context matters when reviewing race-based governmental action un-
der the equal protection clause u n dealing with claims under
broad provisions of the constitution which derive content by an inter-
pretive process of inclusion and exclusion it is imperative that generali-
zations based on and qualified by the concrete situations that gave rise to
them must not be applied out of context in disregard of variant control-
ling facts not every decision influenced by race is equally objection-
able and strict scrutiny is designed to provide a framework for carefully
examining the importance and the sincerity of the reasons advanced by
the governmental decisionmaker for the use of race in that particular
134
context justice o'connor's legacy on the court will be her attempt at clarify-
ing these legal standards especially the relevance of context when
evaluating racial classifications in light of the above principles justice o'connor considered
whether michigan's use of race was justified by a compelling state in-
terest and whether its admissions policy was narrowly tailored to
achieving that interest michigan argued that its compelling interest
was obtaining the educational benefits that flow from a diverse stu-
130 id citations and internal quotation marks omitted 131 id at 321 examining justice powell's reasoning in bakke and comparing it with other
relevant cases such as marks v united states 430 u s 188 1977 132 id at 326 citing adarand constructors inc v pefia 515 u s 200 227 1995 133 id alteration in original and internal quotation marks omitted citing city of richmond
v j a croson co 488 u s 469 493 1989 1 id at 326-27 citations omitted feb 2005 journal of constitutional la w
dent body 1 35 justice o'connor dispelled the notion that remedying
past discrimination is the only permissible justification for race-based
governmental action '
3 6
justice o'connor made it clear today we hold that the law
school has a compelling interest in attaining a diverse student
body 37 she explained that the law school's educational judgment
that such diversity is essential to its educational mission is one to
which the court should defer justice o'connor recalled justice
powell's reasoning the freedom of a university to make its own judgments as to education
includes the selection of its student body from this premise justice
powell reasoned that by claiming the right to select those students who
will contribute the most to the 'robust exchange of ideas ' a university seek s to achieve a soal that is of paramount importance in the fulfill-
ment of its mission '
justice o'connor explained that in the view of the majority at-
taining a diverse student body is at the heart of the law school's
proper institutional mission and that 'good faith' on the part of the
university is 'presumed' absent 'a showing to the contrary 39 like-
wise justice o'connor endorsed the law school's aspiration to en-
roll a critical mass of minority students ' 4° she distinguished what the
law school sought to achieve through the educational benefits of di-
versity from a program of outright racial balancing which she said was
patently unconstitutional 4
'
justice o'connor also elaborated on the educational benefits that
a diverse student body is designed to produce one benefit is cross-
racial understanding another is breaking down racial stereotypes a
third is helping students to better understand persons of different
races the law school argued that these benefits would make class-
room discussions livelier more spirited and more enlightening 42
additionally the court was persuaded by amici that student body
diversity better prepares students for an increasingly diverse work-
15 id at 328 im id but we have never held that the only governmental use of race that can survive strict
scrutiny is remedying past discrimination nor since bakke have we directly addressed the use
of race in the context of public higher education 137 id 1 id at 329 alteration in original quoting regents of the univ of cal v bakke 438 u s 265 312-13 1978 13 id 14 see id at 328 holding that the law school has a compelling state interest in attaining a
diverse student body 141 see id at 330 racial balance is not to be achieved for its own sake quoting freeman v pitts 503 u s 467 494 1992 142 id vol 7 3
re caste ing equality theory
force 143 moreover military officers and civilian leaders have asserted
that a highly qualified racially diverse officer corps is essential to
the militar's ability to fulfill its principal mission to provide national
security 7 justice o'connor also made it clear that higher educa-
tion should be open to talented and qualified individuals of every
145
race after agreeing that michigan had asserted a compelling state in-
terest justice o'connor then turned to whether the law school's
policy was narrowly tailored 46 the purpose of the narrow tailoring
requirement is to ensure that 'the means chosen fit the compel-
ling goal so closely that there is little or no possibility that the motive
for the classification was illegitimate racial prejudice or stereotype 1
4 7
justice o'connor rejected justice kennedy's assertions that the ma-
jority had abandoned strict scrutiny to the contrary justice
o'connor said the majority adhere to adarands teaching that the
very purpose of strict scrutiny is to take such 'relevant differences into
account 4 18
justice o'connor concluded that michigan's admissions program
was narrowly tailored she wrote to be narrowly tailored a race-conscious admissions program cannot
use a quota system-it cannot insulat e each category of applicants with
certain desired qualifications from competition with all other applicants instead a university may consider race or ethnicity only as a 'plus' in a
particular applicant's file without insulat ing the individual from
comparison with all other candidates for the available seats in other
words an admissions program must be flexible enough to consider all
pertinent elements of diversity in light of the particular qualifications of
each applicant and to them on the same footing for consideration al-
though not necessarily according them the same weight ' 49
143 id 144 id at 331 omission in original quoting brief for julius w becton jr et al 145 id t he diffusion of knowledge and opportunity through public institutions of higher
learning must be accessible to all individuals regardless of race or ethnicity all members of our heterogeneous society must have confidence in the openness and in-
tegrity of the educational institutions that provide their training as we have recognized law schools cannot be effective in isolation from the individuals and institutions with
which the law interacts access to legal education and thus the legal profession must
be inclusive of talented and qualified individuals of every race and ethnicity so that all
members of our heterogeneous society may participate in the educational institutions
that provide training and education necessary to succeed in america id at 332-33 citation omitted 146 id at 333 t he means chosen to accomplish the government's asserted purpose must
be specifically and narrowly framed to accomplish that purpose alterations in original quot-
ing shaw v hunt 517 u s 899 908 1996 147 id quoting city of richmond v j a croson co 488 u s 469 493 1989 148 id at 334 quoting adarand constructors inc v pefia 515 u s 200 228 1995 149 id alterations in original quoting regents of the univ of cal v bakke 438 u s 265 315 317 1978 feb 2005 journal of constitutional law
justice o'connor found that the michigan plan did not operate as
a quota 1 50 she wrote that s ome attention to numbers did not transform the flexible michigan admissions system into a rigid
quota 'f5 additionally justice o'connor found that the law school
engaged in a highly individualized holistic review of each applicant's
file giving serious consideration to all the ways an applicant might
contribute to a diverse educational environment the law school affords this individualized consideration to applicants of
all races unlike the program at issue in gratz v bollinger post the law
school awards no mechanical predetermined diversity bonuses based
on race or ethnicity like the harvard plan the law school's admissions
policy is flexible enough to consider all pertinent elements of diversity
in light of the particular qualifications of each applicant and to place
them on the same footing for consideration although not necessarily ac-
cording them the same weight 152
justice o'connor also found that the law school's plan ade-
quately ensures that all factors that may contribute to student body
diversity are meaningfully considered alongside race in admissions
decisions the majority noted that if the law school did not con-
sider individual experiences fewer underrepresented minorities
would likely enroll all applicants have the opportunity to highlight
their own potential diversity contributions through the submission of
a personal statement letters of recommendation and an essay de-
scribing the ways in which the applicant will contribute to the life and
diversity of the law school 1 5
1
justice o'connor underscored how the law school gave substan-
tial weight to diversity factors besides race the law school fre-
quently accepts nonminority applicants with grades and test scores
lower than underrepresented minority applicants and other nonmi-
nority applicants who are rejected 4 this proved to justice
o'connor that the law school weighs many other diversity factors
besides race that can make a real and dispositive difference for non-
minority applicants as well ' 55
next justice o'connor explained that n arrow tailoring does
not require exhaustion of every conceivable race-neutral alterna-
tive it does however require serious good faith consideration
of workable race-neutral alternatives that will achieve the diversity the
university seeks 56 justice o'connor concluded that the law school
1o id at 335 151 id at 336 152 id at 337 citations omitted quoting bakke 438 u s at 317 153 id at 315 1 id at 338 155 id 156 id at 339 vol 7 3
re caste ing equality theory
did not have to adopt policies that would diminish its ability to
achieve diversity and academic selectivity 157
justice o'connor acknowledged that there are serious problems
of justice connected with the idea of a preference itself therefore she wrote narrow tailoring requires that a race-conscious admissions
program not unduly harm members of any racial group 158 justice
o'connor concluded that the michigan plan did not unduly burden
individuals who are not members of the favored racial or ethnic
groups 15 9 because the law school considers 'all pertinent elements
of diversity ' it can and does select nonminority applicants who
have greater potential to enhance student body diversity over under-
represented minority applicants ' 6° the majority concluded that the
michigan plan did not unduly harm nonminority applicants 6
'
finally justice o'connor noted that a core purpose of the four-
teenth amendment was to do away with all governmentally imposed
discrimination based on race ' ' 62 because of the core purpose the
majority concluded that race-conscious admissions policies must be
limited in time this requirement reflects that racial classifications however compelling their goals are potentially so dangerous that
they may be employed no more broadly than the interest de-
mands 1 63 here the court said that race-conscious admissions poli-
cies must have durational requirements in the context of higher
education the durational requirement can be met by sunset provi-
sions in race-conscious admissions policies and periodic reviews to
determine whether racial preferences are still necessary to achieve
student body diversity 164 this requirement according to the major-
ity assures all citizens that the deviation from the norm of equal
157 see id at 340 we are satisfied that the law school adequately considered race-neutral
alternatives currently capable of producing a critical mass without forcing the law school to
abandon the academic selectivity that is the cornerstone of its educational mission 158 id at 341 159 id quoting metro broad inc v fcc 497 u s 547 630 1990 o'connor j dissent-
ing 160 id quoting regents of the univ of cal v bakke 438 u s 265 317 1978 161 see id we agree that in the context of its individualized inquiry into the possible diver-
sity contributions of all applicants the law school's race-conscious admissions program does
not unduly harm nonminority applicants 162 id quoting palmore v sidoti 466 u s 429 432 1984 this final observation seems to
undermine much of justice o'connor's analysis the present analysis recalls the color-
blindness principle but one wonders if it has any application to a university admissions pro-
gram that seeks the educational benefits of a diverse student body with a critical mass of under-
represented minority students who can enliven and enrich discussions alongside diverse non-
minority students 163 id at 342 164 id feb 2005 journal of constitutional law
treatment of all racial and ethnic groups is a temporary matter a
measure taken in the service of the goal of equality itself 5
b the ginsburg concurrence
justices ginsburg and breyer concurred in the opinion and judg-
ment of the court bringing the number to five justices who joined
the judgment that the equal protection clause does not prohibit
michigan law school's plan to attain the educational benefits that
flow from a diverse student body 66 justices ginsburg and breyer
added two further observations first they explained that a limita-
tion on the duration of racial preferences was consistent with interna-
tional norms 67 second they explained that the united states has yet
to eliminate significant disparities in the educational opportunities of
many americans and thus it remains the current reality that many
minority students encounter markedly inadequate and unequal edu-
cational opportunities they cautioned that flrom today's van-
tage point one may hope but not firmly forecast that over the next
generation's span progress toward nondiscrimination and genuinely
equal opportunity will make it safe to sunset affirmative action 6 9
c justice scalia's dissent
justice scalia joined the dissenting opinion of chief justice
rehnquist and parts i-vii of justice thomas's opinion he likened
the michigan program to a sham to cover a scheme of racially pro-
portionate admissions 7 and he rejected the majority's view that the
law school had a compelling interest to attain the educational bene-
fits of diversity '
7
'
more importantly justice scalia concluded that the grutter-gratz
split double header seems perversely designed to prolong the contro-
versy and the litigation ' 172 he then sketched the scope of potential
future claims some future lawsuits will presumably focus on whether the discriminatory
scheme in question contains enough evaluation of the applicant as an
16 id quoting city of richmond v j a croson co 488 u s 469 510 1989 this part of
justice o'connor's opinion will invite additional attacks on diversity admissions because it is
unclear whether sunset provisions are a constitutional requirement and if so how long is too
long 166 id at 344 167 id 18 id at 346 169 id 170 id at 347 171 id 172 id at 348 vol 7 3
re caste ing equality theory
individual and sufficiently avoids separate admissions tracks to fall un-
der grutter rather than gratz some will focus on whether a university has
gone beyond the bounds of a 'good faith effort ' and has so zealously
pursued its critical mass as to make it an unconstitutional de facto
quota system rather than merely 'a permissible goal ' other lawsuits
may focus on whether in the particular setting at issue any educational
benefits flow from racial diversity still other suits may challenge the
bona fides of the institution's expressed commitment to the educational
benefits of diversity that immunize the discriminatory scheme in grut-
ter and still other suits may claim that the institution's racial prefer-
ences have gone below or above the mystical grutter-approved critical
mass finally litigation can be expected on behalf of minority groups
intentionally short changed in the institution's composition of its generic
minority critical mass forjustice scalia michigan law school's plan was unconstitutional d justice thomas's opinion
justice thomas concurred in part but dissented from the re-
mainder of the court's opinion and the judgment of the court be-
lieving that michigan's current plan violates the equal protection
clause 17 4 justice thomas explained that r acial discrimination is
not a permissible solution to the self-inflicted wounds of this elitist
admissions policy 175
justice thomas agreed with the court insofar as its decision which approves of only one racial classification confirms that further
use of race in admissions remains unlawful 076 justice thomas also
concurred in the court's holding that racial discrimination in higher
education admissions would be illegal in twenty-five years 177
173 id at 348-49 citations omitted 174 id at 351 175 id at 350 justice thomas wrote similarly a university may not maintain a high admission standard and grant exemptions
to favored races the law school of its own choosing and for its own purposes main-
tains an exclusionary admissions system that it knows produces racially disproportionate
results racial discrimination is not a permissible solution to the self-inflicted wounds of
this elitist admissions policy id i176 id at 350-51 certainly a future question is whether the majority intended this construc-
tion read broadly the grutter majority implies that the university might use race in other as-
pects of admissions to attain the educational benefits of diversity for example a university
might use race as one diversity factor in awarding scholarships to individuals 7 id at 351 again one can expect future disputes over whether the majority declared what
justice thomas asserts justice o'connor wrote we expect that 25 years from now the use of
racial preferences will no longer be necessary to further the interest approved today id at
343 and justice ginsburg wrote from today's vantage point one may hope but not firmly
forecast that over the next generation's span progress toward nondiscrimination and genu-
inely equal opportunity will make it safe to sunset affirmative action id at 346 these state-
ments seem incongruent with thomas's statement feb 2005 journal of constitutional la ol w
in his dissent justice thomas explained that there was no press-
ing public necessity or compelling interest at issue in grutter 1r he
argued that only those measures the state must take to provide a
bulwark against anarchy or to prevent violence will constitute a
'pressing public necessity ' 1 7 9 justice thomas questioned whether
the law school's interest in educational benefits or in diverse stu-
dents could meet constitutional requirements concluding that nei-
ther part of the law school's state interest was of pressing public ne-
cessity ' 0 justice thomas criticized the proposition supported by
justice powell and the grutter majority that racial discrimination
could be contextualized ''
justice thomas also wrote that michigan had no compelling in-
terest in having a law school at all much less an elite one 18 ' addi-
tionally justice thomas rejected the concept that michigan had any
cognizable state interests beyond the education of the state's citizens
and the training of the state's lawyers 2 since most graduates of the
law school leave the state justice thomas concluded the state inter-
est was illusory 14 additionally justice thomas wrote that a marginal
improvement in legal education could not justify racial discrimina-
tion '85 instead the law school should be forced to choose between
its classroom aesthetic and its exclusionary admissions system-it
cannot have it both ways 1 8 6
justice thomas wrote that the majority made a series of errors first under strict scrutiny the law school was not entitled to any def-
erence 87 second justice thomas was persuaded that other top law
schools had accomplished their goals without racial discrimination justice thomas was dissatisfied that the court had not fully explained
why the equal protection inquiry should be relaxed finding no sup-
port for that conclusion in the constitution or decisions of the court moreover he cautioned that adherence to the view that there are
educational benefits to diversity would have serious collateral conse-
quences namely racial segregation 89
178 id at 351 quoting korematsu v united states 323 u s 214 216 1944 17 id at 353 190 id at 354-56 181 id at 357 182 id at 358 183 id at 359 18 id at 360 19 id at 361 186 id 187 id using phrases like racial tinkering and racial experimentation justice thomas
rejected the majority's endorsement of the michigan plan 18 id at 362 18 id at 364 vol 7 3
re caste ing equality theory
justice thomas decried the many devices used by universities to
poison what might be a system of admissions based on merit but he
explained he was unwilling to twist the constitution to prohibit the
use of unseemly legacy preferences or many other kinds of arbitrary
admissions procedures 1 90 justice thomas's alternative would have
law schools like michigan abandon their use of the lsat or lower
admissions standards for all applicants '
justice thomas not only argued that the majority in grutter aban-
don settled principles 92 he then explained how overmatched and
underperforming these specially admitted students are at elite
schools the law school tantalizes unprepared students with the
promise of a university of michigan degree and all of the opportuni-
ties that it offers these overmatched students take the bait only to
find that they cannot succeed in the cauldron of competition 93
justice thomas believed that the majority had not relied on prin-
ciple to support the law school's plan and concluded that t he
equal protection clause commands the elimination of racial barriers 190 id at 368 while justice thomas is clearly opposed to the grutter plan much goes unsaid justice thomas presumes the race-neutrality of legacy preferences ignoring that in many if not
most instances legacy preferences go to privileged persons in the society whose parents grandparents and so on were the right race gender religion or class he does not explain
why the equal protection clause is so constrained that it cannot dismantle other forms of caste
and privilege for this author it is inexplicable and unacceptable that educational programs at
major universities in the united states are open only to a handful of nonwhites 191 id at 370-71 while i agree with justice thomas that the lsat is an imperfect bench-
mark for admission to law school i would put even a finer point on it like other standardized
tests the lsat appears to measure how well a person reads and comprehends text those skills
are certainly important to educational success yet such tests do not measure a student's com-
passion for others drive determination character work ethic or other attributes that may tell
us more about how a person will perform that someone takes standardized tests well says
nothing of the person's commitment to hard work ethics or public service yet i do not believe that any race-blind system of admissions will produce educational inte-
gration in the united states i agree with those who seek to distinguish invidious racial dis-
crimination from policies that promote opportunities for all 192 id at 371 citing adarand constructors inc v pefia 515 u s 200 239 1995 for the
dual propositions that racial classifications are per se harmful and that they may not be used to
cure societal ills 193 id at 372 here justice thomas writes passionately about unfairness and stigma yet it is
difficult to resist asking where justice thomas places himself was he one of those overmatched
minority students unprepared for the competition or was he one of the underrepresented mi-
norities who was prepared and deserving of his yale education and thus unfairly stigmatized by
the admission of less qualified minorities moreover his comments seem contrary to earlier
remarks about the imperfections of the lsat it is unclear how justice thomas would decide
who is qualified and of course justice thomas says nothing about average underperforming
whites who pack elite law schools the fact is few americans are exceptional and many are av-
erage and sometimes average americans are appointed to judgeships or even elected presi-
dent of the united states i wonder ifjustice thomas thinks george bush was overmatched at
yale and harvard business school without more it is difficult to take seriously justice tho-
mas's critique i cannot imagine thatjustice thomas would relegate so many americans to less elite schools in the name of equality feb 2005 journal of constitutional law
not their creation in order to satisfy our theory as to how society
ought to be organized 94
e chiefjustice rehnquist's dissenting opinion
chief justice rehnquist agreed with the majority that the appro-
priate standard of review in grutter was strict scrutiny but was unper-
suaded that the michigan law school's policies were narrowly tai-
lored to achieve its asserted interest 5 chief justice rehnquist's
critique is sharp he wrote stripped of its 'critical mass' veil the
law school's program is revealed as a naked effort to achieve racial
balancing 9 6 he attacked the inconsistent meaning of critical mass based on huge differentials in the numbers of native americans his-
panic americans and african americans admitted between 1995 and
2000 noting that the law school does not explain why so few his-
panic americans 47 to 50 or native americans 13 to 19 constitute
critical mass versus african americans 91 to 108 rehnquist as-
serted that because the law school treats underrepresented minori-
ties differently its critical mass goal is a sham '
98
additionally he alleged that
the percentage of the law school's pool of applicants who are members
of the three minority groups and the percentage of the admitted appli-
cants who are members of these same groups is far too precise to be dis-
missed as merely the result of the school paying some attention to the numbers 199
rehnquist wrote that the tight correlation between the percentage
of applicants and admittees of a given race must result from care-
ful race based planning by the law school 20 0 chief justice
rehnquist reminded the majority that it called programs seeking ra-
cial balance patently unconstitutional 2 0 ' finally the chief justice
insisted that the law school's program failed strict scrutiny because it
194 id at 374 quoting defunis v odegaard 416 u s 312 342 1974 douglas j dissent-
ing 195 id at 379 196 id this conclusion seems contrary to the language in the majority opinion justice
o'connor found that one aspect of the law school's goal of attaining the educational benefits
of diversity was to enroll a critical mass of underrepresented minority students this conclu-
sion in the dissent is another front for future challenges and perhaps another salvo in the
forthcoming assault on grutter 197 id at 381 198 id at 383 199 id 200 id at 385 201 id at 386 vol 7 3
re caste ing equality theory
was devoid of any reasonably precise time limit on the law school's
use of race in admissions '02
f justice kennedy's dissent
justice kennedy agreed with the majority that justice powell in
bakke stated the correct rule for resolving the issues in grutter °2
however he argued that the majority misapplied the strict scrutiny
standard and thus undermined court precedent and strict scrutiny 2y
justice kennedy believed that eighty to eighty-five percent of
places in the entering class at michigan law school were given to ap-
plicants in the upper range of the lsat and grade profiles 20 ' he
suspected that beyond the first group race was likely outcome de-
terminative for many members of minority groups 206
justice kennedy was not satisfied that the law school had met its
burden of proving that it had not utilized race in an unconstitutional
way 207 he believed the law school failed to conduct individual re-
views of applications at the late stages save for race as a predominant
factor and the law school's numerical critical mass goals 20 8 because
individual assessment was not safeguarded through the entire process
and because race was a predominant factor in michigan's admissions
process justice kennedy concluded it was unconstitutional 209 al-
though justice kennedy reiterated his approval of giving appropriate
consideration of race in this one context he dissented in grutter be-
cause he thought the court had been too deferential had improperly
applied strict scrutiny and had not been faithful to justice powell's
210
opinion in bakke 202 id 203 id at 387 sid at 388 o id at 389 206 id justice kennedy used statistics to imply that the michigan law school was engaged in
racial balancing 207 id at 391 208 id at 392 209 id at 392-93 interestingly justice kennedy made clear that there is no constitutional
objection to the goal of considering race as one modest factor among many others to achieve
diversity id 210 id at 395 feb 2005 journal of constitutional la w
iv deconstructing gru7ter
a the empty idea of equality
in grutter the court employed a jurisprudential paradigm that
appears on a collision course with itself justice o'connor opined on
the significant benefits of educational diversity so substantial that the
government interest meets the most exacting scrutiny by a majority of
the court then justice o'connor explained that taking account of
race at all violates core equal protection values and therefore must be
limited in scope and time however justice o'connor failed to cabin
her limiting theory to invidiousness or to the smoke out rationale
she has regularly cited for distinguishing between illegitimate and le-
gitimate uses of racial classifications if context truly matters justice
o'connor does not explain how achieving the educational benefits
of diversity could ever be invidious achieving those benefits should
never be illegitimate it should never violate equal protection when government seeks to reduce educational caste it violates no
constitutional interests of any individual because no person has the
right to compel the government to maintain educational caste in-
deed the better rule is that government has an affirmative duty to
dismantle educational caste fifty years ago the court held in brown v board of education21' that
segregation in public schools was inherently unconstitutional it
ruled that school officials had an affirmative duty to dismantle all ves-
tiges of segregation and the court has said repeatedly a deseg-
regation remedy is necessarily designed as all remedies are to re-
store the victims of discriminatory conduct to the position they would
have occupied in the absence of such conduct 21
in some ways grutter raises more questions than it answers can
school officials seek educational diversity only after demonstrating a
history of past discrimination or is achieving educational diversity
always a state interest of the highest order what can universities do
to enroll a diverse group of students given existing test score dispari-
ties how much race-consciousness is too much does the govern-
ment have an affirmative duty to dismantle educational caste result-
ing from its policies must government officials restore victims of
educational caste to the positions they would have occupied in the
absence of educational caste will educational diversity policies sur-
21 347 u s 483 495 1954 212 see green v county sch bd 391 u s 430 437-38 1968 holding that school boards are clearly charged with the affirmative duty to take whatever steps might be necessary to convert
to a unitary system in which racial discrimination would be eliminated root and branch 213 milliken v bradley 418 u s 717 746 1974 vol 7 3
re caste ing equality theory
vive strict scrutiny in twenty-five years because the court did not
provide answers to most of these questions one can anticipate more
challenges and more sharply divided opinions i have explained more fully elsewhere why there will be no real
winners after grutter 14 the court does not mandate that more mi-
nority students must be enrolled at the nation's flagship schools the
court does not declare that the disproportionate educational advan-
tages that whites receive at the top public schools are unconstitu-
tional the court renders most white educational privilege invisible
and protected from legal reform the court ignores extant educa-
tional caste offers no solution to cumulative educational caste caused
by federal state and local policies and provides no remedy to victims
of discriminatory caste the court does not restore people of color
to the position they would have occupied in the absence of discrimi-
natory policies grutter maintains the status quo primarily benefiting whites and
rests on an empty idea of equality it accomplishes no substantive
improvement in the elimination of educational caste it does not
open the schoolhouse door grutter treats all racial classifications as
presumptively invidious even those designed to restore people of
color to the position they would have occupied absent so much dis-
crimination favoring whites such reasoning renders most remedial
strategies or policies unconstitutional b taking educational caste seriously
nearly 135 years ago charles sumner said that his chief goal in
sponsoring the fourteenth amendment was to eliminate black
215caste he thought educational caste in boston public schools wasreprehensible and unconstitutional he opposed government poli-
214 see fair supra note 6 at 1859-60 arguing that minorities are not winners when few get
into elite schools that white victimhood is illegitimate that the court has avoided discussing
educational theft and white privilege and finally that few judges recognize the existence of
educational caste the plaintiffs may prevail but they cannot win a claim grounded on a theory of white
entitlement likewise neither the university nor the student intervenors can win in de-
fense of a policy that allows only a handful of nonwhites to enroll at one of the nation's
premier law schools and the court itself cannot win institutionally as the arbiter of a
decision that affirms white supremacy and caste in the united states bryan k fair no matter ruling victory will elude all in cases on affirmative action b'ham news june 22 2003 at 1c 215 see bryan k fair the anatomy of american caste 18 st louis u pub l rev 381 384 1999 o ne could read the fourteenth amendment equality principle through the same
lens as some of its nineteenth century proponents locating an unmistakable anticaste meaning elegantly and eloquently championed by charles sumner who challenged the black
caste unequivocally 216 see id at 390 in our public schools is the place to commence to break down caste feb 2005 journal of constitutional law
cies advancing white supremacy 217 unfortunately the court has not
fully embraced the anticaste moorings of the fourteenth amend-
ment brown was a first and important step declaring that in the field of
public education the doctrine of 'separate but equal' has no place separate educational facilities are inherently unequal 2 18 since
brown the court has regularly gone backward restricting its mandate
and remedy the court has never measured the full constitutional
violation nor has it articulated a full remedy for it the court has
not taken educational caste seriously it has not taken the rights of
citizens of color seriously it has not taken educational theft seri-
ously indeed it has not taken its duty to lift children of color out of
educational caste seriously grutter is the latest in a long line of cases indicating that the court
has abandoned the children that brown promised equal protection of
the law grutter illustrates an important rhetorical tradition of the
court appearing to give so much but delivering very little brown was
a mandate to eliminate dual educational systems a superior one for
whites and an inferior one for people of color it held that segrega-
tion placed children of color in a racial caste 19
in grutter the court does not lay bare continuing caste it does
not apply brown's anticaste principle the court discusses context in
the most limited manner constraining what government might oth-
erwise do to expand effective educational opportunities the court
does not explain how promoting educational diversity could ever vio-
late the constitution conclusion
grutter is no cure even if it opens the door slightly to some re-
medial policies it is not likely to last or make much difference grut-
ter will likely take a beating similar to the one that shackled bakke also school officials that refused to get on the bakke train are just as
likely to reject the conservative benefits of grutter the court needs to take itself more seriously it needs to do the
hard work of explaining the difference between policies that promote
racial caste and ones that seek to eliminate it the anticaste principle
is the most coherent way up from caste it has clear moorings in the
fourteenth amendment the court should not and must not leave
educational caste in place 217 see id at 390 n 32 the declaration speaks of 'all men' and not 'all white men' 218 brown v bd of educ 347 u s 483 495 1954 29 see id at 493-95 noting that segregation leads to separation in educational opportunities
as well as a feeling of inferior status in the community vol 7 3
feb 2005 re caste ing equality theory 763
one can only speculate what members of the court think about
what position people of color would be in absent discrimination in all
aspects of their lives there is no reason for the court to believe the
status quo is normal in fashioning its remedy for educational caste the court must answer that question then it has a duty to restore
people of color to that position this is difficult work but it must be
done or the american creed will remain a lie