Peter Wood is trying to squeeze out of Grutter and Seattle all the stringency and circumscription regarding the use of race preferences that is possible. He is right to do so but we shouldn’t kid ourselves. Grutter found for diversity as a constitutional principle and Seattle upheld that to some extent. In opposition to the idea that Michigan’s law school admissions process was “narrowly tailored,” Kennedy’s dissent in Grutter argued that the process was actually a quota system, and he showed how each minority was admitted in proportion to its presence in the applicant pool, despite the smokescreen of needing “critical mass.” “Critical mass” depended not on some general idea of the number of students needed to form a reasonable representation, but on the proportion of the minority in the applicant pool. In the case of at least one group, it was only a handful of students.
Do I recall after Ward Connerly’s victory in Michigan that there were predictions that we were hearing the death knell of affirmative action? Do those who made those predictions still think so?