It’s a very rare thing for a Supreme Court justice to look back at a major case and cast doubt on the decision.
One of the most contentious Supreme Court cases of the last decade was the decision involving the use of racial preferences by state universities seeking greater student body “diversity.” The issue in Grutter v. Bollinger was whether it was permissible for state universities to favor applicants of certain races over others. In a 5-4 decision involving the admissions procedures at the University of Michigan law school, the Court said yes, with Justice Sandra Day O’Connor writing the majority opinion.
In her view, the Constitution’s mandate that all citizens be given equal protection under the law was consistent with the law school’s policy of making a student’s race a “plus factor” in deciding which applicants would be accepted and which rejected. (The law school gave racial preferences only to those who claimed African-American, Native American or certain Hispanic ancestry.)
But how can deliberate racial preferences be squared with equal protection? Or to borrow from Orwell’s Animal Farm, if all animals are really equal, how can some be more equal than others?
Justice O’Connor and her colleagues resolved this apparent problem by saying that the state had a “compelling interest” in obtaining the educational benefits of having a more diverse student body.
I’m going to put aside the troubling point that the “compelling state interest” argument puts every constitutionally protected right of Americans at risk by reading into them an implied clause that goes, “Unless politicians think there is a really good reason for violating this right.” That is the part of the Court’s decision that Justice O’Connor ought to be rethinking, but unfortunately it is not.
What she is rethinking is whether there was a sufficient basis for concluding that student body diversity is as beneficial as the majority in Grutter assumed it to be. In a book published late last year, The Next 25 Years: Affirmative Action in Higher Education in the United States and South Africa, Justice O’Connor and one of her former law clerks, Stewart Schwab (now dean of Cornell Law School), contribute an essay in which they write, “When the time comes to reassess the constitutionality of considering race in higher-education admissions, we will need social scientists to clearly demonstrate the educational benefits of diverse student bodies, and to better understand the links between role models in one generation and aspirations and achievements of succeeding generations.”
Reassess? Clearly demonstrate?
Those words can’t be comforting to those who advocate the continued use of using racial preferences. Indeed, it is nothing less than shocking that Justice O’Connor is now admitting that this is not a firmly settled question. Wasn’t that precisely the premise that undergirded the Court’s decision? Didn’t her opinion in Grutter, stating that diversity creates important educational benefits, provide the “compelling” justification that shielded the university’s race preference policies from constitutional challenge?
Surprisingly, the answer may be “no.” Apparently the question is not settled in Justice O’Connor’s mind and the reference to the need for further research seems to acknowledge one of the dirty little secrets of the case—the justices did not undertake a careful, detailed analysis of social science evidence to reach the conclusion that there are crucial educational benefits that flow from the use of racial preferences. The truth is that the evidence on the effects of diversity was all but non-existent and the Court actually paid little attention to that point.
Larry Purdy, one of the attorneys who represented the plaintiff (and whose hard-hitting book Getting Under the Skin of “Diversity” I reviewed here) tells me that the benefits of diversity, although anecdotally littered throughout the record, were not directly litigated. In fact, the plaintiff’s side, he writes in an email, “took the position that no matter how much ‘racial diversity’ might be a good thing, which we did not contest, it was no excuse to violate the Equal Protection Clause of the Fourteenth Amendment or the plain language of Title VI of the Civil Rights Act of 1964.”
So it’s a mistake to think that the Supreme Court held some kind of great debate over the alleged educational benefits of using racial preferences to admit more students who are said to be from “underrepresented groups.” It’s true that the pro-preferences side introduced some research purporting to prove that there are great benefits, but how persuasive was that research?
University of Michigan philosophy professor Carl Cohen exposed the truth of the matter in a devastating article “Bad Arguments Defending Racial Preference,” published in ther Summer 2008 issue of Academic Questions. (That journal is not available online, but I’ll gladly send a hard copy to anyone who would like to read Cohen’s article.) Once the university knew that its preferential admission policies were going to be challenged, it ginned up some “research” by asking one of its sympathetic faculty members (Professor Patricia Gurin) to do a study it could cite for the conclusion that student body diversity is educationally beneficial.
Cohen calls that work “thin social science, tendentious and weakly argued” and cites readers to a thorough evisceration of that research by Professors Thomas Wood and Malcolm Sherman, available here. Alas, Cohen writes, “The Gurin claims and the brief of the University of Michigan were swallowed whole, on toast, by Justice O’Connor and the majority in Grutter.” Instead of applying the “strict scrutiny” that the Supreme Court has always said is essential in cases dealing with racial classifications, this time the Court was content with scrutiny that was, as Professor Cohen put it, “flagrantly superficial.” The university said there were educational benefits, and that was good enough for five justices.
Let’s suppose that Justice O’Connor is right in speculating that the Supreme Court will eventually return to this issue. If the justices are serious about evaluating the strength of the arguments pro and con (which puts them in a role outside of their legal expertise), what should they consider?
First of all, they should not bother with “research” that amounts to, as Carl Cohen says, “reporting students’ answers to shamefully loaded questions like: ‘Do you feel that diversity enhances or detracts from how you and others think about problems and solutions in classes.’” Infinitely better would be to examine actual evidence to see if, for example, there is anything to the “role model” hypothesis Justice O’Connor mentions.
My own guess is that there isn’t: Students who have grown up in a highly diverse, interconnected, media-saturated society and are bright enough to get into selective colleges are not apt to be affected in their studies by the racial composition of the faculty. I might be wrong, though. The Court could look for evidence on this, not mere supposition.
More importantly, the Court ought to consider the costs of racial preferences alongside the benefits. Otherwise, it’s committing Frederic Bastiat’s famous “broken window fallacy”, which is to say, looking only at apparent benefits while overlooking the hidden costs. Even if it’s true that there are some educational benefits from the use of racial preferences to engineer a student body that is more diverse (on the dimension of race, anyway), we should also consider any harms that result from that.
One scholar who has written about the damage that preferences do is Princeton’s Russ Nieli. In this article, I discussed a recent essay by Nieli in which he showed that there are serious (but generally overlooked) costs to college admissions policies that employ racial preferences, such as that preferences cause many minority students to coast through high school.
Reassess Grutter? Absolutely. Bring it on.