Law Class Notes
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.
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
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.
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
Court seems to say that
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
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
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
The Court says that affirmative action programs must have sunset provisions or periodic reviews.