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
I. Affirmative action in collegiate admissions:
the evolution from remedy to diversity
The history of affirmative action in higher education demonstrates the tension between the remedial and diversity rationales for race-conscious admission programs. Affirmative action programs in higher education began in recognition that the era of legally enforced racial isolation attacked in Brown had consigned most black children to schools that did not provide adequate preparation for entry into higher education and in neighborhoods and social settings that did not provide incentive, direction, support, and reward for academic effort. Colleges and universities began to engage in differential patterns of recruitment in order to attract black applicants who would not have surfaced through the usual channels of communication and recruitment employed by admissions officers. Educators quickly realized that they often needed to apply differential standards to the applicants yielded by these efforts, precisely because of the educational disadvantages under which they had labored as children and adolescents. Admissions officers employed the criterion of race, to the advantage of these applicants, precisely because race had been employed, to their disadvantage, by the legal regimes under which they grew into maturity and by the institutions to which their educational development had been entrusted. For the victims of those regimes, specific remedial orders to dismantle those practices-if they came at all-came far too late.
The goal of those early affirmative action programs was thus frankly remedial. Educators had several motivations for undertaking such remedial programs. In some cases, educators were seeking to reverse the effects, or perceived effects, of a history of de jure, or at least de facto, discrimination against blacks practiced by their own institutions or by the systems of higher education of which their institutions were a part. More generally, however, many educators undertook such measures out of a belief that the mission of higher education is centrally and fundamentally "remedial." That is, higher education is one of the primary vehicles in this society for helping each generation realize its potential and prepare for full participation in civic life. When a group of people has been denied, on account of their race, opportunities widely deemed necessary for educational development, it is natural for educators to give special attention to members of that race in carrying out their mission. For many educators a sense of moral obligation or ideological commitment must have contributed to the willingness to incur the costs of affirmative action programs, as well.
Beginning in the late 1970s, however, the smooth road that led from Brown to race-conscious affirmative action programs in higher education became increasingly bumpy and circuitous. The explanation lies in several more or less simultaneous and mutually reinforcing developments. First, the achievement gap between blacks and whites did not close quickly, as had been anticipated, but persisted despite massive attempts to desegregate previously segregated elementary and secondary schools and raise the academic quality of those schools most disadvantaged. Roughly two generations since Brown, the academic achievement and aptitude of blacks, as measured by grades and test scores, continues to lag noticeably behind those of non-blacks. Most troubling, and puzzling, is the fact that this gap persists even to the extent that one holds constant socioeconomic differences between the two groups. On average, middle-class and upperï¿½middle-class blacks perform at a significant deficit behind their white peers. As a consequence, preferential recruiting and selection practices, adopted as transitional correctives, became enduring features of higher education admissions. Further, preferential practices designed initially to be applied primarily to minorities from educationally and socially disadvantaged backgrounds began to be applied widely to minorities from the middle and upper-middle classes as well.
Second, pressures mounted to expand affirmative action practices in education (as in other walks of life) to other racial and ethnic groups, which had been, to varying degrees, subject to either de jure or de facto discrimination or to other forms of social disadvantage. The expansion of benefited groups diminished the remedial focus and, to some extent, the moral clarity of the original affirmative action programs. Third, competitive pressures caused a gradual increase in the extent and intensity with which preferential standards were applied. Once schools like Harvard, Yale, and Princeton, at the top of the academic pecking order, adopted relatively ambitious race-conscious preferences, schools at the next lower competitive rungs found that they had to follow suit in order to achieve any reasonable degree of racial diversity in their student bodies. Thus, the so-called phenomenon of academic "mismatch" became very nearly universal, at least in the selective tier of higher education.
Finally, and most significantly for our current purposes, the rationale for affirmative action shifted from remediation to diversity. One reason for this rhetorical shift was the expansion in the range of racial and ethnic groups receiving preferences. But the primary reason was the growing hostility to remedial justifications for affirmative action programs expressed by an increasingly conservative Supreme Court. The watershed event in this evolution was the Bakke decision, in which a deeply divided Court had ruled that the medical school of the University of California at Davis could not set aside 16 of the 100 seats in its entering class for members of minority groups. The decision produced six opinions, none of which commanded a majority of the Court. The decisive opinion was Justice Powell's, in which he spoke only for himself. Powell began by asserting that, because the Equal Protection Clause protects individuals and not groups as such, its protections extend equally to members of every race, not simply "minority" or "disadvantaged" races. Race is therefore an inherently "suspect" classification, whose use can be justified only if "narrowly tailored" to serve a "compelling state interest." The use of race to remedy general societal discrimination, he said, is not a "compelling state interest" at least in the absence of any finding that the particular defendant itself had discriminated in the past or that a competent legislative body had determined that its race-conscious admission policy was necessary to remedy past discrimination. The "attainment of student diversity," by contrast, is a "compelling state interest," said Justice Powell, but only if pursued in a highly individualized fashion in which race is treated as only one among many "diversity"-promoting factors. The Davis set-aside system, he concluded, was not narrowly tailored to serve that goal because, in filling the medical school's "quota" for minorities, the school focused only on the racial dimension of diversity.
In a series of cases striking down affirmative action programs in employment and government contracting, the Supreme Court soon adopted Justice Powell's position that societal remediation could not serve as a justification for race-based classifications, no matter how assertedly benign. Nor, said the Court in Wygant, could the so-called "role model theory" provide a justification for minority hiring preferences. Educators intent on granting race-based admissions preferences were left with Powell's "diversity" rationale. Although its status as doctrinal authority was weak to begin with, and further weakened by the Court's later pronouncements, the Powell diversity rationale seemed to be the only game in town for educators intent on defending their practices against mounting legal attacks. Educators across the country began to shift their rhetorical posture from remedy to diversity. Admissions programs were rewritten and restructured to emphasize the educational virtues of multiracial, and indeed multidimensional, diversity. The arguments advanced by the University of Michigan in Grutter and Gratz are typical expressions of this rhetorical shift.
Grutter's most important doctrinal accomplishment was to affirm Powell's diversity rationale. Six members of the Court-the five Justices joining the majority opinion plus Justice Kennedy-explicitly endorsed that principle. Grutter thus can be viewed as completing the transformation in justificatory practice from remediation to diversity. As such, it provides both an occasion, and a vehicle, for assessing the wisdom of the transformation. As I will attempt to demonstrate, the diversity rationale advanced by the Court does not hold up to "strict scrutiny." In failing that test, it reminds us of the wrong turn made by the Court in 1978.
 On the origins and history of affirmative action, see John David Skrentny, The Ironies of Affirmative Action: Politics, Culture and Justice in America (1996)
 See Feinberg, supra n. 19, at 7-8.
 A particularly ironic example is the University of Texas, whose racially separate law school system was found to violate the Equal Protection Clause in Sweatt v. Painter, 339 U.S. 629 (1950), and whose law school's subsequently adopted race-conscious affirmative action plan was found to violate the Equal Protection Clause in Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. Denied, 518 U.S. 1033 (1996).
 For an argument that the University of California system of higher education was guilty of discriminatory practices that could justify adoption of a specific remedial affirmative action policy, see Richard Delgado & Jean Stefancic, "California's Racial History and Constitutional Rationales for Race-Conscious Decision Making in Higher Education," 47 U.C.L.A. L. Rev. 1521 (2000).
 See Christopher Jencks & Meredith Phillips, eds., The Black-White Test Score Gap (1998).
 For example, over the past 10 years, the average combined SAT score of African Americans has improved from 850 to 857. But the average score of whites has increased from 1037 to 1063, and the average score of Asian Americans has increased from 1042 to 1083, thus increasing the gap. See June Kronholz, "SAT Scores Are Highest Since 1974," Wall St. J. Aug. 27, 2003.
 See Michael Winerip, "Invisible Race Gap Amid Affluence," Wall St. J., June 4, 2003, at A29.
 Bowen and Bok report that, of the black students enrolling in their sample of selective colleges and universities in 1989, most of whom benefited from those colleges' affirmative action programs, 86 percent came from either middle-income or upper-income families. William G. Bowen & Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions 48-49 (1998).
 See Stephan Thernstrom & Abigail Thernstrom, America in Black and White: One Nation Indivisible 386-422 (1997).
 438 U.S. at 307-11.
 See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Adarand Constructors, Inc. v. Pena, 515 200 (1995).
 "[T]oday we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions." 539 U.S. at (slip op. at 13). Justice O'Connor's opinion was joined by Justices Breyer, Ginsburg, Souter, and Stevens.
 "The opinion by Justice Powell, in my view, states the correct rule for resolving this case. . . . Our precedents provide a basis for the Court's acceptance of a university's considered judgment that racial diversity among students can further its educational task, when supported by empirical evidence." 539 U.S. at (Kennedy, J., dissenting) (Kennedy slip op. at 1).