Court’s squishy language should allow conservatives to join the campus debate

Conservatives willing to brave the touchy-feely miasma of the Supreme Court’s recent decision of Grutter v. Bollinger, which allows universities to consider race in admissions as an element of diversity, should be heartened by the ruling, flawed as it is. Here’s why.

The majority opinion, written by Justice O’Connor, contains salient reasoning for a greater campus presence for conservatives. The Court downplayed the original justification for race-preferential policies, “remedying past discrimination” (p. 15), in favor of the educational benefits of diversity. By defining diversity broadly, rather than narrowly constricting it to race, however, the Court has also made the case for more equitable campus treatment of conservative students, faculty, thinkers and ideas.

The Court held that the University of Michigan Law School, and by extension all universities, have “a compelling interest in attaining a diverse student body” (p. 16). In doing so, it reaffirmed the educational value of a “robust exchange of ideas” (p. 17) on campus. It praised the Law School for considering “divers[ity] in ways broader than race” (p. 28), i.e., “all pertinent elements of diversity” (p. 29).

Conservatives should embrace this laudable distinction by the Court, that diversity is broader than race and especially that it incorporates ideas. Prior to Grutter such distinction was scarcely made outside conservative circles. “In academic circles,” Thomas Sowell noted in 1995 in The Vision of the Anointed, academics rely on “diversity” as a “vast generality” often standing for “a quite narrow social agenda, as if those who reiterate the word ‘diversity’ endlessly had no idea that diversity is itself diverse and has many dimensions besides the one with which they are preoccupied. Advocates of diversity in a race or gender sense are often quite hostile to ideological diversity, when it includes traditional or ‘conservative’ values and beliefs.”

Indeed, a host of scholars and social critics have found that university communities tend to limit expression of conservative thought, tolerate acts by other students to quell conservative participation in campus speech, hire faculty that are almost exclusively on the political Left, and bring in outside speakers that are also disproportionately leftist. A few recent examples:

• John O. McGinnis and Matthew Schwartz reviewed all federal campaign contributions over $200 made by professors at the top 22 law schools from 1994 to 2002. As they reported in The Wall Street Journal April 2, 2003, “America splits evenly between the GOP and the Democrats, but 74% of the professors contribute to Democrats. Only 16% do so to Republicans.” Noting that “professors set the intellectual tone in university life,” McGinnis and Schwartz wrote, the “law schools almost uniformly lack a ‘critical mass’ of conservatives to offer an alternative to the reigning liberal orthodoxy.”

• Karl Zinsmeister’s study “The Shame of America’s One-Party Campuses,” published in The American Spectator September 2002, reviewed the political affiliation of faculty members at 21 elite universities and found very small (usually single-digit) proportions of faculty members affiliated with political parties of the Right. “Even the press corps aren’t this uniformly liberal,” the study prompted The Wall Street Journal to opine, on Aug. 30, 2002. “That this lack of faculty diversity eludes university administrators is especially interesting given the totality of their efforts to reorder all other aspects of campus life based on that principle.”

• A recent graduate of Indiana University School of Law, Scott M. Dillon, published and distributed nearly 500 information packets reporting on the law school’s use of separate, lower standards to evaluate minority applicants than those used for white applicants. The university’s reaction, recounted in the lead sentence to The Chronicle of Higher Education article on it (May 27, 2003), revealed the university’s priorities: “Officials at Indiana University School of Law at Bloomington defended their affirmative action efforts after a recent graduate complained that someone had stolen copies of a report that he was trying to distribute to prove that the school was lowering its standards for minority students” (emphasis added).

• Having their student newspapers stolen, being threatened by their universities with having their official status revoked, and being excluded from access to student fees are perennial problems overwhelmingly affecting student groups that are conservative. Organizations such as the Foundation for Individual Rights in Education ( and the Student Press Law Center ( keep the public up-to-date on those matters.

Those are just a few examples, although according to the reasoning in Grutter, they ought to be enough to question universities’ commitment to diversity. Suffice it to say that on many campuses conservatives are given only “token” (p. 21) representation in what ought to be a “robust exchange of ideas.” Under Grutter, however, this tokenism is a practice that simply must be stopped by any university that avers “diversity is essential to its educational mission” (p. 16). In this new environment a university cannot consider diversity “essential” if it is essential in respect to only one of the “elements of diversity.” It follows, then, that universities citing the educational benefits of diversity to justify considering race in admissions must also have a “compelling interest” (p. 16) in ensuring that conservatives have full access to the campus exchange of ideas.

What if universities argue that faculty makeup and other cited examples of token treatment of conservatives are mere coincidences or otherwise do not constitute the alleged tokenism? Conservatives should respond that such responses do not matter in the Court’s eyes. What matters is that they perceive such tokenism; i.e., they “feel isolated or like spokespersons” (p. 6) and denied “[e]ffective participation” (p. 19) because the campus is not “visibly open” (p. 20) to them.

What the Court in its wisdom found is that for the educational benefits of an element of diversity to take effect, enough individuals representing that element must be present — not just to communicate the “viewpoint” (p. 20), but also to demonstrate to those with the viewpoint that the campus is perceivably “inclusive” (p. 20). The Court has instituted an Othello standard; universities must give any isolated-feeling element of diversity the “ocular proof” that they are welcome. So there must be a noticeable “critical mass” (p. 5) of conservatives on campus for their element of diversity to be “meaningful” (p. 5) in terms of their educational contribution.

What constitutes that critical mass? Again, the judicial standard is based on feeling: “‘critical mass’ means ‘meaningful numbers’ or ‘meaningful representation’ … a number that encourages [conservatives] to participate in the classroom and not feel isolated … [but] there is no number, percentage or range of percentages that constitute critical mass” (pp. 5-6). That having been cleared up, note that without a “critical mass” of conservatives on campus, the exchange of ideas will fail to be robust. And that would be, per Grutter, un-Constitutional.