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and foreign press of India’s being an “emerging global superpower.”34 If this
status is to translate into reality, policy makers have to realize that there is no substitute for concrete measures to ensure that the future of India—its children—are
provided with adequate means to develop their potential. The right to free and
compulsory education of a high standard is an indispensable part of that equation. It remains to be seen whether raising the status of the right to education to
that of a Fundamental Right has a discernible impact on the actual provision of
educational services to children in India.
34
For an example of such a trend in the media, see Yasheng Huang & Tarun Khanna, Can India
Overtake China? FOREIGN POLICY (July/August 2003), available at http://www.foreignpolicy.com/story/
story.php?storyID13774 (arguing that India and China are the next two great powers, and that
India will perform better in economic development than China in the long run).
United States
Supreme Court rules on affirmative action
Mark Tushnet*
Affirmative action—Fourteenth Amendment and equal protection clause—distributive and corrective justice rejected as basis for affirmative action—history of affirmative action cases—University of Michigan undergraduate and law school
decisions—diversity; “critical mass” versus quota—comparative constitutional
considerations
Confronting the question of affirmative action in higher education for the first
time in twenty-five years, the U.S. Supreme Court in June 2003 upheld individualized and flexible affirmative action programs while striking down a more
rigid, numbers-driven program.1 The decisions culminated several decades of
judicial consideration of affirmative action in other contexts, especially
employment and government contracting.
1. Background
The Fourteenth Amendment’s equal protection clause framed the Court’s decisions.2 The equal protection clause is a general equality clause, providing that
no state shall deny any person equal protection of the laws. The U.S.
Constitution, unlike others, contains no specific authorization for affirmative
action, nor does it contain a provision exempting affirmative action programs
from the general equality provision.
* Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center
1
Grutter v. Bollinger, 123 S. Ct. 2325 (2003); Gratz v. Bollinger, 123 S. Ct. 2411 (2003).
2
U.S. CONST. amend. XIV.
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Earlier decisions had delineated important aspects of the applicable
constitutional doctrine.3 At the most general level, the equal protection clause
permits the government to differentiate among the beneficiaries or victims of
its actions when these classifications advance goals that are within the scope
of the government’s authority, and when it makes these distinctions with
sufficient precision. When the government uses racial classifications, the goals
the government may seek to advance are limited to those that are, in the doctrine’s terms, compelling. Further, distinguishing on the basis of race must be
a particularly good way of advancing those compelling interests. The racial
classification must “fit” the goals quite well, or, in doctrinal terms, a program
using race as a classification must be narrowly tailored to advance the
compelling interests.
Proponents of affirmative action contended that the general equality provision should be interpreted to bar the use of race as a basis for allocating benefits or imposing burdens only when the use of the racial category was
“invidious,” meaning that the benefits flowed on the basis of race to whites,
the historically dominant group, or that the burdens were imposed, for racial
reasons, on historically disadvantaged groups. The Supreme Court refused,
however, to distinguish between impermissible and permissible uses of racial
categories based on whether the uses were invidious or benign, largely because
it was skeptical about the courts’ ability to detect when the use of a racial
category was actually invidious though defended as benign.4
Affirmative action programs originated in the efforts to overcome the disadvantages attached to being nonwhite in the United States. The original
conception was that they were consistent with particular understandings of
distributive and corrective justice. First, discrimination against AfricanAmericans over the past centuries had unjustifiably deprived members of that
group of material benefits such as housing and income. In the absence of past
discrimination, the understanding held, African–Americans would have had
larger shares in the nation’s wealth than they actually did. Some economists
suggested that discrimination reduced the incentives African–Americans had
to acquire human capital, such as education and on-the-job training, thereby
reducing the economic base on which their children and grandchildren could
build. Affirmative action distributed today’s wealth to the groups targeted by
such programs so as to adjust distributive shares and in a manner that would
more closely approximate what distributive justice required. Second, corrective
3
This comment addresses only forms of affirmative action that explicitly use racial categories as
the basis for allocating benefits or burdens, and it considers only in passing (only when relevant to
the legal questions raised by those forms of affirmative action) other forms that use criteria correlated with but not identical to race as the basis for the allocations.
4
Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) (holding that the standard for determining whether affirmative action was permissible was the same whether the challenged action
was said to burden or to benefit racial minorities).
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justice was interpreted to require—or at least allow—affirmative action as a
response to historic patterns of discrimination, without regard to the current
distributive effects of such discrimination.
Over the past decades, the Supreme Court held that seeking these distributive and corrective justice goals was not a permissible aim of affirmative
action. Affirmative action could be used as a remedy for identifiable acts of discrimination by the bodies adopting affirmative action programs, even though
the beneficiaries of these affirmative action programs were not necessarily
those who had themselves suffered from those discriminatory acts. But, the
Court held, affirmative action could not be used to remedy what it called “societal” discrimination, that is, the general practices of discrimination pervading
society (perhaps only in the past, perhaps persisting) and adversely affecting
the distributive shares held by African–Americans.
The first affirmative action case the Supreme Court decided on the merits
involved an admissions program at the medical school of one of the branches
of the University of California.5 The medical school operated a two-track
admissions program, reserving 16 seats in its 100-person class for racial
minorities. A majority of the Court held the program unlawful.6 Justice Lewis
F. Powell, Jr., wrote the dispositive opinion. The broadest challenge to affirmative action was that the Constitution barred governments from using race as a
classification for any purpose whatever.7 Justice Powell rejected that argument. He agreed that affirmative action could not be justified as a means of
overcoming societal discrimination. But, he argued, universities could use
affirmative action to achieve the educational benefits flowing from having a
diverse student body.
The decades between 1978 and the end of the century saw an increasing
tension between widespread university practices of affirmative action and
public concern about the practice. In 1996, a lower federal court held that
public universities could not take race into account in their admissions decisions.8 The judges argued that Justice Powell’s opinion put forth only his own
5
The Court had avoided deciding the merits of a previous university affirmative action case by
dismissing the challenge as moot after the plaintiff graduated from the law school whose program
he challenged. De Funis v. Odegaard, 416 U.S. 312 (1974).
6
Regents of University of California v. Bakke, 438 U.S. 265 (1978). Four justices found the program in conflict with the requirements of a federal antidiscrimination statute and did not address
its constitutionality. Four justices would have held that the federal statute prohibited only what the
Constitution prohibited and would have upheld the program.
7
Except, as prior cases indicated, for merely ministerial tasks such as census taking and other
record-keeping chores.
8
Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996). The Supreme Court denied the state’s petition for
review, with several justices noting that the opinion’s technical holding was only that the challenged program had made too much use of race, and that the fact that the lower court had made
broader statements about the use of race to any degree did not, in itself, make the case suitable for
Supreme Court review. Texas v. Hopwood, 518 U.S. 1033 (1996).
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views, not that of a majority of the Court, so that a lower court could reject his
position without “overruling” a controlling Supreme Court decision. Further,
the court said, the Supreme Court’s later decisions ruling out other justifications for affirmative action cast doubt on the claim that Powell’s position
would command a current majority on the Supreme Court. A popular referendum in California adopted a similar ban on affirmative action in 1997.
Even if achieving a diverse student body was a permissible justification for
affirmative action, the second doctrinal consideration came into play.
Affirmative action programs had to be “narrowly tailored” to the goal of
achieving diversity. The Supreme Court’s affirmative action decisions said
rather little about the precise meaning of the narrow-tailoring requirement,
though.
Universities remained committed to affirmative action to the extent the law
allowed it. Other lower courts upheld university affirmative action programs.
Finally, the Supreme Court decided to review two programs from the University
of Michigan that had been the target of a lawsuit supported by conservative
public interest litigation groups. One was the admissions program for the
undergraduate school, the other the admissions program for the law school.
2. The challenged programs
The undergraduate admissions office at the University of Michigan processes
thousands of applications each year. The office modified its methods of determining who to admit as the litigation proceeded, but the program the Supreme
Court considered had many characteristics common to large public university
admissions programs. The office developed a “selection index” that added up
points awarded to the different components of each applicant’s file. Applicants
who had 100 to 150 points were admitted; admission of those with 95 to 99
points was postponed but likely; admission of those with 90 to 94 points
was postponed but admission was unlikely; the applications of those with
75 to 89 points were delayed or postponed; and applicants with 74 points or
below were delayed or rejected.
Points were given, in varying amounts, for the applicant’s high school
grade point average, scores on standardized tests, the quality of the applicant’s
high school, personal essay, and personal achievement and leadership. For
example, children of the university’s alumni got four points automatically, and
Michigan residents got ten points. There was also a miscellaneous category.
Applicants in that category, which included members of underrepresented
racial groups (and athletes the university wanted to recruit), got twenty
points; this was substantially more than the greatest number of points for any
other “soft” characteristic. (An outstanding personal essay, for example, could
be given three points.) The admissions committee could override the selection
index in special cases that were specifically flagged for its attention, for example,
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if an admissions officer believed that the applicant’s quality was not accurately
measured by the maximum number of points available for one of the applicants’ characteristics. An important feature of the undergraduate system was
that relatively few files received individualized attention beyond the calculation of the selection index; nearly all decisions were based solely on the
numbers generated by the index.
The law school’s program was substantially more individualized, in part
because the school received only 3,500 applications each year, many fewer
than the undergraduate admissions office received. The law school’s admissions
office reviewed applications by having its officers examine each file as a whole.
The officers would consider the applicant’s academic record, life experiences,
the “enthusiasm” reflected in letters of recommendation, and the like, as well
as minority or majority status, and arrive at a judgment, not tied to any
particular numbers, about whether the applicant should be admitted.
The law school made a judgment, based on its faculty’s in-class experiences,
that securing the benefits of a diverse student body depended on having what
it called a “critical mass” of underrepresented minorities in each class. The
record in the case strongly suggested that the law school had developed a
rough target for this critical mass and periodically evaluated whether a class in
which the target was met was indeed providing the benefits of diversity.
To ensure that each admitted class did have the desired critical mass, the
head of the admissions office tracked admissions decisions on a daily basis.
This tracking made apparent a feature implicit in the “whole file review” system; the weight given particular factors might differ as the admissions season
proceeded. Early decisions might give more (or less) weight to academic factors
than to minority status, while later decisions might reverse the weightings.
The Supreme Court held that the Constitution permitted universities to seek
to achieve racial diversity in their classes.9 It held that the law school’s individualized processing of applications satisfied the requirement that race may
be taken into account in programs where the use of race is narrowly tailored
to achieving a permissible goal, but that the undergraduate program was not
sufficiently narrowly tailored.
3. The Court’s reasoning
The decision upholding the law school’s admission program was the more
important one, because it endorsed Justice Powell’s position that achieving
diversity in the classroom was a goal sufficiently important to justify the
9
The Court also reaffirmed prior holdings that discrimination by public institutions violating the
Constitution also violates a federal statute banning discrimination by private entities that accept
federal funds. The Court’s decisions, therefore, affect affirmative action programs at essentially all
colleges and universities, because nearly all private colleges and universities receive some form of
federal financial assistance, which triggers the statutory nondiscrimination requirement.
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consideration of race in admissions. Justice Sandra Day O’Connor’s opinion for
the five justices in the majority relied heavily on the law school’s “educational
judgment” that diversity is “essential to its educational mission.”10 The Court
said that it would “defer” to the law school’s judgment. Justice O’Connor also
quoted a portion of Justice Powell’s opinion in the Bakke case, saying that a
university’s “good faith” is “presumed” absent “a showing to the contrary.”11
Deference and a presumption of good faith might seem out of place when
the governing legal standard requires close examination—”strict scrutiny”—
of the use of racial classifications in order, as Justice O’Connor put it in an earlier case, to “smoke out” badly motivated uses of race imposing disadvantages
on members of traditionally ill-treated minority groups. An inquiry designed
to detect instances where the government was not pursuing a truly important
goal is needed.12 Deference and a presumption of good faith would be misplaced because deferring to the university’s educational judgment and presuming its good faith foreclose an inquiry into the importance of the
government’s goal. Justice O’Connor justified deference because of the complexity of the educational judgments involved, and because of the “special
niche” universities hold in the U.S. “constitutional tradition.”13 But, again, the
very complexity of the judgments might be a reason against deference, rather
than for it, because the complexity might conceal the fact that the university
was using a racial classification to advance a goal that would not be thought
truly important were it to be brought out into the open.
Perhaps because of these analytic difficulties, Justice O’Connor also referred
to materials in the record and in supporting briefs that “substantiated” the law
school’s judgment about the importance of diversity, and she offered as “our
view,” apparently arrived at without relying on deference principles, the judgment that “attaining a diverse student body is at the heart of the Law School’s
proper institutional mission.”14
An important part of the Court’s discussion dealt with other material that
“bolstered” the “claim of a compelling interest.”15 The opinion devoted several
paragraphs to material showing that classroom diversity “promotes learning
outcomes” and prepares students better for the workforce they will enter.16
10
Grutter, 123 S. Ct. at 2339.
11
Id., quoting Bakke, 438 U.S. at 318–19.
12
City of Richmond v. J. A. Croson, Co., 488 U.S. 469, 493 (1989).
13
Grutter, 123 S. Ct. at 2339. Justice O’Connor cited opinions suggesting, though not directly
holding, that considerations of academic freedom give extra weight to claims that government
actions violate the First Amendment’s protection of freedom of expression when the government
is dealing with colleges and universities. Id.
14
Id.
15
Id. at 2340.
16
Id. at 2340, 2340–41.
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The opinion cited amicus briefs filed by major corporations to show that “the
skills needed in today’s increasingly global marketplace can only be developed
through exposure to widely diverse people, cultures, ideas, and viewpoints.”17
It cited an amicus brief filed by retired military officers and civilian leaders that
emphasized the importance of affirmative action both in the military service
academies and in university-based officer training programs, where it was
instrumental in producing the qualified and racially diverse officer corps the
brief ’s sponsors believed essential to good leadership in the armed forces as
a whole.
Again, making its own judgments about the importance of diversity in the
classroom and in the wider society, the Court said, “[e]ffective participation by
members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”18 The opinion
then turned to the role universities and their law schools played in producing
graduates who became leaders in society, concluding, “[i]n order to cultivate a
set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the
path to leadership be visibly open to talented and qualified individuals of every
race and ethnicity.”19
The language of deference and academic freedom, then, might be irrelevant
to the dispositive aspects of the Court’s analysis.
Justice O’Connor, again quoting from an earlier opinion, insisted that the
Fourteenth Amendment “protect[s] persons, not groups.”20 Even a diversitybased justification for affirmative action relies, to some extent, on the fact that
students from minority groups are indeed members of groups, and Justice
O’Connor was unable to dissipate the tension between her individualistic focus
and affirmative action itself. The law school insisted that its program did not
rest on the view that minority students “always (or even consistently) express
some characteristic minority viewpoint on any issue.”21 Indeed, the idea of a
critical mass was predicated on rejecting that view. With only a few minority
students in a class, other students might erroneously take what those students
said to express such a characteristic minority viewpoint. A critical mass made
it much more likely that minority students would disagree with each other,
thereby “diminishing the force” of stereotypes about what minorities
thought.22 This seems right.
And yet, Justice O’Connor’s opinion followed this discussion immediately
with a sentence that seemed to impute something distinctive to all minority
17
Id. at 2340.
18
Id. at 2340–41.
19
Id. at 2341.
20
Id. at 2337, quoting Adarand, 515 U.S. at 227.
21
Id. at 2341.
22
Id. at 2340, 2340–41.
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students: “[j]ust as growing up in a particular region or having particular
professional experiences is likely to affect an individual’s views, so too is one’s
own, unique experience of being a racial minority in a society, like our own, in
which race unfortunately still matters.”23 She seems to be asserting that the
way in which one experiences race may differ from one minority member to
another, but that there is something that distinguishes all those unique
experiences—as a group—from the different ways in which nonminority students would experience society and their status within it.
After concluding that classroom diversity was a sufficiently important goal,
the Court turned to the specifics of the law school’s program, to determine
whether its use of race was sufficiently tailored to that goal. Justice O’Connor
began by emphasizing that affirmative action programs could not use quotas,
which she defined as “a program in which a certain fixed number or proportion of opportunities” are reserved for specific groups.24 The law school used
the concept of a “critical mass” to define the extent of its interest in achieving
diversity. The aim of reaching a critical mass, though, did not convert the law
school’s program into a quota. The “critical mass” concept was tied to “the
educational benefits that diversity is designed to produce,” and, therefore, was
not “outright racial balancing,” meaning an attempt to achieve some numerically expressed racial composition of the class for its own sake.25 Justice
O’Connor emphasized that the record showed that the percentage of minority
students in entering classes varied from 13.5 percent to 20.1 percent over a
seven-year period, which, she said, was “a range inconsistent with a quota.”26
The Court’s opinion did not fully address Justice Anthony Kennedy’s observation in dissent that the record revealed rather little year-to-year variation
except to the extent that the law school might have periodically reevaluated
the target enrollment needed to achieve a critical mass. Nor did the opinion
explain why a target was not a quota, particularly in light of the monitoring of
daily reports, something an admissions office would do only to ensure that the
numbers being admitted were actually coming close to the target. The difference between the “critical mass” target and a quota appears to be that quotas
will be filled no matter what (and will never be exceeded), whereas targets can
be missed slightly (and exceeded slightly) without generating anxiety in the
admissions office. This difference, while undoubtedly real, seems rather small
in light of the Court’s insistence that the use of race in decision making is
inherently suspect.
Merely finding that the law school’s program did not involve quotas,
though, did not end the inquiry. The Constitution required that programs
23
Id.
24
Id. at 2342.
25
Id. at 2339.
26
Id. at 2343.
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taking race into account give “individualized consideration” to every application;
the programs “must remain flexible enough to ensure that each applicant is
evaluated as an individual and not in a way that makes an applicant’s race or
ethnicity the defining feature of his or her application.”27 The system did give
each applicant’s file “a highly individualized, holistic review.”28 Admissions
officers examined the file to identify a wide range of ways in which an applicant “might contribute to a diverse educational environment.”29 The record
indicated that the law school, indeed, did take a range of experiences into
account in admitting students; the law school admitted nonminority applicants
with lower grades and test scores than some minority applicants it rejected.
Nor was it impermissible to consider race itself to be a diversity characteristic,
because the “Nation’s struggle with racial inequality” meant that all minority
students were “likely to have experiences of particular importance to the Law
School’s mission” and were less likely to be admitted “on criteria that ignore[d]
those experiences.”30
Justice O’Connor acknowledged that, on the margin and perhaps in many
cases, race would indeed be dispositive but that did not make race “the defining feature.”31 The reason is that that will be true “of any plan that uses race
as one of many factors.”32 The Court having approved of the use of race in
some way, it could not make a “defining feature” something that ruled out
every plan doing what the Court said was constitutionally permissible.
Finally, Justice O’Connor took up the question of whether the law school
could achieve diversity in the classroom by alternative methods that did not
explicitly take race into account. The Constitution did require universities to
give “serious, good faith consideration of workable race-neutral alternatives.”33
One prominent alternative is a “percentage plan,” which, in the undergraduate context, involves guaranteeing admission to every student within a state in
the United States who achieves a specific class rank in his or her high school.
Justice O’Connor observed that it was not clear how such a plan could be
developed for graduate and professional schools (or for schools who see their
missions as national in scope) and suggested that such plans might not even
be race-neutral.34 Other alternatives were admissions by lottery or decreasing
27
Id.
28
Id.
29
Id.
30
Id. at 2344.
31
Id. at 2343.
32
Id. at 2344.
33
Id. at 2345.
34
Id. Justice O’Connor did not explain why not, but academic commentators have suggested that
percentage plans are not race-neutral primarily because they are developed in order to ensure
racial diversity, with the threshold level for guaranteed admission set to guarantee the desired
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the weight given to test scores and undergraduate grade point averages in
admissions. These, Justice O’Connor argued, were methods that were inconsistent with the university’s desire to maintain a selective law school, and, as
such, would “sacrifice” that selectivity—and all other educational values—to
the goal of achieving a racially diverse class. The Constitution did not require
that the university choose between having a selective law school and having
racially diverse classes.
Good faith consideration of alternatives did mean, though, that the university had to reevaluate its race-conscious admissions programs periodically to
determine whether they remained necessary. Further, “race-conscious admissions policies must be limited in time,”35 a point discussed in more detail below.
A differently constituted majority held that the undergraduate program
was unconstitutional because it lacked the flexibility of the law school program. Putting the holding that way, though, obscures the fact that seven justices thought the two programs were constitutionally indistinguishable. Chief
Justice William Rehnquist and justices Anthony Kennedy, Antonin Scalia, and
Clarence Thomas would have invalidated both, and justices John Paul Stevens,
David Souter, and Ruth Bader Ginsburg would have upheld both. Only justices
Sandra Day O’Connor and Stephen Breyer thought the programs were different in a constitutionally meaningful sense.
Chief Justice Rehnquist wrote the opinion striking down the undergraduate
program. Its defect was that it failed to give each applicant’s file “individualized
consideration.”36 The university said that its system allowed admissions officers to pull documents out of the file and give them special attention if the
numerical system seemed to be rejecting a student who ought to be admitted.
But, the Chief Justice wrote, such “flagging” was rare.37
Of course the point system did require admissions officers to look at each file
to determine how many points the applicant should get in each of the system’s
many categories. The essential difficulty was that the twenty points automatically allocated for membership in a racial minority made race “a decisive factor
for virtually every minimally qualified underrepresented minority applicant.”38
That is, minority applicants who crossed the threshold of minimal qualifications were admitted without considering anything else in their files. In contrast,
nonminorities with extraordinary talents could receive only a few additional
points for those talents, rarely sufficient in themselves to guarantee admission.
racial composition of the admitted class (and are, therefore, explicitly race-conscious), and, secondarily, because they achieve racial diversity in university classes only because they are predicated on racial segregation in high schools.
35
Id. at 2346.
36
Gratz, 123 S. Ct. at 2428.
37
Id. at 2429.
38
Id. at 2430.
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The Chief Justice’s opinion was characteristically terse in its legal analysis.
Justice O’Connor elaborated on her understanding of the differences between
the undergraduate and law school programs in a separate opinion. In her
view, the undergraduate program was unduly “mechanized,” with the numerical scores determining admissions outcomes for virtually every student.39
Minority applicants were automatically given a much greater number of
points than were available for diversity characteristics other than race. “Even
the most outstanding national high school leader could never receive more
than five points for his or her accomplishments—a mere quarter of the points
automatically assigned to an underrepresented minority solely based on the
fact of his or her race.”40
The opinion in the law school case concluded by quoting the law school’s
assertion that “it would ‘like nothing better than to find a race-neutral admissions formula.’ ”41 Justice O’Connor observed that Bakke had been decided
twenty-five years before, and concluded, “We expect that 25 years from now,
the use of racial preferences will no longer be necessary.”42 Justice Ginsburg’s
concurring opinion noted that the idea that race-conscious programs “must
have a logical end point” conformed to “the international understanding of
the office of affirmative action.”43 She suggested that the twenty-five-year
period was more an aspiration than a requirement or deadline, noting that the
legal status of diversity-based affirmative action was unsettled for much of the
preceding twenty-five years and, more important, that “conscious and unconscious race bias” is a persisting feature of U.S. society.44 “From today’s vantage
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.”45
39
Id. at 2431.
40
Id. at 2432.
41
Grutter, 123 S. Ct. at 2346.
42
Id. at 2347.
43
Id. She cited the International Convention on the Elimination of All Forms of Racial
Discrimination, which provides that affirmative action programs should not be extended “after the
objectives for which they were taken have been achieved,” and the Convention on the Elimination
of All Forms of Discrimination against Women, which authorizes “temporary special measures”
that “shall be discontinued when the objectives of equality of opportunity and treatment have
been achieved.” Id. citing International Convention on the Elimination of All Forms of Racial
Discrimination, art. 2(2), G.A. Res. 2106, U.N. GAOR, 20th Sess., Supp. No. 14, at 47, U.N. Doc.
A/6014 (1965), entered into force Jan. 4, 1969; and Convention on the Elimination of All Forms of
Discrimination against Women, art. 4(1), G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46,
at 194, U.N. Doc. A/34/46 (1979), entered into force Sept. 3, 1981.
44
Grutter, 123 S. Ct. at 2347.
45
Id. at 2348.
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The mention of a specific time period for ending affirmative action is something of a distraction. Few areas of law, at least where the underlying values are
highly contested, remain stable for such an extended period. As new justices come
to the Supreme Court, through the ordinary processes of death or retirement, the
law will almost inevitably change. Still, putting a specific number on the length of
the Court’s permission might have the effect of discouraging reconsideration of
the Court’s basic holding in these cases. Faced with a challenge to affirmative
action a decade from now, even a reconstituted Court might say that the decision
in 2003 to approve affirmative action for the next generation should be respected
even if the then-sitting justices might reach a different decision were they to treat
the issue as an open one.
4. Implications
The Court’s decisions in these two cases seem designed to put to rest the question of affirmative action in university admissions for many years. Justice
Scalia’s dissenting opinion outlined a series of possible lawsuits against such
programs. Under the Court’s holdings, he said, litigants could question
whether a program gave “enough” individualized attention to each file,
whether the program slipped from having a flexible target into having a quota,
and whether in the particular case there was indeed some educational benefit
from diversity.46 Potential litigants may be hard to locate and, more important,
the costs of such litigation, which will inevitably be quite fact-intensive, are
likely to be high. The litigants in these two cases were supported by a conservative public interest litigation group, but such groups are underfinanced and
prefer to take on challenges that have a greater chance of success than challenges to affirmative action would now seem to present.
Justice Scalia’s reference to the existence of pedagogical benefits at particular institutions raises an important issue, addressed somewhat more directly in
Justice Thomas’s dissenting opinion in the law school case. The question of
having an affirmative action program arises only in selective institutions, those
that receive substantially more applications than they have seats in the class.
Justice Thomas questioned whether there was any special need for selectivity
in the state’s law school. But, looking at higher education more broadly, it is
important to recognize that most U.S. institutions of higher education, including many large public universities, are not at all selective. Affirmative action
programs for admission to selective institutions, that is, are only a small part of
the overall picture of higher education.
Justice Thomas made an additional important point. He observed that the
“problem” selective institutions faced was that minority applicants had substantially lower purely academic credentials than white applicants. He was unwilling
46
Id. at 2349–50.
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to attribute this to some innate incapacity but charged it to inadequacies in the
education provided members of minority groups in their elementary and
secondary schools. Affirmative action programs, according to Justice Thomas,
were an easy way for academic elites to salve their consciences by “doing something” to help members of minority groups while avoiding the hard task of
improving the quality of education in elementary and secondary schools.47
American universities use race in programs other than admissions. The
most important use is in connection with scholarship assistance. Prior to this
year’s cases, lower courts had questioned the constitutionality of race-exclusive
scholarship programs.48 This year’s decisions do not insulate such programs
from challenge, because the latter do more than merely take race into account
as one of many considerations governing scholarship awards. Still, universities
may be able to defend even race-exclusive scholarship programs by tying them
to their permissible affirmative action admissions programs. The argument is
that sending a letter of admission does not guarantee that the class that actually enrolls will have the critical mass the school is seeking. What matters is
how many of the admitted students actually show up—the “yield,” in the jargon of admissions officers. One way to improve the yield, of course, is to give the
admitted student a scholarship to defray tuition and expenses. Selective institutions compete for a relatively small number of minority applicants, and raceexclusive scholarship programs may be a good, and perhaps even the best, tool
for increasing the yield. If so, the Court’s approval of affirmative action in
admissions may carry with it approval of programs designed to increase the
yield, even if the latter are race-exclusive.
The Court’s opinions may have implications for affirmative action programs
outside the academy. Justice Scalia thought they did. The lesson that achieving
a critical mass of minority students in the classroom taught, he argued, was a
“generic [lesson] in socialization and good citizenship.”49 That lesson was not
“uniquely ‘teachable’ in a formal educational setting.”50 He argued that it followed from the Court’s logic that affirmative action was permissible in government hiring for civil service positions. The connection the Court drew between
the importance of the critical mass in the classroom and the wider economy
also suggests that the decisions imply some degree of approval for affirmative
action in employment generally.
Finally, Justice Ginsburg’s dissent in the undergraduate opinion observed
that the combination of the two cases was likely to reduce the transparency
of university admissions programs. It would not be difficult, she suggested, for a
university that, in fact, used an admissions procedure employing something quite
47
Id. at 2361.
48
See, e.g., Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994).
49
Grutter, 123 S. Ct. at 2349.
50
Id.
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close to a point system could conceal that fact by offering public descriptions of a
holistic review process.51 For example, they could “camouflage” their programs
by enhancing the importance of the applicant’s personal essay and then routinely give more weight to essays disclosing the applicant’s minority status. Chief
Justice Rehnquist responded that such behavior would undoubtedly eliminate the
“good faith” that justified deference to the university’s pedagogical judgments.52
That is surely true but not really responsive to Justice Ginsburg’s point, which
goes to the difficulties of discerning bad faith in processes that, under the holding
in the law school case, necessarily will appear highly discretionary.
5. Comparative observations
During the oral argument of the undergraduate case, Justice Ginsburg
observed that the problem of affirmative action was “global” and one that
“other countries operating under the same equality norm have confronted.”53
She mentioned Canada, the European Union, and South Africa. She asked the
solicitor general, who supported those challenging affirmative action, whether
the Court should “consider what judges in other places have said on this subject.”54 The solicitor general replied that “none of those countries has our history,” or the particular doctrinal history that the United States did.55 Justice
Scalia intervened to ask whether any of the countries Justice Ginsburg mentioned had “ever gotten rid of racial preferences or racial entitlements.”56 The
solicitor general replied that, “sadly,” it was true that what Justice Scalia called
“racial entitlements” had not been the road to “a color blind society.”57
The Court did not rely on experience in other nations in its opinions,
although Justice Ginsburg did mention that putting an aspirational time limit
on affirmative action was consistent with international norms. The solicitor
general may well have been correct in suggesting that experience elsewhere
may not be pertinent to the decision on whether or not affirmative action programs are permissible given the particularities of each nation’s history.
Yet, once the Court settled the question of whether affirmative action was
constitutionally permissible, a second question arose, regarding the permissible
contours of affirmative action. Unlike the “yes or no” initial question, the second question raises issues about designing affirmative action programs. It may
51
Gratz, 123 S. Ct. at 2446.
52
Id. at 2430 n.22.
53
Record at 23.
54
Id.
55
Id.
56
Id. at 24.
57
Id.
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well be that experience elsewhere can provide useful information on the design
questions.58 So, for example, the Indian Supreme Court has developed the idea
that well-designed affirmative action programs should generally target the most
disadvantaged members of minority classes and, in some circumstances, must
exclude members of what the Court calls the “creamy layer” of such classes
from the benefits of affirmative action programs.59 A similar idea might be
developed in connection with the Court’s requirement of narrow tailoring, for
example. Yet, the limits of comparative constitutional law are suggested by the
same example. The “creamy layer” concept may have more critical bite in connection with affirmative action programs whose goal is corrective justice or,
even more so, distributive justice than with programs with other goals. And, as
indicated earlier, the U.S. Supreme Court has ruled out corrective and distributive justice as permissible goals of affirmative action programs. The “creamy
layer” concept may thus be ill-suited to designing permissible affirmative action
programs within the doctrinal framework of U.S. constitutional law.
A second observation derives from another comparison between the U.S.
and the Indian constitutional experiences, and then from a comparison between those experiences and later constitutional provisions dealing with affirmative action. To simplify a complex story: the original Indian Constitution
contained only a general equality provision.60 The Indian Supreme Court
interpreted that provision to make affirmative action unconstitutional.61 The
Indian Constitution was then amended to insulate specific forms of affirmative
action from constitutional challenge (or, put another way, to authorize specific
forms of affirmative action).62 The Indian Supreme Court then was confronted
with forms of affirmative action outside the scope of the specific authorization.
It revisited the question of whether the general equality provision, properly
interpreted, barred affirmative action and concluded that it did not.63
The United States Constitution today contains only a general equality
provision, which the Supreme Court has interpreted to restrict affirmative
58
For a similar suggestion, see Mark Tushnet, The Possibilities of Comparative Constitutional Law,
108 YALE L.J. 1225, 1232–33 (1999) (arguing that other nations’ experiences in designing federal
systems might assist in evaluating whether a particular program was incompatible with a
smoothly operating federal system).
59
For discussions, see Clark D. Cunningham & N. R. Madhava Menon, Race, Class, Caste . . . ?
Rethinking Affirmative Action, 97 MICH. L. REV. 1296 (1999); Clark D. Cunningham et al., Passing
Strict Scrutiny: Using Social Science to Design Affirmative Action Programs, 90 GEO. L.J. 835 (2002).
60
INDIA CONST. art. 14.
61
State of Madras v. Dorairajan, A.I.R. 1951 S.C. 226.
62
INDIA CONST. arts. 15(4) and 16(4), inserted by C.I.S. Part III (1951), Constitution (First
Amendment) Act of the Indian Parliament, Jun. 18, 1951.
63
For a condensed version of the story, citing the cases, see Burt Neuborne, The Supreme Court of
India, 1 INT’L J. CONST. L. (I•CON) 476, 496–99 (2003).
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action rather significantly. Perhaps, then, the historical legacy of liberal constitutions is an individualism that casts doubt on the claim that affirmative
action is compatible with liberal constitutionalism. Equally tentatively, it might
be suggested that drafters of post-1950 constitutional bills of rights, such as
the Canadian Charter of Rights, learned from the Indian and U.S. experience
that a general equality provision might be interpreted to bar affirmative action
programs, and that they should include specific provisions dealing with affirmative action if they wish to ensure its constitutionality. The Indian experience
suggests a final stage as well, a version of what has been called holistic interpretation.64 Specific authorizations of affirmative action license the
Constitutional Court to revisit its interpretation of the general equality provision, giving it the opportunity to integrate affirmative action into a revised
concept of equality.
The recent U.S. decisions may provide a chance to see whether a similar
process might occur even in the absence of specific constitutional provisions
authorizing affirmative action. Here, the idea would be that the decisions
approve a seemingly narrow form of affirmative action and do not purport to
change the Court’s doctrine overall. Yet, perhaps the approval of a narrow
form of affirmative action might provoke a rethinking of the Court’s doctrine
under the general equality clause as a whole.
64
For a discussion of the idea of holistic interpretation, see Vicki C. Jackson, Holistic Interpretation:
Fitzpatrick v. Bitzer and our Bifurcated Constitution, 53 STAN. L. REV. 1259 (2001).