August 17, 2005, 8:06 a.m.
Grutter’s Life
John Roberts might make the call.

By Peter Kirsanow

Most of the commentary surrounding the impact of John Roberts's confirmation to the Supreme Court involves Roe v. Wade. But regardless of Roberts' position on Roe, his addition to the Court won't affect the current pro-Roe majority (Breyer, Ginsburg, Kennedy, Souter, Stevens). This isn't to say that the addition of a justice who might consider Roe bad law won't have any impact on abortion law. But it won't provide a numerical majority for overturning Roe.

Another poorly reasoned case is far more vulnerable to challenge: Grutter v. Bollinger, the case upholding the University of Michigan Law School's use of racial preferences in admissions. The Grutter majority consisted of Breyer, Ginsburg, Souter, Stevens and O'Connor — the latter writing the majority opinion. With O'Connor gone, whoever replaces her could decide whether Grutter survives.

The Grutter Court held that the University of Michigan Law School's preferential admissions policy passed the two prongs of strict scrutiny: (1) the policy furthered a compelling state interest (i.e., the educational benefits UM derived from a diverse student body); and (2) was narrowly tailored to serve that interest. Race was supposedly only a flexible "plus" factor in the admissions process.

A close examination of the facts and rationale in Grutter, however, shows that the continued use of racial preferences in college admissions rests on an extraordinarily brittle foundation. First, the Court deferred to UM Law School in articulating its compelling state interest because the First Amendment purportedly grants educational institutions broad autonomy in defining their respective missions. The Court therefore gave UM a presumption of good faith in discharging its mission. UM maintained that the educational benefits flowing from diversity are: (1) the promotion of cross-cultural understanding; (2) breaking down racial stereotypes; (3) exposure needed to prepare for the global marketplace; and (4) having more spirited classroom discussions. A "critical mass" of minorities allegedly is necessary to achieve these benefits.

The next plaintiff who challenges a preferential admissions policy can render a college's good faith in articulating its interest suspect in a number of ways: by showing that (a) the college's critical mass of minorities does not, in fact, produce the educational benefits described above; (b) the college prefers one underrepresented minority more than another — suggesting that the college is engaging in unlawful racial balancing; (c) the college encourages, supports, or ratifies racial/ethnic separatism; or (d) the college fails to include all minorities — such as Asian Americans who are often discriminated against — in the calculation of critical mass. A number of critical studies strongly dispute the claim that there are any educational benefits flowing purely from diversity. And at least one study suggests that employing racial preferences to produce diversity actually harms its intended beneficiaries.

A plaintiff also may successfully attack the narrow tailoring prong of strict scrutiny, thereby showing that the preference accorded on the basis of race/ethnicity is more than a mere "plus." The Court prohibits colleges from using race or ethnicity as the predominant or decisive factor in admissions. But there's considerable evidence that in many, if not most elite college admissions programs, race isn't a mere tie breaker when all else is equal, or just a thumb on the scale. For if race/ethnicity were only a "plus" factor rather than an exponent, many colleges couldn't remotely approach their desired diversity levels.

The evidence is irrefutable that if race/ethnicity were not the decisive factor in admissions, few blacks, Hispanics, and Native Americans would meet an elite law school's admissions threshold. Just a few years ago, University of Texas Law School professor Lino Graglia noted that the median GPA and LSAT percentiles for admittees to the country's most elite law schools was 3.8 and 98, respectively. At that time, fewer than 20 black law-school applicants in the entire country met those standards. Consequently, it would be utterly impossible to have a diverse student population unless race was the overriding factor. (A Center for Equal Opportunity analysis showed that the Michigan admissions process preferred black applicants over similarly situated white applicants by a factor of 174:1. Race was not a thumb on the scale, but rather an anvil.)

Ordinarily, a Supreme Court decision regarding a particular issue is a powerful deterrent to future litigation. But Grutter's manifest infirmities are an open invitation to additional challenges to racial preferences. The likelihood that another preference case will be litigated is, therefore, better than average.

Enter John Roberts. Proponents of racial preferences have been reading Roberts's memoranda, briefs, and opinions like tea leaves, attempting to divine how he'd vote on the next challenge to racial preferences. The evidence is inconclusive, but hardly encouraging for the preference crowd.

Some have noted that his memoranda while at the Justice Department express disapproval of preferences and quotas and support for colorblind employment practices. But those memoranda were written in his capacity as counsel and don't necessarily reflect his personal views.

As an advocate, Roberts argued both for (Rice v. Cayetano) and against (Adarand Constructors v. Peña) racial preferences. Of course, those cases didn't involve preferences in college admissions where the First Amendment deference granted by the Supreme Court arguably affords colleges an advantage over other practitioners of preferential policies.

During a 1995 McNeil/Lehrer News Hour interview, Roberts expressed skepticism about the proprietary of racial preferences, but spoke favorably of outreach programs, i.e., affirmative action as it was originally constituted before it metastasized into preferences and set asides. Roberts supported an aggressive search for all available talent regardless of race and a vigorous enforcement of antidiscrimination laws. He didn't, however, eliminate the possibility that some racial classifications could survive strict scrutiny. (The subject of the interview was preferences in government contracting.)

Perhaps the best gauge for determining how Roberts would rule on racial preferences is the manner in which he approaches all cases: by applying the relevant law to the specific facts of the case before him and exercising judicial restraint in the process. Roberts would probably agree with Thomas Sowell who observed that "[t]oo many people today judge court decisions by whether the court is 'for' or 'against' this or that policy. It is not the court's job to be for or against any policy, but to apply the law." One thing's fairly certain — using that approach, even if Roberts were to uphold preferences in a particular admission program, he wouldn't then give it an arbitrary 25-year timetable to succeed.

— Peter Kirsanow is a member of the U.S. Commission on Civil Rights and an attorney in Cleveland, Ohio. These comments do not necessarily reflect the position of the commission.

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