Colin S. Diver’s speeches, letters, and articles
University of Illinois, October 2, 2003
From equality to diversity: The detour from Brown to Grutter
Remarks of Reed College President Colin Diver*
This year we celebrate the fiftieth anniversary of Brown v. Board of Education,[1] at once one of the most important[2] and enigmatic[3] documents in our constitutional history. As if to mark that anniversary, this past June the Supreme Court decided a pair of cases dealing with one of the most contentious issues of the post-Brown era-namely, the legality of so-called "reverse discrimination" or "affirmative action." In Grutter v. Bollinger[4] and Gratz v. Bollinger[5] the Court revisited, for the first time since its 1978 decision in Regents of the University of California v. Bakke,[6] the issue of whether the use of race as a criterion for admitting students to an institution of higher education violates the Equal Protection Clause of the Constitution[7] and Title VI of the Civil Rights Act of 1964.[8]
In Grutter, the Court, by a narrow 5-4 majority, upheld a race-conscious[9] admissions program employed by the University of Michigan Law School. The Court held that the law school's asserted goal of "attaining student body diversity" was a "compelling state interest" sufficient to justify its practice of giving favorable weight to an applicant's self-identified status as an African American, Latino, or Native American. Further, the Court found that the law school's "holistic" method of considering each applicant's race along with other academic and nonacademic[10] variables satisfied the Equal Protection Clause's requirement of "narrow tailoring." By contrast, in Gratz, six members of the Court ruled against a much more formulaic system used to rank applicants to the university's undergraduate college. This system assigned an automatic 20 points-out of a possible 150 and roughly 100 needed for admission[11] -to members of those same minority groups. Although the formula also awarded points for a number of other academic and nonacademic characteristics, such as athletic ability, socioeconomic disadvantage, Michigan residence, service, and alumni relations, the Court found that the undergraduate policy failed to accord applicants a sufficiently "individualistic" appraisal. Race, it concluded, received decisive weight in too many cases.
Grutter and Gratz were decided just 49 years after the Term in which Brown was decided-and almost 50 years to the day after the Supreme Court ordered reargument in the case.[12] Curiously, Brown is cited only three times in the thirteen opinions filed in the two cases. Justice O'Connor cites Brown in her opinion for the Court in Grutter for the rather mundane point that "education . . . is the very foundation of good citizenship."[13] Justice Ginsburg cites Brown twice: once in her Grutter concurrence, to remind readers of the relatively short period of time that has transpired since the outlawing of de jure segregation[14]; and once in her Gratz dissent, to support her argument that there is a moral and constitutional difference between using race for inclusive and exclusive purposes.[15] On the one had, the scant explicit attention paid to Brown in Grutter and Gratz is not surprising, given the different contexts in which the cases arose and the jurisprudential developments over the past 50 years. On the other had, it is remarkable that these decisions pay so little homage to Brown, given its iconic, monumental status in the law and politics of American race relations.
The temporal coincidence naturally invites one to speculate on the relationship between Grutter[16] and Brown. On the one hand, one can view Grutter as honoring the spirit of Brown. In the view, the affirmative action policies upheld in Grutter are part of pervasive social practices designed to carry out the remedial mission launched by Brown II[17] and its progeny to remove the noxious growth of racial segregation "root and branch."[18] On the other had, one might view Grutter, with its legitimation of state-sponsored racial discrimination, as deeply at war with the spirit of Brown. Where Brown was universalistic, Grutter is particularistic. Where Brown was colorblind, Grutter is color-conscious, even color-preoccupied.
Which of these two views is correct? My argument is that both views contain elements of truth. Judged by its reasoning, Grutter is indeed in tension with the spirit of Brown. But, judged by its result, Grutter can be viewed as compatible with Brown. The key to unraveling my argument is the distinction drawn in the cases, and in the voluminous literature on affirmative action, between the concepts of diversity and remediation. Adopting more or less whole cloth the reasoning of Justice Powell in Bakke, the Grutter majority upholds the use of race-conscious admissions criteria as a means of promoting the goal of educational diversity, while rejecting its use as a means of remedying past societal discrimination. As I will attempt to demonstrate, diversity is the weaker of the two arguments, and its adoption in Grutter completes an unfortunate detour, begun in Bakke, from the remedial logic of Brown. Shorn of any remedial connotations, diversity cannot provide a sufficiently persuasive justification for the particular practices at issue.[19] We would be better off by giving up the diversity rationalization and forthrightly adopting a suitably constrained remedial justification.
* President, Reed College; Charles A. Heimbold, Jr., Professor of Law and Economics Emeritus, University of Pennsylvania. I want to express my thanks to Dena Hutto of the Reed College library for her diligent research assistance.
[1] 347 U.S. 483 (1954).
[2] Examples from the voluminous literature on the history and impact of Brown include David Armour, Forced Justice: School Desegregation and the Law (1995); Lino A. Graglia, Disaster by Decree (1776); Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (1994); Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black American's Struggle for Equality (1976); Raymond Wolters, The Burden of Brown: Thirty Years of School Desegregation (1984).
[3] For a sampling of the debate over the proper interpretation of the Brown decision, see Alexander Bickel, "The Original Understanding and the Segregation Decision," 69 Harv. L. Rev. 1 (1955); Charles Black, "The Lawfulness of the Segregation Decisions," 69 Yale L.J. 421 (1960); Owen M. Fiss, "Racial Imbalance in the Public Schools: The Constitutional Concepts," 78 Harv. L. Rev. 564 (1965); Louis Pollak, "Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler," 108 U. Penn. L. Rev. 1 (1959); Herbert Wechsler, "Toward Neutral Principles of Constitutional Law," 73 Harv. L. Rev. 1 (1959).
[4] 539 U.S. (2003).
[5] 539 U.S. (2003).
[6] 438 U.S. 265 (1978).
[7] U.S. Const., Amend. XIV, cl. 1.
[8] 78 Stat. 252, 42 U.S.C. �2000d. Title VI prohibits recipients of federal grants from engaging in discrimination on the basis of race and other characteristics. The Supreme Court has consistently held that the prohibition against racial discrimination in Title VI is co-extensive with the prohibition against racial discrimination derivable from the Equal Protection Clause, a position explicitly reaffirmed by the Court in Grutter. 539 U.S. at (slip op. at 32). For this reason, Grutter and Gratz apply to most private as well as all public institutions of higher education.
[9] I use the terms "race" and "racial" primarily for reasons of expositional convenience, well aware of the fact that most of the groups benefited by affirmative action are not, in a classical sense, a race, and also aware of current doubts that the classical concept of race has any biological, genetic, or even genealogical coherence.
[10] By "nonacademic," I mean other than scores on applicable aptitude tests (the LSAT, in the case of the law school, the SAT or ACT in the case of the college) and evidence of academic performance (usually grade point average or rank in class) in previous academic work.
[11] Indeed, most applicants with a score of 90 were admitted.
[12] Brown was argued on December 9, 1952. On June 8, 1953, a deeply hesitant and divided Court ordered briefing and reargument of several questions related to the historical understanding of the meaning of the Equal Protection Clause and the possible remedial consequences of a declaration of unconstitutionality. 345 U.S. 972 (1953). Reargument was held on December 8, 1953, and the case was decided on May 17, 1954. Grutter and Gratz were decided on June 23, 2003.
[13] 539 U.S. at (slip op. at 19), quoting from Brown, 347 U.S. at 493.
[14] 539 U.S. at (Ginsburg, J., concurring (Ginsburg sli op. at 2) (responding to the Court's rather odd exhortation that the use of race in admissions should end in 25 years, by noting how brief a time had elapsed since de jure segregation was finally struck down in Brown).
[15] 539 U.S. at (Ginsburg, J., dissenting)(Ginsburg slip op. at 4) (rejecting the notion that there is a moral equivalency between the issues presented in Bakke and in Brown).
[16] For ease of exposition, I will henceforth refer only to Grutter, since it is the first and more important of the two decisions, and will mention Gratz only when referring to its specific holdings or opinions.
[17] Brown v. Board of Education of Topeka, 349 U.S. 294 (1955).
[18] Green v. School Bd. of New Kent County, 391 U.S. 430, 438 (1968).
[19] Several commentators, writing before the decisions in Grutter and Gratz, have expressed similar doubts about the persuasiveness of the diversity rationale. See, e.g., Walter Feinberg, On Higher Ground: Education and the Case for Affirmative Action (1998); Paul Gewirtz, "The Triumph and Transformation of Antidiscrimination Law," in Austin Sarat, ed., Race, Law and Culture: Reflections on Brown v. Board of Education 110 (1997); Sanford Levinson, 1999 Owen J. Roberts Memorial Lecture: Diversity, 1 U. Penn. J. Const'l L. 573 (2000); Peter H. Schuck, "Affirmative Action: Past, Present, and Future," 20 Yale L. & Policy Rev. 1 (2002).