The Problem with Affirmative Action After Grutter: Some Reflections on Fisher v. University of Texas

It’s official: the Supreme Court will hear Fisher v. University of Texas at Austin this term. The Court will determine the constitutionality of the university’s use of race in its undergraduate admissions decisions. Because Justice Kagan has recused herself, supporters of affirmative action must hope (pray!) for a 4-4 split – with Justices Breyer, Ginsburg, Sotomayor, and Kennedy on one side and Justices Alito, Roberts, Scalia, and Thomas on the other.

But, what’s the likelihood that Justice Kennedy will swing to the left? After all, he dissented in Grutter. Part of his discontent in 2003 concerned Michigan Law’s notion of a “critical mass.” Michigan Law argued, and the majority accepted, that a “critical mass” of minority students would promote “cross-racial understanding,” undermine racial stereotypes, prepare students for the “multicultural workforce” that exists outside the law school’s doors, and prevent minority students from having to be “spokespersons for their race.” Essentially, admitting less than a “critical mass” of minority students would be an exercise in futility; however, admitting a “critical mass” of them would further the compelling state interest in securing the educational benefits of having a diverse student body. But, Kennedy protested that he was not fooled by the concept of “critical mass.” To him, “critical mass” walked like a quota and quacked like a quota. “Aha!,” Kennedy exclaimed in dissent. “It’s a quota!” And quotas are, of course, constitutionally repugnant.

So, it may be a bit ominous for those who want to see the University of Texas’ affirmative action program survive review that the university specifically and explicitly argues that it uses race in its admissions decisions in order to ensure that its student body contains a “critical mass” of racial minorities. As Justice Blackmun said in another context: “The signs are evident and ominous, and a chill wind blows.”

Notably, Justice Kennedy did not have a problem with the Grutter majority’s holding that student body diversity was a compelling governmental interest. He noted in his dissent that he found “no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity”; his disquietude was solely with the way that Michigan Law pursued this interest. Thus, if Texas’ program is struck down this term, it will not be because a majority has found that achieving student body diversity is no longer a compelling governmental interest.

Yet, this holding is, for me, the most disturbing part of Grutter. I get it: we have to argue in the language of “diversity” in order to justify affirmative action programs because the jurisprudence will not allow us to argue successfully in the language of “remedying past societal discrimination.” But, while the end is the same (more racial minorities gain access to schools that otherwise would be inaccessible), the means to the end are troubling. Why is “diversity” more attractive as a compelling interest than “remedying past societal discrimination”? The answer may be that those who are imagined to benefit from programs designed to “remedy past societal discrimination” are only the minority groups that were victims of discrimination; however, those who are imagined to benefit from programs designed to increase diversity include nonminorities. To be clear: the programs are the same. But, when “diversity” is the justification for the program, it allows us to imagine that even White people benefit. Nonwhite people and White people acquire cross-racial understanding. Nonwhite people and White people are disabused of racial stereotypes. Nonwhite people and White people are prepared to enter a multicultural workforce. There are no losers with diversity! It’s a win-win!

And I’m pretty sure that individuals of all racial ascriptions and identifications benefit from racially diverse environments. However, my issue is that when the interest was framed in terms that focused only on the benefit that minorities would receive from affirmative action – when it was articulated in the language of “remedying past societal discrimination” – a majority of the Court refused to find that this interest was compelling. Rectifying the enduring effects of the mistreatment, the disenfranchisement, the denial of citizenship, the abuse… That’s definitely legitimate. It may even be important. But, it’s not compelling. Diversity, on the other hand? That’s the stuff that the Fourteenth Amendment can sink its teeth into!

At present, efforts to repair the damage caused by this country’s history of racism and exclusion can only be justified by not making reference to this country’s history of racism and exclusion. There’s something unsettling about that. There’s also something unsettling about the work that the acceptance of the diversity argument, coupled with the rejection of the remediation argument, does to deny that the effects of past societal discrimination even exist. Diversity screams, “Racism is dead!” But, could it be that the premature celebration of racism’s demise is the very sign that demonstrates that racism is alive and well? That is: nonwhite people – Black people, specifically – are poorer, sicker, more frequently incarcerated, die earlier, more likely to die violent deaths, etc., than their White counterparts. If these disparities are not the effects of past societal discrimination – if these disparities are not the effects of institutional mechanisms – then what explains them? The focus shifts to individuals and their pathological choices, behaviors, lifestyles, cultures, instincts, etc. And racism is just a stone’s throw away.

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16 Responses

  1. Brett Bellmore says:

    “Why is “diversity” more attractive as a compelling interest than “remedying past societal discrimination”?”

    Because it provides an excuse for racial preferences which can never expire. No matter how far slavery recedes into the past, no matter how many strides we make in purging America of racial discrimination, “diversity” will always be available as an excuse to keep discriminating in admissions or hiring.

    Of course, that’s also why it’s the most repulsive basis for the preferences it’s opponents could imagine: It amounts to an open admission that the ‘civil rights’ community has finally, and completely, given up on Kings vision of a nation where people would be judged on the content of their character, not the color of their skin.

    Diversity doesn’t scream, “Racism is dead!”. It screams, “Our racism will never die!”

  2. Daniel Clinton says:

    Let’s make college free and be done with this?

  3. Shag from Brookline says:

    Is this a continuation of Brett’s screeds at Balkinization? Did slavery quickly recede into the past after the 13-14-15th Amendments? How many strides in purging America of racial discrimination following such Amendments through Plessy v. Ferguson (1896))? Jim Crow laws were abound in the South for many decades. It took until 1954 with Brown v. Board of Education (58 years) to do away with separate but equal, at least in education. But then we had the states rights codes favoring segregation that took the 1960s Civil Rights Acts to attempt to overcome. But then we had the Southern Strategy of Richard Nixon in 1968. Racial issues did not quickly end. Perhaps a demonstration of purging America of racial discrimination came about with the 2008 election of Obama as the first African-American President. But from day one of his being sworn in, the yahoos challenged and questioned just about everything attempted, done by the Obama Administration. So the strides have shortened, perhaps running in place on a treadmill. Brett may wish to scream in his sense of reality that “his” “racism will never die!” Perhaps the answer to racial issues will come with demographic changes.

  4. Anita Allen says:

    Great discusion Khiara!
    Students from disavantaged backgrounds and those burdened by the multi-generatonal legacy of slavery and segregation deserve admissions to schools that determine they can do the required work. The minority-group students in my law school and undergraduate classes are holding their own and often rise to the very top.
    I am developing a certain discomfort with the classroom diversity rationale in undergraduate admission, despite a commitment to affirmative action.
    I teach undergraduate philosophy (ethics) at the University of Pennsylvania. My classes, which I co-teach with a white male (I am a black female), are models of demographic diversity: students last term hailed from France, England, and China, and at least half were of African American, Asian-American, Indian, West Indian, Hispanic or Near Eastern backgrounds.
    But there is very little expressed viewpoint diversity among my incrediby bright and conscientious Ivy League students. (We discuss topics such as stem cell research, euthanasia, abortion, pacifism, wealth sharing, and animal rights.)
    Where there is expressed veiwpoint diversity, it does not map neatly onto demograophic groups, such that I could say: boy, its good that I have Koreans in this class. Or, gosh, that point wouldn’t have emerged has we not had blacks in this class.
    Beieve me, I am very, very happy to have demographically diverse classes. But the diversity benefit for universities and colleges may not be primarily tied to classroom experiences, as it is sometimes assumed.
    I think the rationale for “diversity” admissons needs to be expanded and clarified in the courts, so that experiences like mine are not treated as evidence that the diversity rational is fake.

  5. AYY says:

    “But there is very little expressed viewpoint diversity among my incredibly bright and conscientious Ivy League students. . . ”

    I don’t mean to hijack the thread, but I’ve heard or read similar comments from others. Just curious about how common this lack of viewpoint diversity is, and if it is common, what the reason for it might be. Is there a sense among the profs that students who don’t share the common viewpoint are reluctant to speak up?

  6. I’m with Anita: fantastic post, and so important. It’s a perfect example of the convergence theory, and depressing too. And it reminds me why negative conception of liberty seems to trump positive liberties at every turn and why equality, meaningful equality, is dismissed. It also brought to mind Bonilla-Silva’s important work. Thanks so much for the illumination. I’m excited for us to showcase your book in our upcoming symposium! Danielle

  7. Orin Kerr says:


    I think it may depend on the course. As you know, I teach criminal procedure, and the classroom diversity rationale is pretty compelling in that particular setting. In particular, the black men tend to have a very different set of experiences with the police than others, and it is extremely valuable to have their voice in the classroom. Of course, different people will disagree on how much that should impact admissions decisions, or whether and how much it should make a constitutional difference. But it is a context in which people of different races really do have different experiences, and in which those different perspectives are very helpful for other students to understand.

  8. Kiara,

    Nice post. I especially liked:

    “At present, efforts to repair the damage caused by this country’s history of racism and exclusion can only be justified by not making reference to this country’s history of racism and exclusion.”

    “Post-racial” amnesia.

  9. Shag from Brookline says:

    Here’s a voice that perhaps might be considered in Orin Kerr’s criminal procedure class: Michelle Alexander’s new book “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.” See yesterday’s (3/7/12) NYTimes Arts Section, first page at top, article headed “Drug Policy as Race Policy: Best Seller Galvanizes the Debate,” with dissents even from the non-white side.

  10. Brett Bellmore says:

    Not post racial amnesia. A determination by the nation’s highest court that the repair job is far enough along that extraordinary measures, such as authorizing discrimination against innocent people, can no longer be justified. Doesn’t mean the job is done, just that we can stop creating new victims in order to help the old ones.

    Perhaps the time has come to stop papering over the problem with discriminatory admissions, and make a serious effort to fix the reasons blacks don’t qualify in reasonable numbers without the preferences.

  11. Shag from Brookline says:

    Brett bares his view of AA:

    ” … we can stop creating new victims in order to help the old ones.”

    But how old are the old victims, keeping in mind events summarized in my earlier comment (#3)? Where does Brett draw the line between old and new?

    Brett seems to offer a way forward with this:

    “Perhaps the time has come to stop papering over the problem with discriminatory admissions, and make a serious effort to fix the reasons blacks don’t qualify in reasonable numbers without the preferences.”

    Perhaps there should be an un-papering of “un-discrimatory” admissions of many whites, via legacies, etc, that accommodate non-bright whites. Among the reasons blacks don’t “qualify” is the color of their skin and the long continuing history of segregation that continues in various ways today. No, I don’t think Brett is serious about a solution. For example, would Brett favor extensive public funding for public schools to assist blacks in “qualifying”? Recall the southern reactions to Brown v. Board of Education, the Civil Rights Acts of the 1960s and the Republicans’ Southern Strategy that continues to this day as evidenced by the campaigns of Gingrich and Santorum. Maybe it’s not the “NEW” but the “OLD,” same “OLD” Jim Crow.

  12. JoeJP says:

    “excuse for racial preferences”

    The “excuse” being that race still is – along with lots of other things factored in for admissions (e.g., being black alone won’t get you into Harvard) – a social construct along with say gender, location one grew up with, class etc.

    King had a “dream” and knew the nirvana did not arrived. King SUPPORTED affirmative action because he knew this.

    “authorizing discrimination against innocent people, can no longer be justified. Doesn’t mean the job is done, just that we can stop creating new victims in order to help the old ones”

    There might be other methods to address the problem, but I don’t see the big effort being put in place here and Brett’s small government sentiments surely won’t help.

    I also don’t see the nirvana in which suddenly the minimal efforts being done in Texas (we are dealing with a small number of slots after the 10% plan is factored in) is not necessary any more. I don’t know what nirvana solution to any major public problem where everyone wins, the solution is totally pain free.

    The likely path is that the ‘victims’ will continue. Lower expectations is often the ‘solution’ for the black students here, for instance. “Victimhood” is suddenly washed away.

    “make a serious effort to fix the reasons blacks don’t qualify in reasonable numbers without the preferences”

    Such “serious effort” is being made in various respects. It is not like AA is the ONLY thing being done. The program in Texas alone underlines the point given the 10% plan used. One reason AA is used is that it is PART of the “serious effort,” one problem is that others who didn’t have to deal with racism and its affects in the same way had more ability to get the slots.

    So, AA is used with other stuff, as but one part of the solution. Kennedy in Parents Involved supported race conscious programs. So the end here might not totally be to Brett’s liking.

  13. JoeJP says:

    Prof. Sandy Levinson in “Wrestling Diversity” had some interesting things to say on this topic, but he has a new book out, so maybe he rather you read that.

  14. Brett Bellmore says:

    My point is that, once you’ve shifted the basis for racial preferences from remediation to “diversity”, you HAVE abandoned that dream. Because while we might eventually erase every remnant of discrimination, diversity will never expire as an excuse to institute preferences if quotas are not met. Under “diversity”, the color of a person’s skin will always matter. That’s what you’re making sure is “diverse”, after all. Not life stories, or ways of thinking. Pigmentation.

    The diversity excuse was nothing more than a way to work around the nation’s highest court showing signs of thinking that the legacy of racism might eventually become too attenuated to serve as an excuse for discrimination today. It’s meant to provide an excuse for discrimination in perpetuity.

  15. Shag from Brookline says:

    The shift from remediation to diversity was more palatable to whites, including that it would be much cheaper and perhaps because diversity alone in the long run might not be enough to achieve fairness and justice for non-whites. In this regard, Nancy Leong’s “Racial Capitalism” that I had referred to at a Balkinization thread on Fisher has much to say, including on the commodification of race that might result from diversity only.

  16. JoeJP says:

    Unlike Stephen Colbert, society “sees” race and as Prof. Kerr notes, diversity itself is important because of that and continuing discrimination that Brett undersells.

    Even he talks about what “might” happen. When such discrimination is so minor that the programs in places like Texas is any sort of significant factor in continuing it instead of actually partially addressing the problem, as I noted it does, come back to me.

    As Prof. Kerr notes, though maybe if he read the right law review article he suddenly will change his mind, “pigmentation” isn’t what makes diversity useful in his classroom. It is real life experiences.

    The “reason” for diversity is in part because the Supreme Court actually accepted it as a legitimate factor. It was not just some “work around.” It supports it. Justice Kennedy, if you do it the right way, supports it. The military supports it. Big business supports it. Private groups support it. Any given church, e.g., often likes to be “diverse.” They don’t suddenly violate King’s sentiments.

    This is because of realities, not “excuses.” I’m all for recognizing societal discrimination is a reason for AA programs, in part because its honest. But, diversity matters too, particularly in learning institutions. Race still being a factor in society, that would be part of it.