Constitutional Law Class Notes 3/31/04

More on Grutter

Yesterday, we talked about the law schools’ interest in having a diverse student body, both in terms of classroom diversity and the workplace diversity that is thought to follow.

We also discussed the interest of the legitimacy the government. It is claimed that minority groups won’t see the government as legitimate if they feel like the paths to power aren’t open to them. We talked about this in the context of the amicus brief from former military officers. It could apply just as well to other institutions. The notion here is that the minority communities in America won’t trust the government if it doesn’t include minorities. This helps explain why the Court feels that the state’s interest is compelling in this case. They seem to feel that the whole stability of the government is at stake. The Court feels that we cannot survive as a society unless we make legal education available to everyone.

That’s the first part of the analysis. That’s the university’s position, and the Court embraces it. Next, the second part of the analysis: if we accept that diversity is a compelling state interest, why, in the university’s view, is it necessary that the law school use the admissions policy that it did in order to achieve diversity? Was making race a factor in admissions decisions the best way to do it? Why does the law school believe itself of being incapable of obtaining a diverse student body if it doesn’t make race a factor in admissions?

The university claims that if they didn’t take race into account, they wouldn’t otherwise get enough people from the various minority groups to form a “critical mass”. Nobody contests that factually. If the law school relied only on grades and LSAT scores, then they wouldn’t achieve “critical mass” or sufficient diversity. The record disclosed that if the law school relied solely on the numbers, minority representation would be only 4% of the student population rather than 12-20%. Why not abandon using the number altogether? They don’t want to abandon their elitism, apparently. They want to be prestigious and selective. How does that relate to the compelling state interest? This is part of the dissent’s argument. What if they used a lottery system? Then you would have a student body that is representative of the people trying to get admitted.

If the university’s top priority was diversity, they could have open enrollment or a lottery. But they have a higher priority on being an elite law school. The Court seems to tell us that the school is allowed to posit these “twin goals” simultaneously. They don’t just want diversity, they want to have their cake and eat it too. The only way to do both, they claim, is to use race as an admissions factor. The combination of the two goals requires and justifies the use of race as an admissions factor.

Beyond asserting that it wants to be a selective, elite law school, what underlying policy goal or social need does the law school assert to justify its selectivity as arising to the level of a compelling state interest? They don’t really give one! This is a good point made by Justice Thomas. The majority seems to say that the law school can’t achieve both of its goals at the same time without making race a factor. The majority credits this as vital, but doesn’t explain why. We don’t really know why it is such a compelling interest to have an elite law school as a state law school. They seem to say that there must be open access to elite law schools because those law schools are the paths to power in this country. But even if Michigan didn’t have an elite law school, there would still be elite law schools that are private and thus not bound by the Equal Protection Clause (like Harvard, Yale, and Stanford). But there’s also part of the Civil Rights Act that tracks the requirements of the Equal Protection Clause. If it were unconstitutional for Michigan to do what it did, it would be illegal by statute under Title VI for Harvard to do what it did.

The Court seems to say that Michigan wants to pursue two goals. But it isn’t explained why Michigan has these two goals. It seems to be based on the notion that we will have highly selective law schools in American society, and some of them will be public schools and we need to make sure that there is open access to them. Let’s stipulate that strict scrutiny applies in this case. Ginsburg believes that you shouldn’t have strict scrutiny in an affirmative action context, but that’s not the view of the majority. But under any level of scrutiny, you must look at (1) the goal, and (2) the means and its relationship to the goal. The use of race as an admissions factor would not be justified based on either of those goals alone. If the university only wanted to consider diversity, they wouldn’t need to consider race, and if the university only wanted to have selective admissions, they wouldn’t need to consider race either.

Diversity is a laudable goal, but you don’t need to make race a factor in order to have diversity, because you could have a lottery instead. It’s only the intersection of the goals of diversity and selectivity that justifies the consideration of race in admissions. But even taking these two goals as compelling, why is it necessary for Michigan to use racial background as an admissions factor to achieve those goals? There are lots of “soft variables” that have nothing to do with race that would not be considered under strict scrutiny. You could look at leadership potential, for example.

The argument was made by the plaintiff that you don’t have to consider race as an admissions factor at all for any applicant and maintain selectivity if you use “soft factors” in a sophisticated way. It is argued that you can achieve all the goals that you want to as long as you don’t rely on actual skin color. The University of Michigan asserted that it could not achieve its twin goals without using race the way it did. But the plaintiffs never presented an evidentiary case to challenge this assertion. The main strategy of the plaintiffs was to dispute diversity as a compelling goal. They hoped that a majority of the Court would reject the contention that diversity could count as a compelling interest. Then their second line of attack would be to show by statistics that the way race was used here was tantamount to a quota and too rigid. But they didn’t take on the other point: assuming the law school is not operating a quota system, but rather a system of “soft factors”, is race a necessary one of those factors?

Boalt Hall has been prohibited from using race as a factor in admissions due to Proposition 209. Initially, the number of minority students at Boalt Hall plummeted drastically, just like Michigan was predicting here. When this lawsuit was first litigated, that was the scenario that Boalt Hall was operating on. However, somehow it turns out that in the last couple of years, Boalt Hall still can’t look at race, but somehow has gotten its minority enrollment back to the levels it was at prior to Proposition 209. They claim that they use a combination of hard factors and non-racial soft factors. The plaintiff, in its reply brief, cites Boalt Hall as an example of how to achieve classroom diversity without considering race explicitly.

The Court says that affirmative action programs must have sunset provisions or periodic reviews.

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