Tuesday, July 01, 2003
Put simply, enrolling a critical mass of minorities merely to assure that a percentage of the entering class consists of members of preferred racial/ethnic groups is patently unconstitutional. So it is imperative that the institution be able to demonstrate educational benefits flowing from student-body diversity. (Note that the burden is not on the school to show this in the first instance, but it must be able rebut a showing that the benefits are specious.)Kirsanow shows that this creates three problems. First, you need to show that a critical mass in fact creates benefits for the preferred groups, a claim already shown to be dubious. Second, why one group over another? Why not Hispanics rather than blacks? What about native Americans? Third, race can't be a plus factor -- this creates huge costs for admissions offices.
This is the most frustrating part of the Michigan case. As a seemingly exasperated Scalia notes, the issue of alleged educational benefits was not truly contested in Grutter. The Court simply took UM's data in support and ran with it. Had there been a real battle of rival data on this issue, the outcome in Grutter � including the holding that diversity is a compelling state interest � may well have been different. But while frustrating, it is also reason for optimism.
Justice Scalia states that a court may question whether in a particular setting any educational benefits flow from diversity. Simply because a court grants deference to a university's academic determination does not mean a wholesale abdication of judicial review follows. This is the most glaring vulnerability of the Michigan-style programs.
But the money point is this:
A college's assertion that diversity promotes cross-cultural understanding, breaks down racial barriers, and inspires more lively classroom discussions fails if the college provides separate housing for minority students, sponsors minority-exclusive organizations, holds separate graduation ceremonies for minorities, or conducts minority-only orientation programs. Moreover, an argument could be made that racialist courses masquerading as serious ethnic studies and attended almost exclusively by students of a particular ethnicity undermine the college's stated educational benefits. Even separate tracks for employer recruitment (minority career days) or preferences for positions on a law journal may be problematic. Standing alone, none of the above may rescind the presumption of good faith, but cumulatively they spell trouble.I've not spent much time on the Michigan cases on this site because I have been unclear if they're the Armageddon some have suggested. Kirsanow's timely article makes me more confident that the Supremes have not given our opponents a victory, but rather a Trojan horse. It helps for me to be overseas and not see the news coverage you are apparently seeing in America. For those who like this site's point of view, I'd urge you to sit back and look at this thing a little more dispassionately, perhaps from the lake cabin, and see that the glass is half-full, maybe three-quarters.
Comments that I am a silly optimist are invited.