The affirmative-action cases are being overstated. Yes, rather dramatically the Supreme Court has declared for the first time that public universities may have a compelling governmental interest in promoting educational diversity, including diversity of racial experience. It is good to have public institutions readily open to all who qualify. And yes, the Court found a constitutional difference between attaining such diversity mechanically and unthinkingly with a flat 20-point windfall for favored skin color or ethnicity and individualized applicant review.
What is being missed, however, are the numerous other qualifications the Court prescribes for a constitutional diversity program — most notably, that the legal permission to take the extraordinary step of employing race is necessarily hinged on the institution being fully capable of carrying out its educational mission. In this regard, there is much in Justice O’Connor’s opinion to suggest that only the most elite educational institutions will be able to accomplish both goals and that therefore, public (and vicariously) private institutions that cannot do so are not permitted by the Constitution to shape their decisions by race.
Perhaps this essential point has been invisible to the public commentary since Michigan from the get-go declared itself to be elite and the Court agreed. Justice O’Connor specifically links approval of the Michigan law-school pursuit of a “critical mass” of minority students to the fact that the law school “ranks among the Nation’s top law schools” and that admission to such a selective institution is a prelude to power and essential to creating leaders for private and public contexts, whether politics, the military, or business.
That highly selective institutions satisfy these educational outcomes is thus what allows them to satisfy strict scrutiny and demonstrate a compelling governmental interest. It is also what allows Justice O’Connor to remain faithful to the Court’s precedents, many of which she authored, that demand nothing less. To be sure, this is obscured somewhat by the presumption of good faith that the majority gives the Michigan law school. As the dissenters point out, the presumption seems incongruous given how the factual record illustrates that minority students were admitted to Michigan with significantly lower credentials than their white and Asian counterparts. These facts lead Justice Kennedy — who states explicitly that he shares the view articulated by the late Justice Powell that race can be used in admissions as a nonpredominant factor — to believe that the majority had “abandoned or manipulated [or] distort[ed] [the] real and accepted meaning” of strict scrutiny.
While that is possible, of course, it should not be assumed that Justice O’Connor intended to overturn decades of precedent establishing that there is only one equal-protection clause, and that it applies to black and white alike, regardless of whether the government’s desired classification is said to help or hurt the particular group. There is nothing in the majority opinion to suggest that Justice O’Connor abandons “searching judicial inquiry for race-based measures” or the proposition that there is no way to determine whether classifications are “benign” or “remedial.” She cites both with approval. Instead, Justice O’Connor writes: “context matters,” and the context that matters most are the words with which she begins her opinion: in the case under review the sought-after diversity occurs within one of the Nation’s top schools.
When Justice Thomas in dissent argues that Michigan ought to be made to choose between its elite status and the diversity that it seeks, Justice O’Connor rejects that notion. She calls the prospect of lowering admissions standards, “a drastic remedy that would require the Law School to become a much different institution and sacrifice a vital component of its educational mission.” It is for this same reason that Justice O’Connor finds that the Michigan law school has acted in a “narrowly tailored” manner without having exhausted all race-neutral means to achieve diversity, as the Bush administration had urged the Court. Percentage plans and lotteries do have greater racial fairness, but the law school does not need to consider them since that would force the school “to abandon the academic selectivity that is the cornerstone of its educational mission.”
In endorsing Justice Powell’s views, the Court accepted many qualifications for the use of race in university admissions: applicant review must be on an individual basis; the process must not be a disguised attempt to achieve racial balance; and one minority racial group cannot be preferred or played off another. A faculty cannot spuriously conclude that it wants more African-Americans, say, than Hispanics. That’s not an overall critical mass of minority students but racial balancing, said the majority, which would be “patently unconstitutional.” On the last point, Justices Scalia and Thomas
actually joined the majority. But the most important qualification — and the one that makes the holding reconcilable with stare decisis — is that the permission to employ race is narrowly limited to those few educational institutions that can actually achieve diversity without sacrificing selectivity.
Of course, it will be open to debate at any given time how many universities or law schools see themselves as elite or selective, and therefore, as qualifying for this rare constitutional dispensation. Being in the educational environment, I know that each school has unique features that make it attractive, but the reality is that applicants with high grades and test scores rationally seek out places, on average, that have large endowments and the traditions and faculties which give rise to them. All sides in the affirmative- action debate also concede that for reasons that remain perplexing and intractable (and that cry out to be addressed in noncosmetic ways), far too few minority students fall within the upper ranges of the entrance exam. Of the 4,461 applicants to law school who had scores in roughly the 93rd percentile in 2002, 29 were black. About 25-30 law schools consistently and exclusively take their nonminority students from this range, and that arguably, defines the contextual universe Justice O’Connor was writing about.
The use of race, in this way, remains extraordinary: to the giving of remedy for unlawful discrimination or the achievement of diversity in highly selective places.
— Douglas W. Kmiec is presently dean of the Catholic University School of Law. He will accept the Caruso Chair in Constitutional Law at Pepperdine University in August. Dean Kmiec served Presidents Reagan and Bush (41) as head of the office of legal counsel.