INTRODUCTION :: On occasion the Supreme Court is faced with a conflict between important public values. The two cases contesting race-conscious admissions decision-making at the University of Michigan placed the Court in just such a circumstance. The plaintiffs represented the powerful principle of color-blindness in governmental decision-making and the other side defended the equally powerful principle of racial justice. Both sides would appear in some ways to be on the side of angels. One cannot reconcile the result of the cases without acknowledging that neither principle, by itself, controls. Dr. Loury frames the conflict well:
Thus when debating the[se] questions . . . River, we are engaged in a basic argument about public values. But, just what are the principles at issue? Two normative concerns seem to be elemental in this debate:
1. To establish non-discrimination, or color-blindness, as a procedural ideal.
(People should be treated without regard to their racial identity. Race is a morally irrelevant trait.)
2. To pursue racial equality, or racial justice, as a substantive public good.
(Given a history marred by racial injustice, we should try to reduce group inequalities in wealth and power.)
Both of these concerns bear on the issue of race and ethics, but in different ways. The first looks to how people are treated in discrete encounters, affirming as a value that such treatment should not be conditioned on race. The second normative concern looks to broad patterns of social disparity between racial groups, advancing as an ethical ideal that such differences should be reduced. The first concern deals with the rights of individuals; it is process-oriented and a-historical. The second concern is motivated by the status of groups; it is focused on outcomes and rooted in history.
Professor Crump’s article is an example of legal analysis that takes little note of the context in which the Court resolves legal issues. The historical context of race in higher education, the context of race in American society, and the context of the use of race-conscious admissions processes were important factors in the decisions in Grutter v. Bollinger and Gratz v. Bollinger. The Court understood the importance of both principles and found a way to accommodate both in its decisions. It used context to hold that race-conscious admissions decision-making regimes can be constructed in a constitutional manner. Professor Crump criticized what he saw as flaws in the Court’s decision. That he comes out in the end in favor of some race-consciousness, reflects the simple but powerful concept that higher education fails society in important ways if it does not aspire to make higher education more racially and ethnically diverse. This goal is so important that colleges and universities must make concrete and effective efforts to ensure that this diversity is a reality.
The plaintiffs in the two cases against the University of Michigan pursued two alternative legal strategies in seeking to have the admissions processes found unconstitutional. On the one hand, the plaintiffs argued the Court’s constitutional jurisprudence had changed in the intervening years since the decision in Regents of the University of California v. Bakke, In the alternative, they argued that even if Bakke were still tenable, the admissions processes of the University of Michigan Law School (hereinafter Law School) and the undergraduate program at the University did not meet the standards of strict scrutiny. Strict scrutiny requires a compelling state interest in using race to discriminate when conveying a state benefit; and even if there is a compelling state interest, the state action must be narrowly tailored to achieve the goals of the compelling interest with the least interference with individual rights.
Opponents of race-conscious admissions and commentators, like Professor Crump, either miss or dismiss a critical guiding precept in the way the Court applied strict scrutiny in these two cases. That precept is that context matters, and that, in the context of higher education, the Court looks differently at matters of race. Justice O’Connor makes this very point early in her opinion for the majority of the Court. The Court has long held that higher education holds a place of special importance in American society. Colleges and universities derive autonomy from the First Amendment in determining curriculum, faculty hiring and student selection.
In his article, Professor Crump does what law professors do. He picks apart the logic of the opinion of the Court in these cases. His approach is a useful pedagogical approach to teaching constitutional jurisprudence. He purports to, in the end, come out in favor of some race-conscious admissions decision-making. He also believes that the decision in Grutter permits too much “Unchecked Discretion.” For advocates of diversity in higher education, friends like Professor Crump are cold comfort. The thrust of my response, like Justice O’Connor’s majority opinion, is that “[c]ontext matters.” When a college, university, or professional school sets out to establish an admissions policy and a process for implementing the policy, there are many variables that influence both the policy and the decision-making process. The Court in Grutter took note of the complexity of both developing and implementing an admissions policy.
I write from the perspective of someone who had a real stake in the outcome in Grutter. This Article is written from the perspective of an admissions professional who, for more than twenty years at three different law schools, has helped shape admissions policies, recruited applicants, read tens of thousands of law school admissions applications, debated in admissions committee meetings the various arguments for and against the admission of real candidates, and observed the results of the admissions process played out by actual students during their law school and professional careers.
Context matters when considering these two cases. Professor Crump makes the mistake of placing the focus only on how race could play out in admissions decision- making. His focus is on potential issues and how they fit into strict scrutiny analysis in individual cases. Professor Crump is right to observe some of the potential problems and to question their role in the process. However, by looking at admissions decision-making as a dynamic process, it becomes clear that admissions decision-making on each candidate’s application cannot reasonably be elevated to a constitutional conundrum; to do so would paralyze the decision-making process. A careful review of the way the Law School actually developed and implemented its admissions policies puts the Court’s reasoning into a context that helps us understand how the Court found a compelling interest for the diversity the Law School sought.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital