Affirmative action in higher education: The diversity rationale and the compelling interest test

Harvard Civil Rights-Civil Liberties Law Review

Volumn 33, Issue 2, 1998, Pages 380-441

  Liu, Goodwin ^a,b,c  

^a STANFORD UNIVERSITY   (United States)

^b UNIVERSITY OF OXFORD   (United Kingdom)

^c YALE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 11544285217     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (315)

1. Regents of Univ. of Cal. v. Bakke. 438 U.S. 265,311-15 (1978) (opinion of Powell, J.) (declaring that the goal of achieving the educational benefits of a diverse student body is sufficiently "compelling" to justify the use of race as a factor in university admissions).
2. See, e.g., Samuel L. Myers, Jr., Why Diversity Is a Smoke Screen for Affirmative Action, CHANGE, July-Aug. 1997, at 25, 26-27: Clifford Adelman. Diversity: Walk the Walk, and Drop the Talk, CHANGE, July-Aug. 1997, at 34, 36-40.
3. See, e.g., Samuel L. Myers, Jr., Why Diversity Is a Smoke Screen for Affirmative Action, CHANGE, July-Aug. 1997, at 25, 26-27: Clifford Adelman. Diversity: Walk the Walk, and Drop the Talk, CHANGE, July-Aug. 1997, at 34, 36-40.
4. In 1996. for example, California voters passed a constitutional amendment outlawing racial and gender preferences in all areas of governmental activity, including higher education. See CAL. CONST, art. 1, § 3 31 a); see also Coalition for Econ. Equity v. Wilson, 110 F.3d 1431 (9th Cir.) (upholding this provision under the Equal Protection Clause), cert, denied, 118 S. Ct. 397 (1997).
5. Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir.), cert, denied, 116 S. Ct. 2581 (1996).
6. In this Article, I use the term "affirmative action" to mean any preference in university admissions given to an otherwise qualified candidate on the basis of her or his membership in a racial or ethnic minority group. In addition. I use the term "racial preference" interchangeably with affirmative action. Although not all affirmative action efforts involve preferences. I shall focus on preferences in order to address squarely the type of affirmative action that is most controversial. Moreover, although I focus on racial preferences, I recognize that there is a distinction between race and ethnicity. But because that distinction is not relevant for my argument, I subsume ethnicity under race for simplicity. While there is a perception that affirmative action is a widespread practice in higher education, a recent study shows that race is an admissions factor only at the most elite colleges and universities. Race plays little or no role in admissions at the less exclusive institutions attended by 80% of the nation's four-year college students. See Thomas Kane. Racial and Ethnic Preferences in College Admissions 2 (Mar. 1997) (unpublished manuscript. Harvard University) (on file with author).
7. In two possible test cases, white applicants rejected by the University of Michigan and the University of Washington Law School have filed suit in federal district courts, claiming that educational diversity is not a sufficient justification for race-conscious admissions policies under the Equal Protection Clause. Both of these suits have been brought by the Center for Individual Rights, the organization that represented the plaintiffs in Hopwood, as an explicit effort to outlaw affirmative action. See Ethan Bronner. Group Suing U. of Michigan Over Diversity, N.Y. TIMES. Oct. 14, 1997, at A24; Douglas Lederman, Suit Challenges Affirmative Action at U. of Wash., CHRON. HIGHER EDUC., Mar. 14, 1997, at A27.
8. In two possible test cases, white applicants rejected by the University of Michigan and the University of Washington Law School have filed suit in federal district courts, claiming that educational diversity is not a sufficient justification for race-conscious admissions policies under the Equal Protection Clause. Both of these suits have been brought by the Center for Individual Rights, the organization that represented the plaintiffs in Hopwood, as an explicit effort to outlaw affirmative action. See Ethan Bronner. Group Suing U. of Michigan Over Diversity, N.Y. TIMES. Oct. 14, 1997, at A24; Douglas Lederman, Suit Challenges Affirmative Action at U. of Wash., CHRON. HIGHER EDUC., Mar. 14, 1997, at A27.
9. In the wake of Hopwood, Texas universities have removed any consideration of race in their admissions processes - with devastating results for minority students. For example, only three black and 20 Hispanic students put down deposits at the University of Texas Law School for the 1997-98 school year. In contrast, the 500-person entering class in 1996-97 had 31 blacks and 42 Hispanic students. See Peter Applebome, Affirmative Action Ban Changes a Law School, N.Y. TIMES, July 2, 1997, at B12 [hereinafter Applebome, Affirmative Action]. Minority applications to the University of Houston Law Center and minority enrollment at Texas Tech University School of Law have also dropped. See Kate Thomas, More 'Hopwood' Fallout, NAT'L L.J., June 9, 1997, at A6. Furthermore, while undergraduate applications to the University of Texas at Austin fell 13% last year, applications from blacks fell 26% and applications from Hispanics fell 23%. See Peter Applebome, Universities Report Less Minority Interest After Action to Ban Preferences, N.Y. TIMES. Mar. 19, 1997, at A24 [hereinafter Applebome, Universities]. Similarly, at Texas A&M University, undergraduate applications from blacks fell 30% last year, and applications from Hispanics fell 18%. See A. Phillips Brooks, Colleges' Minority Situation Awkward; A&M President Addresses, AUSTIN AM.-STATESMAN, June 25, 1997, at B1. California's ban on racial preferences has produced similar results in the University of California system. Minority applications to the UC system rose slightly this year. See William H. Honan, Minority Applications Rise at California, Easing Fears, N.Y. TIMES, Jan. 29, 1998, at A20. However, minority admissions fell throughout the system, most notably at the two most competitive campuses, UC Berkeley and UCLA. See Ethan Bonner, Black and Hispanic Admissions Off Sharply at U. of California, N. Y. TIMES, Apr. 1, 1998, at Al (noting that African Americans, Hispanic Americans, and American Indians made up 10.4% of UC Berkeley's admitted freshmen in 1998, down from 23.1% in 1997; and that these groups made up 12.7% of UCLA's admitted freshmen in 1998, down from 19.8% in 1997).
10. In the wake of Hopwood, Texas universities have removed any consideration of race in their admissions processes - with devastating results for minority students. For example, only three black and 20 Hispanic students put down deposits at the University of Texas Law School for the 1997-98 school year. In contrast, the 500-person entering class in 1996-97 had 31 blacks and 42 Hispanic students. See Peter Applebome, Affirmative Action Ban Changes a Law School, N.Y. TIMES, July 2, 1997, at B12 [hereinafter Applebome, Affirmative Action]. Minority applications to the University of Houston Law Center and minority enrollment at Texas Tech University School of Law have also dropped. See Kate Thomas, More 'Hopwood' Fallout, NAT'L L.J., June 9, 1997, at A6. Furthermore, while undergraduate applications to the University of Texas at Austin fell 13% last year, applications from blacks fell 26% and applications from Hispanics fell 23%. See Peter Applebome, Universities Report Less Minority Interest After Action to Ban Preferences, N.Y. TIMES. Mar. 19, 1997, at A24 [hereinafter Applebome, Universities]. Similarly, at Texas A&M University, undergraduate applications from blacks fell 30% last year, and applications from Hispanics fell 18%. See A. Phillips Brooks, Colleges' Minority Situation Awkward; A&M President Addresses, AUSTIN AM.-STATESMAN, June 25, 1997, at B1. California's ban on racial preferences has produced similar results in the University of California system. Minority applications to the UC system rose slightly this year. See William H. Honan, Minority Applications Rise at California, Easing Fears, N.Y. TIMES, Jan. 29, 1998, at A20. However, minority admissions fell throughout the system, most notably at the two most competitive campuses, UC Berkeley and UCLA. See Ethan Bonner, Black and Hispanic Admissions Off Sharply at U. of California, N. Y. TIMES, Apr. 1, 1998, at Al (noting that African Americans, Hispanic Americans, and American Indians made up 10.4% of UC Berkeley's admitted freshmen in 1998, down from 23.1% in 1997; and that these groups made up 12.7% of UCLA's admitted freshmen in 1998, down from 19.8% in 1997).
11. In the wake of Hopwood, Texas universities have removed any consideration of race in their admissions processes - with devastating results for minority students. For example, only three black and 20 Hispanic students put down deposits at the University of Texas Law School for the 1997-98 school year. In contrast, the 500-person entering class in 1996-97 had 31 blacks and 42 Hispanic students. See Peter Applebome, Affirmative Action Ban Changes a Law School, N.Y. TIMES, July 2, 1997, at B12 [hereinafter Applebome, Affirmative Action]. Minority applications to the University of Houston Law Center and minority enrollment at Texas Tech University School of Law have also dropped. See Kate Thomas, More 'Hopwood' Fallout, NAT'L L.J., June 9, 1997, at A6. Furthermore, while undergraduate applications to the University of Texas at Austin fell 13% last year, applications from blacks fell 26% and applications from Hispanics fell 23%. See Peter Applebome, Universities Report Less Minority Interest After Action to Ban Preferences, N.Y. TIMES. Mar. 19, 1997, at A24 [hereinafter Applebome, Universities]. Similarly, at Texas A&M University, undergraduate applications from blacks fell 30% last year, and applications from Hispanics fell 18%. See A. Phillips Brooks, Colleges' Minority Situation Awkward; A&M President Addresses, AUSTIN AM.-STATESMAN, June 25, 1997, at B1. California's ban on racial preferences has produced similar results in the University of California system. Minority applications to the UC system rose slightly this year. See William H. Honan, Minority Applications Rise at California, Easing Fears, N.Y. TIMES, Jan. 29, 1998, at A20. However, minority admissions fell throughout the system, most notably at the two most competitive campuses, UC Berkeley and UCLA. See Ethan Bonner, Black and Hispanic Admissions Off Sharply at U. of California, N. Y. TIMES, Apr. 1, 1998, at Al (noting that African Americans, Hispanic Americans, and American Indians made up 10.4% of UC Berkeley's admitted freshmen in 1998, down from 23.1% in 1997; and that these groups made up 12.7% of UCLA's admitted freshmen in 1998, down from 19.8% in 1997).
12. In the wake of Hopwood, Texas universities have removed any consideration of race in their admissions processes - with devastating results for minority students. For example, only three black and 20 Hispanic students put down deposits at the University of Texas Law School for the 1997-98 school year. In contrast, the 500-person entering class in 1996-97 had 31 blacks and 42 Hispanic students. See Peter Applebome, Affirmative Action Ban Changes a Law School, N.Y. TIMES, July 2, 1997, at B12 [hereinafter Applebome, Affirmative Action]. Minority applications to the University of Houston Law Center and minority enrollment at Texas Tech University School of Law have also dropped. See Kate Thomas, More 'Hopwood' Fallout, NAT'L L.J., June 9, 1997, at A6. Furthermore, while undergraduate applications to the University of Texas at Austin fell 13% last year, applications from blacks fell 26% and applications from Hispanics fell 23%. See Peter Applebome, Universities Report Less Minority Interest After Action to Ban Preferences, N.Y. TIMES. Mar. 19, 1997, at A24 [hereinafter Applebome, Universities]. Similarly, at Texas A&M University, undergraduate applications from blacks fell 30% last year, and applications from Hispanics fell 18%. See A. Phillips Brooks, Colleges' Minority Situation Awkward; A&M President Addresses, AUSTIN AM.-STATESMAN, June 25, 1997, at B1. California's ban on racial preferences has produced similar results in the University of California system. Minority applications to the UC system rose slightly this year. See William H. Honan, Minority Applications Rise at California, Easing Fears, N.Y. TIMES, Jan. 29, 1998, at A20. However, minority admissions fell throughout the system, most notably at the two most competitive campuses, UC Berkeley and UCLA. See Ethan Bonner, Black and Hispanic Admissions Off Sharply at U. of California, N. Y. TIMES, Apr. 1, 1998, at Al (noting that African Americans, Hispanic Americans, and American Indians made up 10.4% of UC Berkeley's admitted freshmen in 1998, down from 23.1% in 1997; and that these groups made up 12.7% of UCLA's admitted freshmen in 1998, down from 19.8% in 1997).
13. In the wake of Hopwood, Texas universities have removed any consideration of race in their admissions processes - with devastating results for minority students. For example, only three black and 20 Hispanic students put down deposits at the University of Texas Law School for the 1997-98 school year. In contrast, the 500-person entering class in 1996-97 had 31 blacks and 42 Hispanic students. See Peter Applebome, Affirmative Action Ban Changes a Law School, N.Y. TIMES, July 2, 1997, at B12 [hereinafter Applebome, Affirmative Action]. Minority applications to the University of Houston Law Center and minority enrollment at Texas Tech University School of Law have also dropped. See Kate Thomas, More 'Hopwood' Fallout, NAT'L L.J., June 9, 1997, at A6. Furthermore, while undergraduate applications to the University of Texas at Austin fell 13% last year, applications from blacks fell 26% and applications from Hispanics fell 23%. See Peter Applebome, Universities Report Less Minority Interest After Action to Ban Preferences, N.Y. TIMES. Mar. 19, 1997, at A24 [hereinafter Applebome, Universities]. Similarly, at Texas A&M University, undergraduate applications from blacks fell 30% last year, and applications from Hispanics fell 18%. See A. Phillips Brooks, Colleges' Minority Situation Awkward; A&M President Addresses, AUSTIN AM.-STATESMAN, June 25, 1997, at B1. California's ban on racial preferences has produced similar results in the University of California system. Minority applications to the UC system rose slightly this year. See William H. Honan, Minority Applications Rise at California, Easing Fears, N.Y. TIMES, Jan. 29, 1998, at A20. However, minority admissions fell throughout the system, most notably at the two most competitive campuses, UC Berkeley and UCLA. See Ethan Bonner, Black and Hispanic Admissions Off Sharply at U. of California, N. Y. TIMES, Apr. 1, 1998, at Al (noting that African Americans, Hispanic Americans, and American Indians made up 10.4% of UC Berkeley's admitted freshmen in 1998, down from 23.1% in 1997; and that these groups made up 12.7% of UCLA's admitted freshmen in 1998, down from 19.8% in 1997).
14. In the wake of Hopwood, Texas universities have removed any consideration of race in their admissions processes - with devastating results for minority students. For example, only three black and 20 Hispanic students put down deposits at the University of Texas Law School for the 1997-98 school year. In contrast, the 500-person entering class in 1996-97 had 31 blacks and 42 Hispanic students. See Peter Applebome, Affirmative Action Ban Changes a Law School, N.Y. TIMES, July 2, 1997, at B12 [hereinafter Applebome, Affirmative Action]. Minority applications to the University of Houston Law Center and minority enrollment at Texas Tech University School of Law have also dropped. See Kate Thomas, More 'Hopwood' Fallout, NAT'L L.J., June 9, 1997, at A6. Furthermore, while undergraduate applications to the University of Texas at Austin fell 13% last year, applications from blacks fell 26% and applications from Hispanics fell 23%. See Peter Applebome, Universities Report Less Minority Interest After Action to Ban Preferences, N.Y. TIMES. Mar. 19, 1997, at A24 [hereinafter Applebome, Universities]. Similarly, at Texas A&M University, undergraduate applications from blacks fell 30% last year, and applications from Hispanics fell 18%. See A. Phillips Brooks, Colleges' Minority Situation Awkward; A&M President Addresses, AUSTIN AM.-STATESMAN, June 25, 1997, at B1. California's ban on racial preferences has produced similar results in the University of California system. Minority applications to the UC system rose slightly this year. See William H. Honan, Minority Applications Rise at California, Easing Fears, N.Y. TIMES, Jan. 29, 1998, at A20. However, minority admissions fell throughout the system, most notably at the two most competitive campuses, UC Berkeley and UCLA. See Ethan Bonner, Black and Hispanic Admissions Off Sharply at U. of California, N. Y. TIMES, Apr. 1, 1998, at Al (noting that African Americans, Hispanic Americans, and American Indians made up 10.4% of UC Berkeley's admitted freshmen in 1998, down from 23.1% in 1997; and that these groups made up 12.7% of UCLA's admitted freshmen in 1998, down from 19.8% in 1997).
15. See, e.g., NEIL L. RUDENSTINE, HARVARD UNIVERSITY, THE PRESIDENT'S REPORT 1993-1995: DIVERSITY AND LEARNING (1995); DEREK BOK, BEYOND THE IVORY TOWER: SOCIAL RESPONSIBILITIES OF THE MODERN UNIVERSITY 98-100 (1982); Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996); Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 STAN, L. REV. 855, 862-63 (1995); Tanya Y. Murphy, An Argument for Diversity Based Affirmative Action in Higher Education, 1995 ANN. SURV. AM. L. 515, 539-50; Terrance Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U. CHI. L. REV. 653, 683-88 (1975); Chang-Lin Tien, Diversity and Excellence in Higher Education, in DEBATING AFFIRMATIVE ACTION: RACE, GENDER, ETHNICITY, AND THE POLITICS OF INCLUSION 237 (Nicolaus Mills ed., 1994).
16. See, e.g., NEIL L. RUDENSTINE, HARVARD UNIVERSITY, THE PRESIDENT'S REPORT 1993-1995: DIVERSITY AND LEARNING (1995); DEREK BOK, BEYOND THE IVORY TOWER: SOCIAL RESPONSIBILITIES OF THE MODERN UNIVERSITY 98-100 (1982); Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996); Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 STAN, L. REV. 855, 862-63 (1995); Tanya Y. Murphy, An Argument for Diversity Based Affirmative Action in Higher Education, 1995 ANN. SURV. AM. L. 515, 539-50; Terrance Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U. CHI. L. REV. 653, 683-88 (1975); Chang-Lin Tien, Diversity and Excellence in Higher Education, in DEBATING AFFIRMATIVE ACTION: RACE, GENDER, ETHNICITY, AND THE POLITICS OF INCLUSION 237 (Nicolaus Mills ed., 1994).
17. See, e.g., NEIL L. RUDENSTINE, HARVARD UNIVERSITY, THE PRESIDENT'S REPORT 1993-1995: DIVERSITY AND LEARNING (1995); DEREK BOK, BEYOND THE IVORY TOWER: SOCIAL RESPONSIBILITIES OF THE MODERN UNIVERSITY 98-100 (1982); Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996); Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 STAN, L. REV. 855, 862-63 (1995); Tanya Y. Murphy, An Argument for Diversity Based Affirmative Action in Higher Education, 1995 ANN. SURV. AM. L. 515, 539-50; Terrance Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U. CHI. L. REV. 653, 683-88 (1975); Chang-Lin Tien, Diversity and Excellence in Higher Education, in DEBATING AFFIRMATIVE ACTION: RACE, GENDER, ETHNICITY, AND THE POLITICS OF INCLUSION 237 (Nicolaus Mills ed., 1994).
18. See, e.g., NEIL L. RUDENSTINE, HARVARD UNIVERSITY, THE PRESIDENT'S REPORT 1993-1995: DIVERSITY AND LEARNING (1995); DEREK BOK, BEYOND THE IVORY TOWER: SOCIAL RESPONSIBILITIES OF THE MODERN UNIVERSITY 98-100 (1982); Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996); Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 STAN, L. REV. 855, 862-63 (1995); Tanya Y. Murphy, An Argument for Diversity Based Affirmative Action in Higher Education, 1995 ANN. SURV. AM. L. 515, 539-50; Terrance Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U. CHI. L. REV. 653, 683-88 (1975); Chang-Lin Tien, Diversity and Excellence in Higher Education, in DEBATING AFFIRMATIVE ACTION: RACE, GENDER, ETHNICITY, AND THE POLITICS OF INCLUSION 237 (Nicolaus Mills ed., 1994).
19. See, e.g., NEIL L. RUDENSTINE, HARVARD UNIVERSITY, THE PRESIDENT'S REPORT 1993-1995: DIVERSITY AND LEARNING (1995); DEREK BOK, BEYOND THE IVORY TOWER: SOCIAL RESPONSIBILITIES OF THE MODERN UNIVERSITY 98-100 (1982); Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996); Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 STAN, L. REV. 855, 862-63 (1995); Tanya Y. Murphy, An Argument for Diversity Based Affirmative Action in Higher Education, 1995 ANN. SURV. AM. L. 515, 539-50; Terrance Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U. CHI. L. REV. 653, 683-88 (1975); Chang-Lin Tien, Diversity and Excellence in Higher Education, in DEBATING AFFIRMATIVE ACTION: RACE, GENDER, ETHNICITY, AND THE POLITICS OF INCLUSION 237 (Nicolaus Mills ed., 1994).
20. See, e.g., NEIL L. RUDENSTINE, HARVARD UNIVERSITY, THE PRESIDENT'S REPORT 1993-1995: DIVERSITY AND LEARNING (1995); DEREK BOK, BEYOND THE IVORY TOWER: SOCIAL RESPONSIBILITIES OF THE MODERN UNIVERSITY 98-100 (1982); Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996); Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 STAN, L. REV. 855, 862-63 (1995); Tanya Y. Murphy, An Argument for Diversity Based Affirmative Action in Higher Education, 1995 ANN. SURV. AM. L. 515, 539-50; Terrance Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U. CHI. L. REV. 653, 683-88 (1975); Chang-Lin Tien, Diversity and Excellence in Higher Education, in DEBATING AFFIRMATIVE ACTION: RACE, GENDER, ETHNICITY, AND THE POLITICS OF INCLUSION 237 (Nicolaus Mills ed., 1994).
21. See, e.g., NEIL L. RUDENSTINE, HARVARD UNIVERSITY, THE PRESIDENT'S REPORT 1993-1995: DIVERSITY AND LEARNING (1995); DEREK BOK, BEYOND THE IVORY TOWER: SOCIAL RESPONSIBILITIES OF THE MODERN UNIVERSITY 98-100 (1982); Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996); Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 STAN, L. REV. 855, 862-63 (1995); Tanya Y. Murphy, An Argument for Diversity Based Affirmative Action in Higher Education, 1995 ANN. SURV. AM. L. 515, 539-50; Terrance Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U. CHI. L. REV. 653, 683-88 (1975); Chang-Lin Tien, Diversity and Excellence in Higher Education, in DEBATING AFFIRMATIVE ACTION: RACE, GENDER, ETHNICITY, AND THE POLITICS OF INCLUSION 237 (Nicolaus Mills ed., 1994).
22. Only recently have there been serious efforts to defend the diversity rationale from an essentially doctrinal perspective. See Akhil Reed Amar & Neal Kumar Katyal, Bakke's Fate, 43 UCLA L. REV. 1745 (1996) (arguing that Justice Powell's opinion in Bakke can be reconciled with recent Supreme Court precedents on affirmative action); Note, An Evidentiary Framework for Diversity as a Compelling Interest in Higher Education, 109 HARV. L. REV. 1357 (1996) (arguing that the evidentiary standards applied by the Supreme Court to cases involving remedial affirmative action should not apply to cases involving the diversity rationale). Building on these efforts, this Article attempts to unify the doctrinal functions and principles of the "compelling interest" test into a framework capable of guiding its application to both remedial and diversity-based affirmative action.
23. Only recently have there been serious efforts to defend the diversity rationale from an essentially doctrinal perspective. See Akhil Reed Amar & Neal Kumar Katyal, Bakke's Fate, 43 UCLA L. REV. 1745 (1996) (arguing that Justice Powell's opinion in Bakke can be reconciled with recent Supreme Court precedents on affirmative action); Note, An Evidentiary Framework for Diversity as a Compelling Interest in Higher Education, 109 HARV. L. REV. 1357 (1996) (arguing that the evidentiary standards applied by the Supreme Court to cases involving remedial affirmative action should not apply to cases involving the diversity rationale). Building on these efforts, this Article attempts to unify the doctrinal functions and principles of the "compelling interest" test into a framework capable of guiding its application to both remedial and diversity-based affirmative action.
24. See, e.g., Michael S. Greve, Hopwood and Its Consequences, 17 PACE L. REV. 1, 12-20 (1996) (arguing that diversity-based affirmative action is a disguise for unconstitutional racial quotas and that the imperative of preventing resegregation of public schools cannot justify racial classifications under constitutional principles); Kirk A. Kennedy, Race-Exclusive Scholarships: Constitutional Vel Non, 30 WAKE FOREST L. REV. 759, 773-76 (1995) (arguing that the diversity rationale "consider[s] race as the functional equivalent of viewpoint" and therefore constitutes invidious and unconstitutional discrimination); Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 SUP. CT. REV. 1, 7-15, 21-26 (construing the Equal Protection Clause to prohibit government from distributing benefits and costs on racial or ethnic grounds, and rejecting the diversity rationale under this principle) [hereinafter Posner, The DeFunis Case]; Eugene Volokh, Diversity, Race as Proxy, and Religion as Proxy, 43 UCLA L. REV. 2059, 2070-76 (1996) (drawing an analogy between race and religion, and arguing that settled equal protection law bars the use of religion and therefore race as a proxy for experiences, outlooks, and ideas).
25. See, e.g., Michael S. Greve, Hopwood and Its Consequences, 17 PACE L. REV. 1, 12-20 (1996) (arguing that diversity-based affirmative action is a disguise for unconstitutional racial quotas and that the imperative of preventing resegregation of public schools cannot justify racial classifications under constitutional principles); Kirk A. Kennedy, Race-Exclusive Scholarships: Constitutional Vel Non, 30 WAKE FOREST L. REV. 759, 773-76 (1995) (arguing that the diversity rationale "consider[s] race as the functional equivalent of viewpoint" and therefore constitutes invidious and unconstitutional discrimination); Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 SUP. CT. REV. 1, 7-15, 21-26 (construing the Equal Protection Clause to prohibit government from distributing benefits and costs on racial or ethnic grounds, and rejecting the diversity rationale under this principle) [hereinafter Posner, The DeFunis Case]; Eugene Volokh, Diversity, Race as Proxy, and Religion as Proxy, 43 UCLA L. REV. 2059, 2070-76 (1996) (drawing an analogy between race and religion, and arguing that settled equal protection law bars the use of religion and therefore race as a proxy for experiences, outlooks, and ideas).
26. See, e.g., Michael S. Greve, Hopwood and Its Consequences, 17 PACE L. REV. 1, 12-20 (1996) (arguing that diversity-based affirmative action is a disguise for unconstitutional racial quotas and that the imperative of preventing resegregation of public schools cannot justify racial classifications under constitutional principles); Kirk A. Kennedy, Race-Exclusive Scholarships: Constitutional Vel Non, 30 WAKE FOREST L. REV. 759, 773-76 (1995) (arguing that the diversity rationale "consider[s] race as the functional equivalent of viewpoint" and therefore constitutes invidious and unconstitutional discrimination); Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 SUP. CT. REV. 1, 7-15, 21-26 (construing the Equal Protection Clause to prohibit government from distributing benefits and costs on racial or ethnic grounds, and rejecting the diversity rationale under this principle) [hereinafter Posner, The DeFunis Case]; Eugene Volokh, Diversity, Race as Proxy, and Religion as Proxy, 43 UCLA L. REV. 2059, 2070-76 (1996) (drawing an analogy between race and religion, and arguing that settled equal protection law bars the use of religion and therefore race as a proxy for experiences, outlooks, and ideas).
27. See, e.g., Michael S. Greve, Hopwood and Its Consequences, 17 PACE L. REV. 1, 12-20 (1996) (arguing that diversity-based affirmative action is a disguise for unconstitutional racial quotas and that the imperative of preventing resegregation of public schools cannot justify racial classifications under constitutional principles); Kirk A. Kennedy, Race-Exclusive Scholarships: Constitutional Vel Non, 30 WAKE FOREST L. REV. 759, 773-76 (1995) (arguing that the diversity rationale "consider[s] race as the functional equivalent of viewpoint" and therefore constitutes invidious and unconstitutional discrimination); Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 SUP. CT. REV. 1, 7-15, 21-26 (construing the Equal Protection Clause to prohibit government from distributing benefits and costs on racial or ethnic grounds, and rejecting the diversity rationale under this principle) [hereinafter Posner, The DeFunis Case]; Eugene Volokh, Diversity, Race as Proxy, and Religion as Proxy, 43 UCLA L. REV. 2059, 2070-76 (1996) (drawing an analogy between race and religion, and arguing that settled equal protection law bars the use of religion and therefore race as a proxy for experiences, outlooks, and ideas).
28. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
29. This Article does not address the "narrow tailoring" prong of strict scrutiny and therefore does not provide a complete analysis of the constitutionality of the diversity rationale. I recognize that the "narrow tailoring" test presents a variety of difficult issues for the diversity rationale, see infra Part V, and these require thorough and independent treatment. My choice to focus on the "compelling interest" test is primarily motivated by the Hopwood decision. The legal status of the diversity rationale will remain fundamentally uncertain until the conflict between Bakke and Hopwood is resolved. For a thoughtful discussion of the "narrow tailoring" requirement in the affirmative action context, see Ian Ayres, Narrow Tailoring, 43 UCLA L. REV. 1781 (1996).
30. See Stephen E. Gottlieb, Compelling Governmental Interests: An Essential But Unanalyzed Term in Constitutional Adjudication, 68 B.U. L. REV. 917, 917-18 (1988) ("The validity of the process of inferring interests, the validity of the interests inferred, and the validity of the use of governmental interests as a basis to override constitutional rights have all been virtually ignored.").
31. According to one commentator, the Supreme Court in recent years has shown a greater willingness to scrutinize the substantive purposes behind government action in various areas including affirmative action. See Ashutosh Bhagwat, Purpose Scrutiny in Constitutional Analysis, 85 CAL. L. REV. 297 (1997). Bhagwat argues that despite this trend, "the Court's analysis of 'government interests,' and in particular what constitutes a compelling or important interest, is almost entirely undeveloped." Id. at 308; see also id. at 319 ("[T]here is a need for a principled theory of permissible and compelling governmental purposes, and the Supreme Court has failed to articulate such a theory.").
32. According to one commentator, the Supreme Court in recent years has shown a greater willingness to scrutinize the substantive purposes behind government action in various areas including affirmative action. See Ashutosh Bhagwat, Purpose Scrutiny in Constitutional Analysis, 85 CAL. L. REV. 297 (1997). Bhagwat argues that despite this trend, "the Court's analysis of 'government interests,' and in particular what constitutes a compelling or important interest, is almost entirely undeveloped." Id. at 308; see also id. at 319 ("[T]here is a need for a principled theory of permissible and compelling governmental purposes, and the Supreme Court has failed to articulate such a theory.").
33. According to one commentator, the Supreme Court in recent years has shown a greater willingness to scrutinize the substantive purposes behind government action in various areas including affirmative action. See Ashutosh Bhagwat, Purpose Scrutiny in Constitutional Analysis, 85 CAL. L. REV. 297 (1997). Bhagwat argues that despite this trend, "the Court's analysis of 'government interests,' and in particular what constitutes a compelling or important interest, is almost entirely undeveloped." Id. at 308; see also id. at 319 ("[T]here is a need for a principled theory of permissible and compelling governmental purposes, and the Supreme Court has failed to articulate such a theory.").
34. For the sake of clarity. let me explain here what I mean when I use the terms "diversity rationale" and "remedial rationale." The diversity rationale is fundamentally grounded in a democratic ideal. It conceives of affirmative action as a means of fostering an educational environment that prepares students to live, work, and learn together as citizens in a pluralist nation. It views racial isolation and racial separation as antithetical to democratic self-governance, and its central aspiration is to create an integrated society. More precisely, diversity-based affirmative action refers to a university admissions policy that follows the operational contours described by Justice Powell in Bakke. See infra Part I.B. The remedial rationale appeals to notions of corrective justice (although, as we shall see in Pan II.B. the true ground of the remedial rationale may lie elsewhere). It conceives of affirmative action as a means of redressing the present harms of past discrimination, and it aspires to create a society in which individuals enjoy the wealth and opportunities they would have in a world untainted by historical wrongs. Since my approach in this Article is to use the remedial rationale as a reference point for assessing the diversity rationale, "the remedial rationale" means specifically the conslilutionally permissible remedial justification for affirmative action elaborated by the Supreme Court over the past decade. See infra Part H.A. This rationale justifies racial preferences enacted by government entities both voluntarily and pursuant to a constitutional or statutory obligation. But because diversity-based affirmative action is always voluntary, I focus largely on the constitutionally permissible remedial rationale for voluntary affirmative action.
35. 347 U.S. 483 (1954).
36. 339 U.S. 629 (1950).
37. Id. at 633.
38. The University of Texas Law School had 16 full-time and 3 part-time professors, 850 students, a 65,000-volume library, a law review, moot court facilities, scholarship funds, an Order of the Coif affiliation, many distinguished alumni, and much tradition and prestige. The separate law school for blacks had five full-time professors, 23 students, a 16,500-volume library, a practice court, a legal aid association, and one alumnus admitted to the Texas Bar. See id. at 632-33.
39. W. at 634.
40. 339 U.S. 637 (1950).
41. Id. at 641.
42. Id.
43. Id.
44. Later Supreme Court opinions have articulated this value in more balanced terms. See, e.g., Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 473 (1982) ("Attending an ethnically diverse school may help . . . prepar[e] minority children 'for citizenship in our pluralistic society,' while, we may hope, teaching members of the racial majority 'to live in harmony and mutual respect' with children of minority heritage.") (citations omitted); Swann v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 16 (1971) (upholding "broad discretionary powers of school authorities" to achieve integration voluntarily "in order to prepare students to live in a pluralistic society").
45. Justice Powell invokes Sweatt to support his claim that "the contribution of diversity is substantial" at the graduate level. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 313-14 (1978) (opinion of Powell, J.).
46. The school also argued that the affirmative action program would increase the number of physicians working in underserved communities, see id. at 310-11 (opinion of Powell, J.), and that it would ameliorate the effects of past discrimination, see id. at 307-10. Justice Powell found neither to be "compelling." I discuss his analysis of the school's remedial rationale in Part II.A, infra. Justice Powell found the interest in assisting underserved communities unpersuasive because of a "failure of proof." Id. at 310. That is, the school offered '"no empirical data to demonstrate that any one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive.'" Id. at 311 (citation omitted). However, since Bakke was decided, a number of empirical studies have yielded data supporting the medical school's claim. For example, using two large physician surveys between 1987 and 1991, one study found that minority and women physicians are more likely than white and male physicians to serve minority, poor, and Medicaid populations. See Joel C. Cantor et al., Physician Service to the Underserved: Implications for Affirmative Action in Medical Education, 33 INQUIRY 167 (1996). Notably, the study also found that a physician's race or gender is more strongly and consistently associated with a propensity to serve underserved groups than low socioeconomic background. See id. at 178; see also id. at 168 (summarizing previous research on patterns of physician service to underserved populations); Stephen N. Keith et al., Effects of Affirmative Action in Medical Schools: A Study of the Class of 1975, 313 NEW ENG. J. MED. 1519 (1985); Ernest Moy & Barbra A. Bartman, Physician Race and Care of Minority and Medically Indigent Patients, 273 JAMA 1515 (1995).
47. The school also argued that the affirmative action program would increase the number of physicians working in underserved communities, see id. at 310-11 (opinion of Powell, J.), and that it would ameliorate the effects of past discrimination, see id. at 307-10. Justice Powell found neither to be "compelling." I discuss his analysis of the school's remedial rationale in Part II.A, infra. Justice Powell found the interest in assisting underserved communities unpersuasive because of a "failure of proof." Id. at 310. That is, the school offered '"no empirical data to demonstrate that any one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive.'" Id. at 311 (citation omitted). However, since Bakke was decided, a number of empirical studies have yielded data supporting the medical school's claim. For example, using two large physician surveys between 1987 and 1991, one study found that minority and women physicians are more likely than white and male physicians to serve minority, poor, and Medicaid populations. See Joel C. Cantor et al., Physician Service to the Underserved: Implications for Affirmative Action in Medical Education, 33 INQUIRY 167 (1996). Notably, the study also found that a physician's race or gender is more strongly and consistently associated with a propensity to serve underserved groups than low socioeconomic background. See id. at 178; see also id. at 168 (summarizing previous research on patterns of physician service to underserved populations); Stephen N. Keith et al., Effects of Affirmative Action in Medical Schools: A Study of the Class of 1975, 313 NEW ENG. J. MED. 1519 (1985); Ernest Moy & Barbra A. Bartman, Physician Race and Care of Minority and Medically Indigent Patients, 273 JAMA 1515 (1995).
48. The school also argued that the affirmative action program would increase the number of physicians working in underserved communities, see id. at 310-11 (opinion of Powell, J.), and that it would ameliorate the effects of past discrimination, see id. at 307-10. Justice Powell found neither to be "compelling." I discuss his analysis of the school's remedial rationale in Part II.A, infra. Justice Powell found the interest in assisting underserved communities unpersuasive because of a "failure of proof." Id. at 310. That is, the school offered '"no empirical data to demonstrate that any one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive.'" Id. at 311 (citation omitted). However, since Bakke was decided, a number of empirical studies have yielded data supporting the medical school's claim. For example, using two large physician surveys between 1987 and 1991, one study found that minority and women physicians are more likely than white and male physicians to serve minority, poor, and Medicaid populations. See Joel C. Cantor et al., Physician Service to the Underserved: Implications for Affirmative Action in Medical Education, 33 INQUIRY 167 (1996). Notably, the study also found that a physician's race or gender is more strongly and consistently associated with a propensity to serve underserved groups than low socioeconomic background. See id. at 178; see also id. at 168 (summarizing previous research on patterns of physician service to underserved populations); Stephen N. Keith et al., Effects of Affirmative Action in Medical Schools: A Study of the Class of 1975, 313 NEW ENG. J. MED. 1519 (1985); Ernest Moy & Barbra A. Bartman, Physician Race and Care of Minority and Medically Indigent Patients, 273 JAMA 1515 (1995).
49. The school also argued that the affirmative action program would increase the number of physicians working in underserved communities, see id. at 310-11 (opinion of Powell, J.), and that it would ameliorate the effects of past discrimination, see id. at 307-10. Justice Powell found neither to be "compelling." I discuss his analysis of the school's remedial rationale in Part II.A, infra. Justice Powell found the interest in assisting underserved communities unpersuasive because of a "failure of proof." Id. at 310. That is, the school offered '"no empirical data to demonstrate that any one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive.'" Id. at 311 (citation omitted). However, since Bakke was decided, a number of empirical studies have yielded data supporting the medical school's claim. For example, using two large physician surveys between 1987 and 1991, one study found that minority and women physicians are more likely than white and male physicians to serve minority, poor, and Medicaid populations. See Joel C. Cantor et al., Physician Service to the Underserved: Implications for Affirmative Action in Medical Education, 33 INQUIRY 167 (1996). Notably, the study also found that a physician's race or gender is more strongly and consistently associated with a propensity to serve underserved groups than low socioeconomic background. See id. at 178; see also id. at 168 (summarizing previous research on patterns of physician service to underserved populations); Stephen N. Keith et al., Effects of Affirmative Action in Medical Schools: A Study of the Class of 1975, 313 NEW ENG. J. MED. 1519 (1985); Ernest Moy & Barbra A. Bartman, Physician Race and Care of Minority and Medically Indigent Patients, 273 JAMA 1515 (1995).
50. Four Justices, applying intermediate scrutiny, voted to uphold the admissions process on both statutory and constitutional grounds. See Bakke, 438 U.S. at 324 (Brennan, Blackmun, Marshall, & White, JJ., concurring in the judgment in part and dissenting in part). Four Justices voted to invalidate it under Title VI. See id. at 408 (Stevens, J., concurring in the judgment in part and dissenting in part, joined by Burger, C.J., and Stewart & Rehnquist, JJ.).
51. Id. at 320 (opinion of Powell, J.). Before reaching this constitutional holding, Justio Powell examined the plaintiff's statutory claim and concluded that "[i]n view of the clea legislative intent. Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment." Id. at 287.
52. Id. at 312. Justice Powell endorsed the views of William Bowen, then president of Princeton University, who explained that interactions among diverse students can lead to "improved understanding and personal growth" and can stimulate "reexamin[ation] [of] even their most deeply held assumptions about themselves and their world." William [of] Bowen, Admissions and the Relevance of Race, PRINCETON ALUMNI WKLY., Sept. 26, 1977, at 7, quoted in Bakke, 438 U.S. at 313 n.48 (opinion of Powell. J.).
53. Id. at 312. Justice Powell endorsed the views of William Bowen, then president of Princeton University, who explained that interactions among diverse students can lead to "improved understanding and personal growth" and can stimulate "reexamin[ation] [of] even their most deeply held assumptions about themselves and their world." William [of] Bowen, Admissions and the Relevance of Race, PRINCETON ALUMNI WKLY., Sept. 26, 1977, at 7, quoted in Bakke, 438 U.S. at 313 n.48 (opinion of Powell. J.).
54. Id. at 312. Justice Powell endorsed the views of William Bowen, then president of Princeton University, who explained that interactions among diverse students can lead to "improved understanding and personal growth" and can stimulate "reexamin[ation] [of] even their most deeply held assumptions about themselves and their world." William [of] Bowen, Admissions and the Relevance of Race, PRINCETON ALUMNI WKLY., Sept. 26, 1977, at 7, quoted in Bakke, 438 U.S. at 313 n.48 (opinion of Powell. J.).
55. Bakke, 438 U.S. at 313.
56. Id. (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)).
57. Id. at 315.
58. Id. at 317.
59. See id. at 316-17 (discussing the Harvard College admissions program as an "illuminating example" of the proper use of racial preferences to further educational diversity); see also id. at 321-24 (appendix to the opinion of Powell, J.) (reprinting a statement by Harvard describing its admissions program).
60. Id. at 317.
61. Id. at 318 (emphasis added).
62. See id. at 317. 320.
63. See id. at 315.
64. See Metro Broadcasting, Inc. v. FCC. 497 U.S. 547, 568 (1990) ("[A] 'diverse student body' contributing to a '"robust exchange of ideas'" is a 'constitutionally permissible goal' on which a race-conscious university admissions program may be predicated . . . .") (quoting Bakke, 438 U.S. at 311-13 (opinion of Powell, J.)); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986) ("[A] state interest in the promotion of racial diversity has been found sufficiently 'compelling,' at least in the context of higher education, to support the use of racial considerations in furthering that interest.") (O'Connor, J., concurring) (citing Bakke, 438 U.S. at 311-15 (opinion of Powell, J.)); see also Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226 n. 12 (1985) (affirming "[d]iscretion to determine, on academic grounds, who may be admitted to study . . . as one of 'the four essential freedoms' of a university") (citing Bakke, 438 U.S. at 312 (opinion of Powell, J.)).
65. See Hopwood v. Texas, 861 F. Supp. 551, 571 (W.D. Tex. 1994) ("[U]nder current law the goal of diversity is sufficient by itself to satisfy the compelling governmental interest element of strict scrutiny . . . ."), rev'd, 78 F.3d 932 (5th Cir. 1996); Davis v. Halpern, 768 F. Supp. 968, 975 (E.D.N.Y. 1991) (invoking Bakke to hold that "a university's obtaining the benefits which flow from enrolling an ethnically diverse student body" is a "compelling interest" under strict scrutiny); DeRonde v. Regents of Univ. of Cal., 625 P.2d 220, 225 (Cal. 1981) (upholding a law school admissions process that considered "ethnic minority status" as a selection factor partly on grounds that it "passed federal constitutional muster under the standards prescribed by Justice Powell in Bakke"): McDonald v. Hogness, 598 P.2d 707, 713 (Wash. 1979) (en bane) (invoking Bakke to find a medical school goal of promoting student diversity to be "a compelling state interest permitting consideration of race" in its admissions process).
66. Title VI provides: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d (1994).
67. See 59 Fed. Reg. 8756, 8760-62 (Feb. 23, 1994) (clarifying the Department of Education's view that diversity-based affirmative action does not violate Title VI as long as it meets the constitutional standards of Bakke); see also University of Cal. at Berkeley, Let. Rul., OCR (Office of Civil Rights) Case No. 09-89-2099 (Mar. 1, 1996) (upholding under Department of Education policy the use of race as a factor in higher education admissions for the purpose of achieving educational diversity); University of Cal. at San Diego, Let. Rul., OCR Case No. 09-92-2002 (Mar. 21, 1994) (same); University of Cal. at Berkeley School of Law, Let. Rul., OCR Case No. 10-90-6001 (Sept. 25, 1992) (same).
68. Scholars' Reply to Professor Fried, 99 YALE L.J. 163, 166 (1989). Indeed, "[a]n entire generation of Americans has been schooled under Bakke-style affirmative action, with the explicit blessing of - indeed, following a how-to-do-it manual from - U.S. Reports." Amar & Katyal, supra note 9, at 1769 (noting that Justices Kennedy and O'Connor have "cautioned against overruling hugely important cases around which major social expectations have crystallized"); see also Bad Law on Affirmative Action, N.Y. TIMES, Mar. 22, 1996, at A26 (editorial) (stating that "[f]or two decades the governing principle of affirmative action in higher education has been that race and ethnicity may be a factor, but only one factor, in choosing among applicants in pursuit of the legitimate purpose of a diverse student body" and that "Justice Powell's announcement has soundly been regarded as the rule of the Bakke case for nearly a generation").
69. Scholars' Reply to Professor Fried, 99 YALE L.J. 163, 166 (1989). Indeed, "[a]n entire generation of Americans has been schooled under Bakke-style affirmative action, with the explicit blessing of - indeed, following a how-to-do-it manual from - U.S. Reports." Amar & Katyal, supra note 9, at 1769 (noting that Justices Kennedy and O'Connor have "cautioned against overruling hugely important cases around which major social expectations have crystallized"); see also Bad Law on Affirmative Action, N.Y. TIMES, Mar. 22, 1996, at A26 (editorial) (stating that "[f]or two decades the governing principle of affirmative action in higher education has been that race and ethnicity may be a factor, but only one factor, in choosing among applicants in pursuit of the legitimate purpose of a diverse student body" and that "Justice Powell's announcement has soundly been regarded as the rule of the Bakke case for nearly a generation").
70. Nevertheless, some commentators have argued that the diversity rationale commanded a majority in Bakke. See Amar & Katyal, supra note 9, at 1752-54 (arguing that the opinion of the Brennan Four in Bakke supports Justice Powell's diversity argument); John Hart Ely, The Supreme Court, 1977 Term - Foreword: On Discovering Fundamental Values, 92 HARV. L. REV. 5, 10 n.33 (1978) (noting that the only part of Bakke that commanded a majority was Justice Powell's statement that "the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin"); cf. Charles Fried, The Supreme Court, 1994 Term - Foreword: Revolutions?, 109 HARV. L. REV. 13, 48 (1995) (noting that "the difference between Powell and Brennan in Bakke was one of degree"). But see Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996) ("In Bakke the word 'diversity' is mentioned nowhere except in Justice Powell's single-Justice opinion.").
71. Nevertheless, some commentators have argued that the diversity rationale commanded a majority in Bakke. See Amar & Katyal, supra note 9, at 1752-54 (arguing that the opinion of the Brennan Four in Bakke supports Justice Powell's diversity argument); John Hart Ely, The Supreme Court, 1977 Term - Foreword: On Discovering Fundamental Values, 92 HARV. L. REV. 5, 10 n.33 (1978) (noting that the only part of Bakke that commanded a majority was Justice Powell's statement that "the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin"); cf. Charles Fried, The Supreme Court, 1994 Term - Foreword: Revolutions?, 109 HARV. L. REV. 13, 48 (1995) (noting that "the difference between Powell and Brennan in Bakke was one of degree"). But see Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996) ("In Bakke the word 'diversity' is mentioned nowhere except in Justice Powell's single-Justice opinion.").
72. Nevertheless, some commentators have argued that the diversity rationale commanded a majority in Bakke. See Amar & Katyal, supra note 9, at 1752-54 (arguing that the opinion of the Brennan Four in Bakke supports Justice Powell's diversity argument); John Hart Ely, The Supreme Court, 1977 Term - Foreword: On Discovering Fundamental Values, 92 HARV. L. REV. 5, 10 n.33 (1978) (noting that the only part of Bakke that commanded a majority was Justice Powell's statement that "the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin"); cf. Charles Fried, The Supreme Court, 1994 Term - Foreword: Revolutions?, 109 HARV. L. REV. 13, 48 (1995) (noting that "the difference between Powell and Brennan in Bakke was one of degree"). But see Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996) ("In Bakke the word 'diversity' is mentioned nowhere except in Justice Powell's single-Justice opinion.").
73. Nevertheless, some commentators have argued that the diversity rationale commanded a majority in Bakke. See Amar & Katyal, supra note 9, at 1752-54 (arguing that the opinion of the Brennan Four in Bakke supports Justice Powell's diversity argument); John Hart Ely, The Supreme Court, 1977 Term - Foreword: On Discovering Fundamental Values, 92 HARV. L. REV. 5, 10 n.33 (1978) (noting that the only part of Bakke that commanded a majority was Justice Powell's statement that "the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin"); cf. Charles Fried, The Supreme Court, 1994 Term - Foreword: Revolutions?, 109 HARV. L. REV. 13, 48 (1995) (noting that "the difference between Powell and Brennan in Bakke was one of degree"). But see Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996) ("In Bakke the word 'diversity' is mentioned nowhere except in Justice Powell's single-Justice opinion.").
74. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986) (O'Connor, J., concurring) (citing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311-15 (1978) (opinion of Powell, J.)). Justice O'Connor's views on diversity are particularly noteworthy because given the current composition of the Supreme Court, she "may well hold the fate of Bakke in her hands." Amar & Katyal, supra note 9, at 1754.
75. 488 U.S. 469, 493 (1989) (plurality opinion) (O'Connor, J.). Justice Stevens expressed disagreement with Justice O'Connor's "premise . . . that a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong . . . . [E]ven if we completely disregard our history of racial injustice, race is not always irrelevant to sound governmental decisionmaking." Id. at 511-12 (Stevens, J., concurring in part and concurring in the judgment). Citing Justice Powell's opinion in Bakke, Justice Stevens wrote: "I would not totally discount the legitimacy of race-based decisions that may produce tangible and fully justified future benefits." Id. at 512 n.1.
76. 497 U.S. 547, 566 (1990).
77. Id. at 581; see id. at 580-81 & nn.31-33; see also id. at 582 ("While we are under no illusion that members of a particular minority
78. Id. at 568 (citing Bakke, 438 U.S. at 311-13 (opinion of Powell, J.)). However, in a vigorous dissent. Justice O'Connor wrote: Under . . . strict scrutiny, only a compelling interest may support the Government's use of racial classifications. Modern equal protection doctrine has recognized only one such interest: remedying the effects of racial discrimination. The interest in increasing the diversity of broadcast viewpoints is clearly not a compelling interest. It is simply too amorphous, too insubstantial, and too unrelated to any legitimate basis for employing racial classifications. Id. at 612 (O'Connor, J., dissenting).
79. 515 U.S. 200, 227 (1995).
80. Id.
81. Id. at 237 (quoting Fullilove v. Klutznick, 448 U.S. 448, 507 (1980) (Powell, J., concurring)). In this Article, I discuss Adarand sparingly because it says little that illuminates the compelling interest test. Adarand's main significance is its extension of Croson's principles to federal governmental actors. Indeed, Croson is perhaps the most important precedent in recent affirmative action case law in virtue of its extensive elaboration of the strict scrutiny standard. See infra notes 91-99 and accompanying text.
82. Justice Stevens pointed out that: [t]he majority today overrules Metro Broadcasting only insofar as it is 'inconsistent with [the] holding" that strict scrutiny applies to 'benign' racial classifications promulgated by the Federal Government. The proposition that fostering diversity may provide a sufficient interest to justify such a program is not inconsistent with the Court's holding today - indeed, the question is not remotely presented in this case - and I do not take the Court's opinion to diminish that aspect of our decision in Metro Broadcasting. Id. at 258 (Stevens, J., dissenting) (citation omitted).
83. 78 F.3d 932 (5th Cir.), cert, denied, 116 S. Ct. 2581 (1996).
84. 87 F.3d 916 (7th Cir. 1996) (unanimous opinion) (Posner, C.J.), cert, denied. 117 S. Ct. 949 (1997).
85. The admissions process placed each applicant into one of three categories - "presumptive admit," "presumptive deny." or "discretionary zone" - based on an index calculated from grade point average and Law School Admissions Test score. The numerical thresholds for each category were lower for blacks and Mexican Americans than for whites and other applicants. In addition, the procedure for reviewing discretionary zone applicants also differed by race. The files of white applicants were divided into stacks of 30, with each stack reviewed by 3 of the 15 members of the admissions committee. Working independently, each reviewer would cast a fixed number of votes (usually 9 to 11) per stack, and a candidate receiving two or three votes was offered admission. In contrast, all blacks and Mexican Americans in the discretionary zone were reviewed by a specific three-person subcommittee which met as a group, discussed each applicant, and jointly reached admission decisions that were "virtually final." See Hopwood v. Texas, 861 F. Supp. 551. 562-63 (W.D. Tex. 1994).
86. W. at 570 (quoting the law school's "Statement of Policy on Affirmative Action"). The law school also advanced a remedial rationale for its affirmative action policy, but the Fifth Circuit rejected this justification. See Hopwood. 78 F.3d at 948-55.
87. Hopwood, 861 F. Supp. at 570.
88. Id. at 579 ("The constitutional infirmity of the [admissions process) is not that it gives preferential treatment on the basis of race but that it fails to afford each individual applicant a comparison with the entire pool of applicants, not just those of the applicant's own race."); see Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 317 (1978) (opinion of Powell, J.) (noting that a diversity-based admissions policy may "not insulate the individual from comparison with all other candidates for the available seats").
89. Hopwood, 78 F.3d at 944.
90. Id. at 945.
91. Id.
92. Id. at 946.
93. Id. at 944.
94. To support its conclusion, the Fifth Circuit first cited Justice O'Connor's suggestion in Croson that racial classifications should be "strictly reserved for remedial settings." Id. at 944 (citing City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion)). However, only three Justices joined this portion of Justice O'Connor's opinion, and in any case, Croson had nothing to do with education or the diversity rationale. Next, the court cited Justice O'Connor's dissent in Metro Broadcasting, joined by Justices Rehnquist, Scalia, and Kennedy, where she stated that '"[m]odern equal protection has recognized only one [compelling state] interest: remedying the effects of racial discrimination.'" Id. at 945 (citing Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 612 (1990) (O'Connor, J., dissenting)). Although the court described this passage as "Adarand-vindicated," this is simply not true. Nowhere in Adarand does the Supreme Court assess the constitutionality of the diversity rationale under strict scrutiny. In addition, Adarand, like Croson, involved a government contracting program, not university admissions. Finally, the Hopwood court depicted Justice Thomas's concurrence in Adarand as "suggest[ing] that the diversity rationale is inadequate to meet strict scrutiny." Id. (citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240-41 (1995) (Thomas, J., concurring)). However, Justice Thomas makes no such suggestion in Adarand. In fact, the word "diversity" does not even appear once in his opinion. Thus, the case law simply does not support the Fifth Circuit's claim that "[poat-Bakke] Supreme Court decisions regarding education state that non-remedial state interests will never justify racial classifications." Id. at 944 (emphasis added). At most, the case law suggests that rive sitting Justices - Rehnquist, O'Connor, Kennedy, Scalia, and Thomas - might find the diversity rationale constitutionally impermissible under strict scrutiny. But see Amar & Katyal, supra note 9, at 1769-71 (arguing that Justices O'Connor and Kennedy in Adarand "cautioned against overruling hugely important cases [including Bakke] around which major social expectations have crystallized").
95. See 116 S. Ct. 2581 (1996). Although Hopwood is the law in the Fifth Circuit, no other circuit has cited it in the context of a case involving education. Two district courts outside of the Fifth Circuit, in cases involving affirmative action in public school admissions, have reached different conclusions about the validity of Hopwood's holding. Compare Tito v. Arlington Cty. Seh. Bd., No. 97-540-A, 1997 U.S. Dist. LEXIS 7932, at *13-*14 (E.D. Va. May 13, 1997) (relying on Hopwood to invalidate a race-conscious admissions policy designed to foster educational diversity in an elementary school), with McLaughlin v. Boston Sch. Comm., 938 F. Supp. 1001, 1014-15 (D. Mass. 1996) (concluding that the question of whether educational diversity is a "compelling interest" remains open despite Hopwood, and refusing to grant summary judgment to the plaintiff in a school discrimination suit on that ground).
96. 87 F.3d 916, 919 (7th Cir. 1996) (unanimous opinion) (Posner, C.J.), cert, denied, 117 S. Ct. 949 (1997).
97. See id. at 917.
98. See id.
99. See id.
100. Id. Notably, the state did not advance any interest in remedying past discrimination.
101. Id. at 920. During the period relevant to the suit, only 2 of the 48 correctional officers in the boot camp were black, all 3 captains were white, and 2 of the 10 lieutenants were black. See id. at 917.
102. See id. at 920.
103. No court has yet applied Wittmer to a case involving voluntary race-based affirmative action undertaken by a public school.
104. Wittmer, 87 F.3d at 919.
105. Id.
106. Id. at 920.
107. This approach calls to mind Justice O'Connor's opinion in Wygant, where, after acknowledging the remedial and diversity rationales for affirmative action, she declared that "nothing the Court has said today necessarily forecloses the possibility that the Court will find other governmental interests which have been relied upon in the lower courts but which have not been passed on here to be sufficiently 'important' or 'compelling' to sustain the use of affirmative action policies." Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986) (O'Connor, J., concurring).
108. Justice Powell rejected the argument that a lesser degree of scrutiny should apply "because white males . . . are not a 'discrete and insular minority' requiring extraordinary protection from the majoritarian political process." Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 290 (1978) (opinion of Powell. J.) (citation omitted). He then declared: "Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination." Id. at 291.
109. See id. at 306.
110. Id. at 307. nation, if it identifies that discrimination with the particularity required by the Fourteenth Amendment . . . . Thus, if the city could show that it had essentially become a "passive participant" in a system of racial exclusion practiced by elements of the local construction industry, we think it clear that the city could take affirmative steps to dismantle such a system. Id. at 491-92 (plurality opinion). To be precise, then, the city's set-aside plan failed not only because the evidence of its own prior discrimination was insufficient, but also because "there [was] nothing approaching a prima facie case of a constitutional or statutory violation by anyone in the Richmond construction industry." Id. at 500; see also id. at 480 ("There was no direct evidence of race discrimination on the part of the city in letting contracts or any evidence that the city's prime contractors had discriminated against minority-owned subcontractors.").
111. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 275 (1986) (plurality opinion).
112. Cass R. Sunstein, Three Civil Rights Fallacies. 79 CAL. L. REV. 751, 762 (1991); see also Kathleen M. Sullivan, Sins of Discrimination: Last Term's Affirmative Action Cases, 100 HARV. L. REV. 78, 91-92 (1986) (observing that the Court has sought to "[c]ast[] affirmative action as penance for particular sins of discrimination," thereby "mak[ing] racial preferences seem more like corrective or retributive justice than like social engineering").
113. Cass R. Sunstein, Three Civil Rights Fallacies. 79 CAL. L. REV. 751, 762 (1991); see also Kathleen M. Sullivan, Sins of Discrimination: Last Term's Affirmative Action Cases, 100 HARV. L. REV. 78, 91-92 (1986) (observing that the Court has sought to "[c]ast[] affirmative action as penance for particular sins of discrimination," thereby "mak[ing] racial preferences seem more like corrective or retributive justice than like social engineering").
114. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978) (opinion of Powell, J.).
115. See Wygant, 476 U.S. at 274 (plurality opinion) ("[T]he Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination.") (emphasis added); id. at 288 (O'Connor, J., concurring) (agreeing with plurality that "governmental agency's interest in remedying . . . discrimination not traceable to its own actions" is not "compelling" under strict scrutiny); Hopwood v. Texas, 78 F.3d 932, 950 (5th Cir. 1996) (rejecting the University of Texas's interest in remedying past discrimination by Texas elementary and secondary schools and holding that "the state's use of remedial racial classifications is limited to the harm caused by a specific state actor"); Podberesky v. Kirwan, 38 F.3d 147, 154 (4th Cir. 1994) (invalidating a University of Maryland scholarship program limited to black students partly because the university failed to show that present racial hostility on campus was caused by its own past discrimination and not by present societal discrimination). But cf. infra notes 114-116 and accompanying text.
116. Croson, 488 U.S. at 500.
117. See JOHN H. ELY, DEMOCRACY AND DISTRUST 147 (1980) (noting that strict scrutiny requires the government to advance a compelling interest but "doesn't provide a standard (how important is important enough?)"); Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427, 437 (1997) ("Determining whether the relevant state interests are legitimate or illegitimate must precede the application of heightened scrutiny."); Bhagwat, supra note 14, at 312-16 (observing that the Supreme Court has shown an increasing willingness to declare certain government purposes illegitimate before applying equal protection scrutiny); Gottlieb, supra note 13, at 941 (concluding from a broad review of case law that the "sources [of compelling interests] are ambiguous and their relative weights impossible to gauge").
118. See JOHN H. ELY, DEMOCRACY AND DISTRUST 147 (1980) (noting that strict scrutiny requires the government to advance a compelling interest but "doesn't provide a standard (how important is important enough?)"); Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427, 437 (1997) ("Determining whether the relevant state interests are legitimate or illegitimate must precede the application of heightened scrutiny."); Bhagwat, supra note 14, at 312-16 (observing that the Supreme Court has shown an increasing willingness to declare certain government purposes illegitimate before applying equal protection scrutiny); Gottlieb, supra note 13, at 941 (concluding from a broad review of case law that the "sources [of compelling interests] are ambiguous and their relative weights impossible to gauge").
119. See JOHN H. ELY, DEMOCRACY AND DISTRUST 147 (1980) (noting that strict scrutiny requires the government to advance a compelling interest but "doesn't provide a standard (how important is important enough?)"); Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427, 437 (1997) ("Determining whether the relevant state interests are legitimate or illegitimate must precede the application of heightened scrutiny."); Bhagwat, supra note 14, at 312-16 (observing that the Supreme Court has shown an increasing willingness to declare certain government purposes illegitimate before applying equal protection scrutiny); Gottlieb, supra note 13, at 941 (concluding from a broad review of case law that the "sources [of compelling interests] are ambiguous and their relative weights impossible to gauge").
120. See JOHN H. ELY, DEMOCRACY AND DISTRUST 147 (1980) (noting that strict scrutiny requires the government to advance a compelling interest but "doesn't provide a standard (how important is important enough?)"); Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427, 437 (1997) ("Determining whether the relevant state interests are legitimate or illegitimate must precede the application of heightened scrutiny."); Bhagwat, supra note 14, at 312-16 (observing that the Supreme Court has shown an increasing willingness to declare certain government purposes illegitimate before applying equal protection scrutiny); Gottlieb, supra note 13, at 941 (concluding from a broad review of case law that the "sources [of compelling interests] are ambiguous and their relative weights impossible to gauge").
121. See Sunstein, supra note 101, at 764 ("Under current law, affirmative action can . . . be defended most easily in tort-like terms as an effort to restore a status quo ante that has been unsettled by identifiable acts producing identifiable harms to identifiable actors."). However, Sunstein goes on to explain, as I do in this section, that "affirmative action does not fit the tort model." Id.
122. See Brest & Oshige, supra note 8, at 865 ("The paradigm of corrective justice involves an identifiable tortfeasor compensating an identifiable victim for injuries that a court can clearly attribute to that tortfeasor's illegal behavior."); cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) ("The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.").
123. See JULES COLEMAN, RISKS AND WRONGS 344-45, 355 (1992) (explaining that only an individual who has suffered wrongful loss is entitled to repair under corrective justice and that "[a]n actor has a duty in corrective justice to repair a loss only if that loss is his responsibility"): Sullivan, supra note 101, at 92 (observing that under principles of corrective or retributive justice, "neither nonvictims should benefit, nor nonsinners pay").
124. See JULES COLEMAN, RISKS AND WRONGS 344-45, 355 (1992) (explaining that only an individual who has suffered wrongful loss is entitled to repair under corrective justice and that "[a]n actor has a duty in corrective justice to repair a loss only if that loss is his responsibility"): Sullivan, supra note 101, at 92 (observing that under principles of corrective or retributive justice, "neither nonvictims should benefit, nor nonsinners pay").
125. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 287 (1986) (O'Connor. J., concurring) (citations omitted) (emphasis added).
126. BilliSh v. City of Chicago, 962 F.2d 1269, 1291-92 (7th Cir. 1992), rev'd on other grounds, 989 F.2d 890 (7th Cir. 1993) (en bane); see Associated Gen. Contractors v. Coalition for Econ. Equity. 950 F.2d 1401, 1417 n.12 (9th Cir. 1991) (rejecting plaintiff's argument "that to pass constitutional muster any remedy adopted must provide redress only to specific individuals who have been identified as victims of discrimination"). The Supreme Court has also held consistently that the beneficiary of a remedial affirmative action program need not be an actual victim of discrimination in the Title VII context. See Local No. 93, Int'l Ass'n of Firelighters v. City of Cleveland, 478 U.S. 501. 516 (1986) ("[T]he voluntary action available to employers and unions seeking to eradicate race discrimination may include reasonable race-conscious relief that benefits individuals who were not actual victims of discrimination."); Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421. 482 (1986) (plurality opinion) ("To summarize our holding today, six Members of the Court agree that a district court may, in appropriate circumstances, order preferential relief benefiting individuals who are not the actual victims of discrimi-nation as a remedy for violations of Title VII . . . ."). But see Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring in part) ("Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race"); City of Richmond v. J.A. Croson, 488 U.S. 469, 526-27 (1989) (Scalia, J., concurring) (arguing that remedial action should be limited to "actual victims of discrimination").
127. Billish, 962 F.2d at 1294; see id. at 1293 (citing Associated Gen. Contractors, 950 F.2d at 1417) (holding that contract bidding preferences benefiting minority groups would likely survive strict scrutiny); Donaghy v. City of Omaha, 933 F.2d 1448, 1460 (8th Cir. 1991) (upholding race-conscious hiring goal that applied to "the minority group identified as being underutilized") (emphasis added); Cunico v. Pueblo Sch. Dist. No. 60, 917 F.2d 431, 437 (10th Cir. 1990) ("The purpose of race-conscious affirmative action must be to remedy the effects of past discrimination against a disadvantaged group . . . .") (emphasis added); Cone Corp. v. Hillsborough County, 908 F.2d 908, 917 (11th Cir. 1990) (construing Croson to limit benefits of affirmative action to minority groups that have suffered discrimination).
128. Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir. 1996).
129. Wygant, 476 U.S. at 280-81 (plurality opinion) (emphasis added); see also Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 298 (1978) (opinion of Powell, J.) ("[T]here is a measure of inequity in forcing innocent persons . . . to bear the burdens of redressing grievances not of their making.").
130. Johnson v. Transportation Agency, 480 U.S. 616, 652 (1987) (O'Connor, J., concurring) ("A requirement that [a state actor] actually prove that it had discriminated in the past would . . . unduly discourage voluntary efforts to remedy apparent discrimination."); see also Aiken v. City of Memphis, 37 F.3d 1155, 1162-63 (6th Cir. 1994) ("No formal finding of past discrimination by the governmental unit involved is necessary to determine that a compelling [remedial] interest exists . . . ."); Billish, 962 F.2d at 1283 (same); Donaghy, 933 F.2d at 1459 (same).
131. Johnson, 480 U.S. at 649 (O'Connor, J., concurring); see also Wygant, 476 U.S. at 290-93 (O'Connor, J., concurring).
132. See City of Richmond v. J.A. Croson, 488 U.S. 469, 492 (1989) (plurality opinion); see also Associated Gen. Contractors v. Coalition for Econ. Equity, 950 F.2d 1401, 1413 (9th Cir. 1991; ("[A] municipality has a compelling interest in redressing, not only discrimination committed by the municipality, itself, but also discrimination committed by private parties within the municipality's legislative jurisdiction, so long as the municipality in some way perpetuated the discrimination to be remedied by the program."); Coral Constr. Co. v. King County, 941 F.2d 910, 916 (9th Cir. 1991) ("[T]he governmental actor need not be an active perpetrator of such discrimination; passive participation will satisfy this sub-part of strict scrutiny review."); supra note 99.
133. See Owen Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 145 (1976): [O]nce the connections between victim and beneficiary and between past perpetrator and present cost-bearer are severed, we have ceased talking about [remedying] past discrimination in any individualized sense. The past discrimination that we are talking about is of a more global character - for example, that the group were [sic] slaves for one century and subject to Jim Crow laws for another.
134. Paul Brest and Miranda Oshige nicely summarize the three ways in which voluntary, remedial affirmative action departs from the paradigm of corrective justice: [1] The institution that adopts the program is not usually a proven or acknow-ledged wrongdoer, and in any event not a wrongdoer with respect to the individual beneficiaries of its affirmative action program. [2] To benefit from the preference, a candidate need not show any individual injury, but only that she is a member of a racial or ethnic group that has suffered historic societal discrimination. [3] The main burden of compensation is neither borne by the institution adopting the program nor distributed over the society at large. Rather, it is borne by dispreferred candidates - those who, but for the affirmative action policy, would have gotten the position. Brest & Oshige, supra note 8, at 866; see also Sunstein, supra note 101, at 763 ("The general problem is that the compensatory model, in any form, is based on notions of causation, injury, and restoration to the status quo ante that are well adapted to [the] tort or contract setting, but singularly ill-suited to the problem of discrimination in the United States.").
135. See Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421. 474 (1986) (plurality opinion) (observing that affirmative action "is provided to the class as a whole rather than to individual members: no individual is entitled to relief, and beneficiaries need not show that they were themselves victims of discrimination"): Sunstein. supra note 101, at 762-65 (arguing that modeling civil rights law on principles of compensatory justice "inadequately captures the nature of the problem"); Sullivan, supra note 101, at 91-96 (arguing that rationales for affirmative action based on corrective or retributive justice invite valid criticisms about "windfalls to nonvictims and injustice to innocents").
136. Cf. Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir. 1996) (explaining that the justification for remedial affirmative action "must be sought elsewhere than in notions of compensation"); Paul Gewirtz, Choice in the Transition: School Desegregation and the Corrective Ideal, 86 COLUM. L. REV. 728, 796 (1986) (endorsing a corrective conception of antidiscrimination law but acknowledging "the possibility that value preferences beyond those contained within the corrective conception itself will actually control its application"). I shall say more about the substantive contours of the remedial rationale in Part III.
137. Cf. Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir. 1996) (explaining that the justification for remedial affirmative action "must be sought elsewhere than in notions of compensation"); Paul Gewirtz, Choice in the Transition: School Desegregation and the Corrective Ideal, 86 COLUM. L. REV. 728, 796 (1986) (endorsing a corrective conception of antidiscrimination law but acknowledging "the possibility that value preferences beyond those contained within the corrective conception itself will actually control its application"). I shall say more about the substantive contours of the remedial rationale in Part III.
138. See Adarand Constructors. Inc. v. Pena. 515 U.S. 200, 239 (1995) (Scalia. J., concurring in part): Croson. 488 U.S. at 526-27 (Scalia. J., concurring).
139. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265. 396 (1978) (Marshall, J., dissenting); cf. Fiss, supra note 117. at 147-70.
140. Cf. Bhagwat, supra note 14, at 360 ("[T]he Court's recognition of this, and thus far no other, allowable purpose seems to be the product of ad hoc balancing . . . . [L]ittle else can explain the distinction drawn by some courts permitting racial classifications designed to remedy public discrimination, but not private or societal discrimination").
141. Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir. 1996).
142. See Gottlieb, supra note 13, at 947 (arguing that while the Constitution supports the goal of remedying prior governmental discrimination, "the Constitution does not indicate the appropriate remedy to employ" and does not resolve "the indeterminacy of the importance of the purposes, i.e., whether an interest is important or compelling, and what goal of the remedy justifies what cost").
143. See Croson, 488 U.S. at 491-92 (plurality opinion).
144. See id. at 500-05 (majority opinion).
145. ELY, supra note 105, at 146.
146. W. at 147-48.
147. Id. at 148.
148. Similarly, Jed Rubenfeld argues that the "compelling interest" test only makes sense as "a test for smoking out ulterior, unconstitutional state purposes." See Rubenfeld, supra note 105, at 443; see also Bhagwat. supra note 14, at 330 (arguing on the basis of recent Supreme Court jurisprudence that "when the case requires it to do so the Court is willing and able to identify the true purpose behind challenged legislation, and to determine the legitimacy of that purpose").
149. See City of Richmond v. J.A. Croson Co.. 488 U.S. 469, 499 (1989) ("[T]here is no doubt that the sorry history of both private and public discrimination in this country has contributed to a lack of opportunities for black entrepreneurs . . . .").
150. W. at 535 (Marshall, J.. dissenting).
151. W. at 493 (plurality opinion) (emphasis added). While only three Justices joined Justice O'Connor in this part of the Croson opinion, a five-Justice majority endorsed this precise reasoning in Adarand. See Adarand Constuctors. Inc. v. Pena, 515 U.S. 200, 226 (1995) (quoting Croson, 488 U.S. at 493); see also id. at 275-76 (Ginsburg, J., dissenting) ("Properly, a majority of the Court calls for review [of racial classifications] that is searching in order to ferret out classifications in reality malign, but masquerading as benign . . . . [T]he purpose of strict scrutiny [is] . . . to distinguish '"between a "No Trespassing" sign and a welcome mat.'") (citations omitted).
152. Croson, 488 U.S. at 510 (plurality opinion).
153. Id. at 500 (majority opinion).
154. Id. at 506 (majority opinion).
155. Id.
156. Id.
157. See id. at 543-44 (Marshall, J., dissenting) (assigning evidentiary weight and advocating deference to testimony of city leaders because "the city's leadership is deeply familiar with what racial discrimination is").
158. Id. at 495 (plurality opinion).
159. Id. at 495-96.
160. While acknowledging that Croson interprets strict scrutiny as a "smoking-out device," Rubenfeld argues that the Court has since transformed the "compelling interest" test into a cost-benefit "justificatory test in which important state interests are permitted to outweigh acknowledged constitutional injuries." Rubenfeld, supra note 105, at 440. As evidence, he cites the following dicta in Adarand: [W]henever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection . . . . The application of strict scrutiny, in turn, determines whether a compelling governmental interest justifies the infliction of that injury. Adarand Constructors, Inc., v. Pena, 515 U.S. 200, 229 (1995). Although Rubenfeld is rightly critical of the cost-benefit view, I believe he overstates its significance when he characterizes it as "a little-noticed but profound transformation in equal protection law." Rubenfeld, supra note 105, at 440. The point is "little-noticed" because neither Adarand nor any subsequent Supreme Court case has actually applied this cost-benefit version of strict scrutiny. Indeed, Croson remains the most authoritative decision articulating the content and purpose of the "compelling interest" test. Moreover, at least one major equal protection case decided by the Court after Adarand confirms the vitality of the smokingout view. See infra note 144 (discussing United States v. Virginia, 116 S. Ct. 2264 (1996)).
161. The Supreme Court's approach to sex classifications further confirms that the "interest" prong of equal protection review functions as a motive test. In United States v. Virginia, a six-Justice majority declared that state-imposed gender classifications require "an 'exceedingly persuasive justification'" and that they must be "substantially related" to "important governmental objectives." United States v. Virginia, 116 S. Ct. 2264, 2271 (1996) (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)) [hereinafter VMI]. At issue in VMI was the constitutionality of the Virginia Military Institute's 150-year-old policy of excluding women from its student body. The state advanced two interests to justify the policy: first, the pedagogical benefits of single-sex education contribute to diversity in educational opportunities state-wide, see id. at 2276, and second, "VMI's adversative method of training provides educational benefits that cannot be made available, unmodified, to women," id. at 2279. In finding these interests constitutionally inadequate, Justice Ginsburg did not question their importance from the standpoint of public policy. See id. at 2276-77 (noting that the pedagogical value of single-sex education "is uncontested in this litigation" and that "it is not disputed that diversity among public educational institutions can serve the public good"). Instead, she examined the factual record to determine whether the state's purported interests were its actual interests in maintaining the policy. See id. at 2277 ("[B]enign' justifications proffered in defense of categorical exclusions will not be accepted automatically: a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.") (emphasis added). Discussing Virginia's long history of excluding women from higher education. Justice Ginsburg concluded that "[a] purpose genuinely to advance an array of educational options . . . is not served by VMI's historic and constant [exclusion of women]." Id. at 2279 (emphasis added). In addition, she determined that VMI's goal of producing "'citizen-soldiers'" through the adversative method "[s]urely . . . is great enough to accommodate women." Id. at 2281-82. Thus, the Court invalidated the policy not because the proffered interests were unimportant, but rather because they were not genuine. The Court - with its emphasis on '"inquiry into the [state's] actual purposes'" - made clear that the purpose of heightened equal protection review is to smoke out unconstitutional motive. Id. at 2277 (citations omitted). See also Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 730 (1982) (rejecting a women-only policy because Mississippi "failed to establish that the alleged objective [of compensating for discrimination against women] is the actual purpose underlying the discriminatory classification") (emphasis added).
162. See Croson, 488 U.S. at 500 (plurality opinion); see also id. at 501 ("[B]lind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis").
163. This two-step analytic pattern is clearly detectable in several cases examining non-remedial justifications for affirmative action under strict scrutiny. See, e.g., Wittmer v. Peters. 87 F.3d 916, 918-21 (7th Cir. 1996); Hayes v. North State Law Enforcemeni Officers Ass'n, 10 F.3d 207. 213-14 (4th Cir. 1993), cert, denied. 117 S. Ct. 1246 (1997); DeRonde v. Regents of the Univ. of Cal., 625 P.2d 220. 226-27 (Cal. 1981); McDonald v. Hogness, 598 P.2d 707, 712-13 & n.8 (Wash. 1979).
164. RUDENSTINE, supra note 8, at 1.
165. Id. at 33.
166. See Association of American Universities, On the Importance of Diversity in University Admissions (Apr. 14, 1997), in N.Y. TIMES, Apr. 24, 1997, at A27. The statement read in relevant part: [We write] to express our strong conviction concerning the continuing need to take into account a wide range of considerations - including ethnicity, race, and gender - as we evaluate the students whom we select for admission. We speak first and foremost as educators. We believe that our students benefit significantly from education that takes place within a diverse setting. In the course of their university education, our students encounter and learn from others who have backgrounds and characteristics very different from their own. As we seek to prepare students for life in the twenty-first century, the educational value of such encounters will become more important, not less, than in the past. A very substantial portion of our curriculum is enhanced by the discourse made possible by the heterogeneous backgrounds of our students. Equally, a significant part of education in our institutions takes place outside the classroom, in extracurricular activities where students learn how to work together, as well as to compete; how to exercise leadership, as well as to build consensus. If our institutional capacity to bring together a genuinely diverse group of students is removed - or severely reduced - then the quality and texture of the education we provide will be significantly diminished. We therefore reaffirm our commitment to diversity as a value that is central to the very concept of education in our institutions. Id.
167. See supra note 8. To some educators, the diversity rationale is even more persuasive than the remedial rationale. Stanford President Gerhard Casper, hardly a liberal apologist, explains: We do not admit minorities to do them a favor. We want students from a variety of backgrounds to help fulfill our educational responsibilities . . . . University admissions offices are not set up to sit in judgment on what injustices society should compensate for and who should pay the price . . . . We must not admit some and thereby exclude others because we arrogate to ourselves the power to sort out who owes what to whom. Gerhard Casper, Keeping Open an Avenue Whereby the Deserving and Exceptional May Rise Through Their Own Efforts, Statement on Affirmative Action at Stanford University (Oct. 4, 1995) (on file with author): see also RUDENSTINE, supra note 8, at 44 ("The primary purpose of diversity in university admissions . . . is not . . . to compensate for patterns of past societal discrimination.").
168. These criteria by no means constitute a formal touchstone for validating a "compelling interest"; indeed, the Supreme Court has never offered a definitive formula. See Bhagwat, supra note 14, at 308, 319 (observing that the Court has not articulated a principled theory of "compelling interests"). I choose these five only because they help to illuminate the substantive features of a particular governmental interest that the Supreme Court has already recognized as "compelling" in the affirmative action context. In this way, the criteria provide a practical framework for assessing whether the diversity rationale qualifies as "compelling." At least two commentators have emphasized the second criteria in my framework (constitutional foundations), arguing that courts should find a governmental interest "compelling" only when it is consistent with the principles underlying the substantive constitutional right that it burdens. See Bhagwat, supra note 14, at 356, fig. 1: Gottlieb, supra note 13, at 920, 937. Mindful of this commentary, I devote considerable attention in Part III.B to the constitutional foundations of affirmative action. Specifically, I argue that the diversity rationale advances the principles and policies underlying the Equal Protection Clause no less than the remedial rationale.
169. Paul Gewirtz, The Triumph and Transformation of Antidiscrimination Law, in RACE, LAW, AND CULTURE: REFLECTIONS ON BROWN v. BOARD OF EDUCATION 110, 126 (Austin Sarat ed., 1997) [hereinafter Gewirtz, Triumph and Transformation]; see GERTRUDE EZORSKY, RACISM AND JUSTICE: THE CASE FOR AFFIRMATIVE ACTION 75 (1991) (arguing that a history of de jure discrimination "suffices to demonstrate the moral legitimacy of legally required compensation"); see also Gewirtz, supra note 120, at 782-83 ("The unique moral force of the corrective conception . . . rests upon the existence of a link between present conditions (which are the focus of a remedy) and prior wrongful acts of purposeful discrimination."). However, Gewirtz acknowledges that the diversity rationale has special force in the education context, since "education is centrally about exposing students to people with ideas and life experiences different from their own; and, in a multiracial society, . . . learning to understand and interact with people of all races is essential . . . ." Gewirtz, Triumph and Transformation, supra, at 128.
170. Paul Gewirtz, The Triumph and Transformation of Antidiscrimination Law, in RACE, LAW, AND CULTURE: REFLECTIONS ON BROWN v. BOARD OF EDUCATION 110, 126 (Austin Sarat ed., 1997) [hereinafter Gewirtz, Triumph and Transformation]; see GERTRUDE EZORSKY, RACISM AND JUSTICE: THE CASE FOR AFFIRMATIVE ACTION 75 (1991) (arguing that a history of de jure discrimination "suffices to demonstrate the moral legitimacy of legally required compensation"); see also Gewirtz, supra note 120, at 782-83 ("The unique moral force of the corrective conception . . . rests upon the existence of a link between present conditions (which are the focus of a remedy) and prior wrongful acts of purposeful discrimination."). However, Gewirtz acknowledges that the diversity rationale has special force in the education context, since "education is centrally about exposing students to people with ideas and life experiences different from their own; and, in a multiracial society, . . . learning to understand and interact with people of all races is essential . . . ." Gewirtz, Triumph and Transformation, supra, at 128.
171. Paul Gewirtz, The Triumph and Transformation of Antidiscrimination Law, in RACE, LAW, AND CULTURE: REFLECTIONS ON BROWN v. BOARD OF EDUCATION 110, 126 (Austin Sarat ed., 1997) [hereinafter Gewirtz, Triumph and Transformation]; see GERTRUDE EZORSKY, RACISM AND JUSTICE: THE CASE FOR AFFIRMATIVE ACTION 75 (1991) (arguing that a history of de jure discrimination "suffices to demonstrate the moral legitimacy of legally required compensation"); see also Gewirtz, supra note 120, at 782-83 ("The unique moral force of the corrective conception . . . rests upon the existence of a link between present conditions (which are the focus of a remedy) and prior wrongful acts of purposeful discrimination."). However, Gewirtz acknowledges that the diversity rationale has special force in the education context, since "education is centrally about exposing students to people with ideas and life experiences different from their own; and, in a multiracial society, . . . learning to understand and interact with people of all races is essential . . . ." Gewirtz, Triumph and Transformation, supra, at 128.
172. See supra notes 108-113 and accompanying text.
173. See Fiss, supra note 117, at 151 (suggesting that affirmative action expresses "an ethical view against caste, one that would make it undesirable for any social group to occupy a position of subordination for any extended period of time"); see also Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410 (1994); cf. Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 474 (1986) (plurality opinion) ("The purpose of affirmative action is not to make identified victims whole, but rather to dismantle prior patterns of . . . discrimination and to prevent discrimination in the future.").
174. See Fiss, supra note 117, at 151 (suggesting that affirmative action expresses "an ethical view against caste, one that would make it undesirable for any social group to occupy a position of subordination for any extended period of time"); see also Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410 (1994); cf. Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 474 (1986) (plurality opinion) ("The purpose of affirmative action is not to make identified victims whole, but rather to dismantle prior patterns of . . . discrimination and to prevent discrimination in the future.").
175. See Fiss, supra note 117, at 151 (suggesting that affirmative action expresses "an ethical view against caste, one that would make it undesirable for any social group to occupy a position of subordination for any extended period of time"); see also Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410 (1994); cf. Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 474 (1986) (plurality opinion) ("The purpose of affirmative action is not to make identified victims whole, but rather to dismantle prior patterns of . . . discrimination and to prevent discrimination in the future.").
176. Kenneth L. Karst, Private Discrimination and Public Responsibility: Patterson in Context, 1989 SUP. CT. REV. 1, 36.
177. There is simply no way '"to define an isolated realm of public life in which we treat each other as equals while the balance of our lives are lived in hermetically sealed, racially isolated settings.'" Rochelle L. Stanfield, Affirmative Inaction. NAT'L J., July 12, 1997. at 1414, 1416 (quoting Harvard law professor Christopher Edley). Likewise, Martin Luther King argued on ethical grounds that "[desegregation . . . is only a short-range goal. Integration is the ultimate goal of our national community." Martin Luther King, Jr., The Ethical Demands for Integration, in A TESTAMENT OF HOPE: THE ESSENTIAL WRITINGS OF MARTIN LUTHER KING, JR. 118 (James M. Washington ed., 1986).
178. There is simply no way '"to define an isolated realm of public life in which we treat each other as equals while the balance of our lives are lived in hermetically sealed, racially isolated settings.'" Rochelle L. Stanfield, Affirmative Inaction. NAT'L J., July 12, 1997. at 1414, 1416 (quoting Harvard law professor Christopher Edley). Likewise, Martin Luther King argued on ethical grounds that "[desegregation . . . is only a short-range goal. Integration is the ultimate goal of our national community." Martin Luther King, Jr., The Ethical Demands for Integration, in A TESTAMENT OF HOPE: THE ESSENTIAL WRITINGS OF MARTIN LUTHER KING, JR. 118 (James M. Washington ed., 1986).
179. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 492 (1989) (plurality opinion) (emphasis added).
180. See Bhagwat, supra note 14, at 340 ("[T]He Court tends to find allowable - or . . . 'compelling' - government interests only when the asserted interest is found to advance the principles and policies underlying the particular constitutional provision and right at issue."); see also Gottlieb, supra note 13, at 948 ("[W]ithin the realm of race discrimination and affirmative action, constitutional provisions may properly be treated as support for the inference of the asserted compelling governmental interest. Nevertheless, establishing the weight, scope, and even derivation of that interest involves choices and ambiguities analogous to those incident to finding non-explicit fundamental rights.").
181. Cf. Gottleib, supra note 13, at 919 (observing that "compelling interests lack a strong textual foundation in the Constitution; at no point does the Constitution mandate or define compelling interests, or establish their weight or supremacy").
182. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 229 (1995) (explaining that although the "principle of consistency" requires all racial classifications to be reviewed under strict scrutiny, "[i]t says nothing about the ultimate validity of any particular law").
183. Id. at 274 (Ginsburg, J., dissenting).
184. Id. (citing majority opinion at 235 ("[W]e wish to dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact.'")).
185. Id. at 229 (citation omitted).
186. Id. at 229 (majority opinion) (explaining that strict scrutiny does not "ignore[ ] the difference between an 'engine of oppression' and an effort 'to foster equality in society,' or, more colorfully, 'between a "No Trespassing" sign and a welcome mat'") (quoting id. at 242, 244 (Stevens, J., dissenting)).
187. The Supreme Court has held that a state university system previously segregated by law has an affirmative, constitutional duty to "eradicate[] policies and practices traceable to its prior de jure dual system that continue to foster segregation." United States v. Fordice, 505 U.S. 717, 728 (1992).
188. See, e.g.. United States v. Paradise, 480 U.S. 149, 166 (1987) (plurality opinion) (upholding the constitutionality of a race-based promotional quota "essential to remedy unlawful treatment of racial or ethnic groups subject to discrimination") (emphasis added). In a unanimous opinion the Court wrote: Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy. To forbid, at this stage, all [student] assignments on the basis of race would deprive school authorities of the one tool absolutely essential to fulfillment of their constitutional obligation to eliminate existing dual school systems. North Carolina State Bd. of Educ. v. S wann, 402 U.S. 43. 46 (1971) (unanimous opinion) (emphasis added). See also Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1. 19-20, 22-31 (1971) (holding that court-ordered remedies for unconstitutional segregation may take the form
189. Fordice, 505 U.S. at 729; see Geier v. Alexander. 801 F.2d 799 (6th Cir. 1986) (upholding a race-based affirmative action program designed to remedy the University of Tennessee's prior unconstitutional de jure segregation): cf. 34 C.F.R. §100.3(b)(6)(i) (1996) ("In administering a [federally funded education] program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.").
190. See supra note 99; supra notes 114-115 and accompanying text.
191. The value vindicated in both cases is a justice-based conception of racial equality that is distinct from notions of individual compensation. See supra notes 118-119 and accompanying text; see generally Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753 (1985) (arguing that the framers of the Fourteenth Amendment clearly contemplated the use of race-conscious measures to remedy past discrimination).
192. I recognize that Justice Powell attempted to locate the constitutional foundation of the diversity rationale in the First Amendment. In Bakke he wrote; Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body . . . . Thus, in arguing that its universities must be accorded the right to select those students who will contribute the most to the 'robust exchange of ideas,' [the state] invokes a countervailing constitutional interest, that of the First Amendment. Regents of Univ. of Cal. v. Bakke. 438 U.S. 263, 312-13 (1978) (opinion of Powell, J.). Justice Powell has not been alone in reading the First Amendment this way. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226 n.12 (1985) (unanimous opinion); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Sweezy v. New Hampshire, 354 U.S. 234. 263 (1957) (Frankfurter, J., concurring). Although the First Amendment protects a university's freedom to choose its students, it provides no specific endorsement for the substantive goal of educational diversity. That is, the First Amendment sees no distinction between a racial classification designed to promote diversity in the student body and one designed to achieve homogeneity - as long as each can be justified on academic grounds. Because academic freedom is a neutral principle favoring no particular substantive end, I do not believe it provides an adequate constitutional basis for the diversity rationale. (I am grateful to Akhil Amar for this insight.)
193. See U.S. CONST, amend. XIV, XV, XIX, XXIV.
194. THE FEDERALIST No. 51, at 323 (James Madison) (Clinton Rossiter ed., 1961); see also 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 269 (Phillips Bradley ed., Knopf 1945) (1835) ("If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach?"); 1 id. at 279: If ever the free institutions of America are destroyed, that event may be attributed to the omnipotence of the majority, which may at some future time urge the minorities to desperation and oblige them to have recourse to physical force. Anarchy will then be the result, but it will have been brought about by despotism.
195. THE FEDERALIST No. 51, at 323 (James Madison) (Clinton Rossiter ed., 1961); see also 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 269 (Phillips Bradley ed., Knopf 1945) (1835) ("If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach?"); 1 id. at 279: If ever the free institutions of America are destroyed, that event may be attributed to the omnipotence of the majority, which may at some future time urge the minorities to desperation and oblige them to have recourse to physical force. Anarchy will then be the result, but it will have been brought about by despotism.
196. THE FEDERALIST No. 51, at 323 (James Madison) (Clinton Rossiter ed., 1961); see also 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 269 (Phillips Bradley ed., Knopf 1945) (1835) ("If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach?"); 1 id. at 279: If ever the free institutions of America are destroyed, that event may be attributed to the omnipotence of the majority, which may at some future time urge the minorities to desperation and oblige them to have recourse to physical force. Anarchy will then be the result, but it will have been brought about by despotism.
197. THE FEDERALIST No. 10, at 83 (James Madison) (Clinton Rossiter ed., 1961).
198. United States v. Carolene Products Co., 304 U.S. 144, 152-53 n.4 (1938); see also Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 486 (1982) (affirming "the judiciary's special role in safeguarding the interests of those groups that are 'relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process'" (quoting San Antonio Indep. Sch. Dist. v. Rodriguez. 411 U.S. 1, 28 (1973))).
199. THE FEDERALIST No. 51, supra note 172, at 324.
200. See ELY, supra note 105, at 153 (emphasis added) (quoting Frank Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 60 CAL. L. REV. 275, 315 (1972)); see generally GORDON ALLPORT, THE NATURE OF PREJUDICE (1954).
201. See ELY, supra note 105, at 153 (emphasis added) (quoting Frank Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 60 CAL. L. REV. 275, 315 (1972)); see generally GORDON ALLPORT, THE NATURE OF PREJUDICE (1954).
202. As the Supreme Court declared in Palmore v. Sidoti. 466 U.S. 429, 433 (1984), "[t]he Constitution cannot control [racial] prejudices, but neither can it tolerate them." The Court has recognized this point in a variety of decisions invalidating laws that disadvantaged minority groups. For example, in Romer v. Evans. 116 S. Ct. 1620 (1996). the Court struck down a Colorado constitutional amendment prohibiting the enactment of state or local measures designed to protect gays and lesbians from discrimination. A six-Justice majority, applying rational basis review, determined that the amendment "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Id. at 1628. Invoking "our constitutional tradition," the Court explained that a political majority may not enact legislation based on '"a bare . . . desire to harm a politically unpopular group.'" Id. (citation omitted): see also City of Cleburne v. Cleburne Living Ctr.. Inc., 473 U.S. 432, 450 (1985) (striking down a local zoning ordinance barring group homes for mentally retarded persons under rational basis review on the grounds that it "appear[ed] . . . to rest on an irrational prejudice against the mentally retarded"); cf. Bruce Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713. 742-43 (1985) (suggesting that the prohibition of publicly sanctioned racial prejudice is a fundamental constitutional value that should constrain ordinary pluralist bargaining in American democracy).
203. As the Supreme Court declared in Palmore v. Sidoti. 466 U.S. 429, 433 (1984), "[t]he Constitution cannot control [racial] prejudices, but neither can it tolerate them." The Court has recognized this point in a variety of decisions invalidating laws that disadvantaged minority groups. For example, in Romer v. Evans. 116 S. Ct. 1620 (1996). the Court struck down a Colorado constitutional amendment prohibiting the enactment of state or local measures designed to protect gays and lesbians from discrimination. A six-Justice majority, applying rational basis review, determined that the amendment "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Id. at 1628. Invoking "our constitutional tradition," the Court explained that a political majority may not enact legislation based on '"a bare . . . desire to harm a politically unpopular group.'" Id. (citation omitted): see also City of Cleburne v. Cleburne Living Ctr.. Inc., 473 U.S. 432, 450 (1985) (striking down a local zoning ordinance barring group homes for mentally retarded persons under rational basis review on the grounds that it "appear[ed] . . . to rest on an irrational prejudice against the mentally retarded"); cf. Bruce Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713. 742-43 (1985) (suggesting that the prohibition of publicly sanctioned racial prejudice is a fundamental constitutional value that should constrain ordinary pluralist bargaining in American democracy).
204. ELY, supra note 105, at 161.
205. See Brown v. Board of Educ., 347 U.S. 483, 493 (1954) (noting that public education is "the very foundation of good citizenship" and "a principal instrument in awakening the [student] to cultural values"); 1 TOCQUEVILLE, supra note 172. at 330 ("[P]olitics are the end and aim of education . . . ."); BENJAMIN R. BARBER, AN ARISTOCRACY OF EVERYONE: THE POLITICS OF EDUCATION AND THE FUTURE OF AMERICA 3-15, 222-29 (1992). Barber writes: Public, private, and religious schools in America's earlier days expressed a common commitment to education as a concomitant of democracy. Historically, the meaning of public education was precisely education into what it meant to belong to a public: education in the rex publica - in commonality, in community, in the common constitution that made plurality and difference possible. Id. at 14. See also MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 217 (1983) (arguing that public schools in the United States must meet "the need of every child to grow up within this democratic community and take his place as a competent citizen"); see generally JOHN DEWEY, DEMOCRACY AND EDUCATION (Macmillan 1961) (1916).
206. See Brown v. Board of Educ., 347 U.S. 483, 493 (1954) (noting that public education is "the very foundation of good citizenship" and "a principal instrument in awakening the [student] to cultural values"); 1 TOCQUEVILLE, supra note 172. at 330 ("[P]olitics are the end and aim of education . . . ."); BENJAMIN R. BARBER, AN ARISTOCRACY OF EVERYONE: THE POLITICS OF EDUCATION AND THE FUTURE OF AMERICA 3-15, 222-29 (1992). Barber writes: Public, private, and religious schools in America's earlier days expressed a common commitment to education as a concomitant of democracy. Historically, the meaning of public education was precisely education into what it meant to belong to a public: education in the rex publica - in commonality, in community, in the common constitution that made plurality and difference possible. Id. at 14. See also MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 217 (1983) (arguing that public schools in the United States must meet "the need of every child to grow up within this democratic community and take his place as a competent citizen"); see generally JOHN DEWEY, DEMOCRACY AND EDUCATION (Macmillan 1961) (1916).
207. See Brown v. Board of Educ., 347 U.S. 483, 493 (1954) (noting that public education is "the very foundation of good citizenship" and "a principal instrument in awakening the [student] to cultural values"); 1 TOCQUEVILLE, supra note 172. at 330 ("[P]olitics are the end and aim of education . . . ."); BENJAMIN R. BARBER, AN ARISTOCRACY OF EVERYONE: THE POLITICS OF EDUCATION AND THE FUTURE OF AMERICA 3-15, 222-29 (1992). Barber writes: Public, private, and religious schools in America's earlier days expressed a common commitment to education as a concomitant of democracy. Historically, the meaning of public education was precisely education into what it meant to belong to a public: education in the rex publica - in commonality, in community, in the common constitution that made plurality and difference possible. Id. at 14. See also MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 217 (1983) (arguing that public schools in the United States must meet "the need of every child to grow up within this democratic community and take his place as a competent citizen"); see generally JOHN DEWEY, DEMOCRACY AND EDUCATION (Macmillan 1961) (1916).
208. See Brown v. Board of Educ., 347 U.S. 483, 493 (1954) (noting that public education is "the very foundation of good citizenship" and "a principal instrument in awakening the [student] to cultural values"); 1 TOCQUEVILLE, supra note 172. at 330 ("[P]olitics are the end and aim of education . . . ."); BENJAMIN R. BARBER, AN ARISTOCRACY OF EVERYONE: THE POLITICS OF EDUCATION AND THE FUTURE OF AMERICA 3-15, 222-29 (1992). Barber writes: Public, private, and religious schools in America's earlier days expressed a common commitment to education as a concomitant of democracy. Historically, the meaning of public education was precisely education into what it meant to belong to a public: education in the rex publica - in commonality, in community, in the common constitution that made plurality and difference possible. Id. at 14. See also MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 217 (1983) (arguing that public schools in the United States must meet "the need of every child to grow up within this democratic community and take his place as a competent citizen"); see generally JOHN DEWEY, DEMOCRACY AND EDUCATION (Macmillan 1961) (1916).
209. WALZEK, supra note 179, at 223.
210. Ambach v. Norwick, 441 U.S. 68, 77 (1979) (quoting DEWEY, supra note 179, at 26). quoted in Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986).
211. WALZER, supra note 179, at 226; see id. at 217 (arguing that, in order to prepare students for democratic politics, "schools should aim at a pattern of association anticipating that of adult men and women in a democracy"). Central to Walzer's associative principle is the notion that "[students] are each others' resources: comrades and rivals, challenging one another, helping one another, forming what may well be the crucial friendships of their adult lives. The content of the curriculum is probably less important than the human environment within which it is taught." Id. at 215.
212. Like Justice Powell, Walzer is quick to note that the pattern of association required for democratic politics is not strict proportionality. See id. at 222 ("[N]o form of proportional association anticipates the choices of democratic citizens."); id. at 223 ("It is not necessary that all schools be identical in social composition; it is necessary that different sorts of [students] encounter one another within them."). Moreover, like the diversity rationale, Walzer's associative principle contemplates not only racial diversity but other kinds of diversity as well. For example, the principle would sanction geography-based preferences such as those implemented by Harvard during the 1860s, when regional prejudices threatened to divide the nation. C.C. Felton, Harvard's president at that time, offered a familiar rationale, recounted by current Harvard president Neil Rudenstine: [S]tudents from many parts of the country . . . were likely to have a variety of basic assumptions, experiences, regional or cultural perspectives, and even prejudices. Felton concluded that if he could bring together - in a single institution - young people from different backgrounds who would be educated in association with one another, and who would eventually become leaders in different parts of the nation, then that process could make a difference to the creation of unity throughout the country as whole. RUDENSTINE, supra note 8, at 6. As far as maintaining democracy is concerned, there is a clear analogy between the university's role in promoting geographic integration a century ago and its role in fostering racial integration today.
213. See WALZER, supra note 179, at 223 (noting that an associative principle anticipating democratic politics "is all the more important when the pluralist pattern [in society at large] is involuntary and distorted").
214. See, e.g., DOUGLASS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 63-66, 221-23 (1993); Reynolds Parley. Black-White Residential Segregation: The Views of Myrdal in the 1940s and the Trends of the 1980s, in AN AMERICAN DILEMMA REVISITED: RACE RELATIONS IN A CHANGING WORLD 45, 69-71 (Obie Clayton, Jr. ed. 1996). While survey data show that both blacks and whites are committed to residential integration in principle, it is clear that in practice blacks are more willing than whites to live in integrated communities. See Farley, supra, at 70-72. "Despite the legal banning of discrimination and the apparent easing of white racial hostility, blacks and whites were still very unlikely to share a neighborhood within most metropolitan areas." MASSEY & DENTON, supra, at 66. Housing segregation also affects Asians and Latinos, albeit to a lesser extent. See Farley, supra, at 56-57 (citing William H. Frey & Reynolds Farley, Latino, Asian, and Black Segregation in Multi-Ethnic Metropolitan Areas: Findings from the 1990 Census (Population Studies Ctr., Univ. of Mich. Report No. 93-293, 1993)).
215. See, e.g., DOUGLASS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 63-66, 221-23 (1993); Reynolds Parley. Black-White Residential Segregation: The Views of Myrdal in the 1940s and the Trends of the 1980s, in AN AMERICAN DILEMMA REVISITED: RACE RELATIONS IN A CHANGING WORLD 45, 69-71 (Obie Clayton, Jr. ed. 1996). While survey data show that both blacks and whites are committed to residential integration in principle, it is clear that in practice blacks are more willing than whites to live in integrated communities. See Farley, supra, at 70-72. "Despite the legal banning of discrimination and the apparent easing of white racial hostility, blacks and whites were still very unlikely to share a neighborhood within most metropolitan areas." MASSEY & DENTON, supra, at 66. Housing segregation also affects Asians and Latinos, albeit to a lesser extent. See Farley, supra, at 56-57 (citing William H. Frey & Reynolds Farley, Latino, Asian, and Black Segregation in Multi-Ethnic Metropolitan Areas: Findings from the 1990 Census (Population Studies Ctr., Univ. of Mich. Report No. 93-293, 1993)).
216. See, e.g., DOUGLASS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 63-66, 221-23 (1993); Reynolds Parley. Black-White Residential Segregation: The Views of Myrdal in the 1940s and the Trends of the 1980s, in AN AMERICAN DILEMMA REVISITED: RACE RELATIONS IN A CHANGING WORLD 45, 69-71 (Obie Clayton, Jr. ed. 1996). While survey data show that both blacks and whites are committed to residential integration in principle, it is clear that in practice blacks are more willing than whites to live in integrated communities. See Farley, supra, at 70-72. "Despite the legal banning of discrimination and the apparent easing of white racial hostility, blacks and whites were still very unlikely to share a neighborhood within most metropolitan areas." MASSEY & DENTON, supra, at 66. Housing segregation also affects Asians and Latinos, albeit to a lesser extent. See Farley, supra, at 56-57 (citing William H. Frey & Reynolds Farley, Latino, Asian, and Black Segregation in Multi-Ethnic Metropolitan Areas: Findings from the 1990 Census (Population Studies Ctr., Univ. of Mich. Report No. 93-293, 1993)).
217. The most recent authoritative study shows that the segregation of black students has increased over the past decade and that Latino students have become even more segregated than blacks. See Gary Orfield et al., Deepening Segregation in American Public Schools (Apr. 5, 1997) (Harvard Project on School Desegregation) (unpublished report, on file with author): see also GARY ORFIELD, DISMANTLING DESEGREGATION: THE QUIET REVERSAL OF BROWN v. BOARD OF EDUCATION (1996). In recent years, the Supreme Court has retreated from its earlier insistence on desegregation efforts that "promise[] realistically to work now." Green v. County Sch. Bd., 391 U.S. 430, 439 (1968). A series of precedents have cleared the way for many school systems to terminate court-imposed remedies and to declare unitary status. See Missouri v. Jenkins, 515 U.S. 70, 102 (1995) (holding that "external factors" such as the low performance of minority students on standardized achievement tests "do not figure in the remedial calculus" if they are not traceable to the constitutional violation that originally gave rise to a remedial duty); Freeman v. Pitts, 503 U.S. 467 (1992) (holding that partial unitary status is not precluded if the school district has complied with a desegregation decree in some but not all aspects and if school officials have shown good faith in attempting to achieve full compliance): Board of Educ. v. Dowell. 498 U.S. 237. 249-50 (1991) (holding that a federal court must terminate supervision of a school district if the school board has "complied in good faith with the desegregation decree since it was entered" and if the "vestiges of past discrimination ha[ve] been eliminated to the extent practicable").
218. The most recent authoritative study shows that the segregation of black students has increased over the past decade and that Latino students have become even more segregated than blacks. See Gary Orfield et al., Deepening Segregation in American Public Schools (Apr. 5, 1997) (Harvard Project on School Desegregation) (unpublished report, on file with author): see also GARY ORFIELD, DISMANTLING DESEGREGATION: THE QUIET REVERSAL OF BROWN v. BOARD OF EDUCATION (1996). In recent years, the Supreme Court has retreated from its earlier insistence on desegregation efforts that "promise[] realistically to work now." Green v. County Sch. Bd., 391 U.S. 430, 439 (1968). A series of precedents have cleared the way for many school systems to terminate court-imposed remedies and to declare unitary status. See Missouri v. Jenkins, 515 U.S. 70, 102 (1995) (holding that "external factors" such as the low performance of minority students on standardized achievement tests "do not figure in the remedial calculus" if they are not traceable to the constitutional violation that originally gave rise to a remedial duty); Freeman v. Pitts, 503 U.S. 467 (1992) (holding that partial unitary status is not precluded if the school district has complied with a desegregation decree in some but not all aspects and if school officials have shown good faith in attempting to achieve full compliance): Board of Educ. v. Dowell. 498 U.S. 237. 249-50 (1991) (holding that a federal court must terminate supervision of a school district if the school board has "complied in good faith with the desegregation decree since it was entered" and if the "vestiges of past discrimination ha[ve] been eliminated to the extent practicable").
219. See, e.g., UNIVERSITY COMMITTEE ON MINORITY ISSUES, STANFORD UNIVERSITY, BUILDING A MULTICULTURAL, MULTIRACIAL UNIVERSITY COMMUNITY: FINAL REPORT 1989) [hereinafter STANFORD UCMI REPORT]. This university self-study found that most white students had quite limited exposure to minority students before going to college. On the other hand, most minority students had significant prior contact with whites. Nevertheless, most minority students also had little prior exposure to other minority groups. See id. at 159-62.
220. If our democratic republic is to survive and flourish, "it must cultivate some common spaces where citizens from every corner of society can come together to learn how others live, how others think, how others feel. If not in public universities, where? If not in young adulthood, when?" Amar & Katyal, supra note 9, at 1749.
221. MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION. AND AMERICAN LAW 117 (1990): see id. ("The root of prejudice is the separation between groups that exaggerates difference.").
222. MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION. AND AMERICAN LAW 117 (1990): see id. ("The root of prejudice is the separation between groups that exaggerates difference.").
223. WALZER, supra note 179, at 203.
224. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265. 316-17 (1978) (opinion of Powell, J.).
225. While affirmative action does impose costs on non-minority applicants, it is a mistake to understand these costs through the stock narrative of a "deserving" white applicant who would have been admitted but for the admission of a "less deserving" minority. See Sturm & Guinier. supra note 8, at 960-97 (elaborating this stock narrative and criticizing its implicit notions of merit and desert). Affirmative action does not pit minorities against non-minorities in such a stark way. For example, although the court of appeals in Hopwood noted that Cheryl Hopwood's composite grade point average/LSAT score was higher than the scores of many minority applicants who were admitted, see Hopwood v. Texas, 78 F.3d 932, 936-38 (5th Cir. 1996). it failed to point out that over 100 while applicants with scores lower than Hopwood's were also admitted, see Sturm & Guinier, supra note 8, at 962 n.28 (citing State of Texas Petition for Certiorari, Texas v. Hopwood, 116 S. Ct. 2582 (1996)). More generally, the effect of affirmative action is not to displace a particular non-minority applicant so that a particular minority applicant may be admitted. Rather, affirmative action simply decreases the probability of admission for non-minority applicants to a small extent. To see this more clearly, imagine a selection process involving 100 positions and 500 applicants of whom 450 are non-minorities and 50 are minorities. Now make the additional (and quite improbable) assumption that every non-minority applicant is more "qualified" than the most "qualified" minority. On average, then, each non-minority applicant has a 22% chance (100 out of 450) of being selected. Now suppose that the selection process reserves ten positions for minorities. Then, each non-minority applicant would have a 20% chance (90 out of 450) of being selected. The point is that even under this unconstitutional system of racial proportionality, the average cost to each non-minority applicant is a less than 10% decrease in the probability of selection. If we abandon the improbable assumption that all non-minority applicants are more "qualified" than minorities, the average cost imposed by the quota on non-minorities is even smaller. Moreover, if we abandon a rigid quota in favor of a system that uses race as a "plus" factor, the average cost to each non-minority applicant is smaller still.
226. See supra note 113 and accompanying text.
227. See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 282-83 (1986) (plurality opinion): In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial of a future employment opportunity is not as intrusive as loss of an existing job.
228. While conceding these points, one still might argue that over time the diversity rationale imposes a greater burden on non-minority applicants than the remedial rationale because the former, unlike the latter, has "no logical stopping point." I refute this argument infra Part III. E.
229. I use the term "minorities" here to denote the intended beneficiaries of affirmative action. I recognize, however, that affirmative action often does not benefit all minorities. Indeed, there has been substantial criticism that diversity-based affirmative action imposes unjustified caps on the admission of Asian Americans and Jews. See, e.g., DANA Y. TAKAGI, THE RETREAT FROM RACE: ASIAN-AMERICAN ADMISSIONS AND RACIAL POLITICS 57-83 (1992) (describing how university officials have used the diversity rationale to limit admission of Asian Americans); Richard A. Posner, The Bakke Case and the Future of "Affirmative Action," 67 CAL. L. REV. 171, 183 (1979) (doubting that "the City University of New York could try to make a preferential admissions policy politically attractive by designating Jews as a preferred group along with blacks and Puerto Ricans"). In general, for a given university, it may be true that fewer Asian Americans or Jews will be admitted under a diversity-based admissions policy than under a process based only on grades and test scores. However, where a university strives to ensure mira-group diversity, the fact that certain minority groups are over-represented in the pool of qualified applicants should not preclude assigning a diversity-based racial preference to name members of those groups. More fundamentally, the diversity rationale, properly implemented, forbids a university from selectively disadvantaging Asian American or Jewish applicants on the basis of their race or ethnicity. Like non-minority applicants who do not benefit from a racial preference, Asian American and Jewish applicants are entitled to have their other (non-racial, non-ethnic) qualifications "place[d] . . . on the same footing for consideration" when a university evaluates their potential contribution to educational diversity. Bakke, 438 U.S. at 317 (opinion of Powell, J.). The diversity rationale does not permit the cost of a racial preference to be imposed disproportionately on particular non-preferred groups.
230. I use the term "minorities" here to denote the intended beneficiaries of affirmative action. I recognize, however, that affirmative action often does not benefit all minorities. Indeed, there has been substantial criticism that diversity-based affirmative action imposes unjustified caps on the admission of Asian Americans and Jews. See, e.g., DANA Y. TAKAGI, THE RETREAT FROM RACE: ASIAN-AMERICAN ADMISSIONS AND RACIAL POLITICS 57-83 (1992) (describing how university officials have used the diversity rationale to limit admission of Asian Americans); Richard A. Posner, The Bakke Case and the Future of "Affirmative Action," 67 CAL. L. REV. 171, 183 (1979) (doubting that "the City University of New York could try to make a preferential admissions policy politically attractive by designating Jews as a preferred group along with blacks and Puerto Ricans"). In general, for a given university, it may be true that fewer Asian Americans or Jews will be admitted under a diversity-based admissions policy than under a process based only on grades and test scores. However, where a university strives to ensure mira-group diversity, the fact that certain minority groups are over-represented in the pool of qualified applicants should not preclude assigning a diversity-based racial preference to name members of those groups. More fundamentally, the diversity rationale, properly implemented, forbids a university from selectively disadvantaging Asian American or Jewish applicants on the basis of their race or ethnicity. Like non-minority applicants who do not benefit from a racial preference, Asian American and Jewish applicants are entitled to have their other (non-racial, non-ethnic) qualifications "place[d] . . . on the same footing for consideration" when a university evaluates their potential contribution to educational diversity. Bakke, 438 U.S. at 317 (opinion of Powell, J.). The diversity rationale does not permit the cost of a racial preference to be imposed disproportionately on particular non-preferred groups.
231. Posner, The DeFunis Case, supra note 10, at 12.
232. See, e.g., John Bunzel, Affirmative Action Admissions: How It 'Works' at the University of California-Berkeley, PUB. INTEREST, Fall 1988, at 111.
233. Neil Rudenstine offers a concise rebuttal to the conventional concern about "stigma." First, he argues that this worry would be more compelling if it were voiced by a stronger consensus of the affirmative action beneficiaries who are purportedly stigmatized. Second, against the backdrop of centuries of social and legal stigmatization of racial minorities, it seems implausible that eliminating affirmative action would mitigate the stigma they continue to face. See RUDENSTINE, supra note 8, at 49-50. Moreover, a recent empirical study rebuts the concern that affirmative action sets minority students up for failure. See Kane, supra note 5. Using 1992 follow-up data on over 30,000 students who graduated in 1982 from over 1000 public and private high schools nation-wide, Kane found that the benefits associated with attending a more selective school are no smaller for black and Hispanic students than for other students. Id. at 18-19. In particular, Kane found no significant racial difference in the relationship between college selectivity and post-college earnings or undergraduate degree completion rates. Id. at 16-18.
234. See Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 615 (1990) (O'Connor, J., dissenting); see also Hopwood v. Texas, 78 F.3d 932, 945-46 (5th Cir. 1996).
235. The influence of race on psychological development, socialization, and decision-making is well-substantiated. See, e.g., Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 HARV. L. REV. 817 (1991); Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987); Ian Haney Lopez, The Social Construction of Race, 29 HARV. C.R.-C.L. L. REV. 1 (1994); John Dovidio. "Aversive" Racism and the Need for Affirmative Action, CHRON. HIGHER EDUC., July 25, 1997, at A60; see also Metro Broadcasting, 497 U.S. at 580-81 & nn.31-34 (1990) (citing empirical studies demonstrating that minority ownership of radio and television stations "influences the selection of topics for news coverage and the presentation of editorial viewpoint, especially on matters of particular concern to minorities"); MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960s TO THE 1980s (1986); T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 COLUM. L. REV. 1060, 1067 & nn.35-37 (1991) (citing empirical studies).
236. The influence of race on psychological development, socialization, and decision-making is well-substantiated. See, e.g., Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 HARV. L. REV. 817 (1991); Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987); Ian Haney Lopez, The Social Construction of Race, 29 HARV. C.R.-C.L. L. REV. 1 (1994); John Dovidio. "Aversive" Racism and the Need for Affirmative Action, CHRON. HIGHER EDUC., July 25, 1997, at A60; see also Metro Broadcasting, 497 U.S. at 580-81 & nn.31-34 (1990) (citing empirical studies demonstrating that minority ownership of radio and television stations "influences the selection of topics for news coverage and the presentation of editorial viewpoint, especially on matters of particular concern to minorities"); MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960s TO THE 1980s (1986); T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 COLUM. L. REV. 1060, 1067 & nn.35-37 (1991) (citing empirical studies).
237. The influence of race on psychological development, socialization, and decision-making is well-substantiated. See, e.g., Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 HARV. L. REV. 817 (1991); Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987); Ian Haney Lopez, The Social Construction of Race, 29 HARV. C.R.-C.L. L. REV. 1 (1994); John Dovidio. "Aversive" Racism and the Need for Affirmative Action, CHRON. HIGHER EDUC., July 25, 1997, at A60; see also Metro Broadcasting, 497 U.S. at 580-81 & nn.31-34 (1990) (citing empirical studies demonstrating that minority ownership of radio and television stations "influences the selection of topics for news coverage and the presentation of editorial viewpoint, especially on matters of particular concern to minorities"); MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960s TO THE 1980s (1986); T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 COLUM. L. REV. 1060, 1067 & nn.35-37 (1991) (citing empirical studies).
238. The influence of race on psychological development, socialization, and decision-making is well-substantiated. See, e.g., Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 HARV. L. REV. 817 (1991); Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987); Ian Haney Lopez, The Social Construction of Race, 29 HARV. C.R.-C.L. L. REV. 1 (1994); John Dovidio. "Aversive" Racism and the Need for Affirmative Action, CHRON. HIGHER EDUC., July 25, 1997, at A60; see also Metro Broadcasting, 497 U.S. at 580-81 & nn.31-34 (1990) (citing empirical studies demonstrating that minority ownership of radio and television stations "influences the selection of topics for news coverage and the presentation of editorial viewpoint, especially on matters of particular concern to minorities"); MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960s TO THE 1980s (1986); T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 COLUM. L. REV. 1060, 1067 & nn.35-37 (1991) (citing empirical studies).
239. The influence of race on psychological development, socialization, and decision-making is well-substantiated. See, e.g., Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 HARV. L. REV. 817 (1991); Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987); Ian Haney Lopez, The Social Construction of Race, 29 HARV. C.R.-C.L. L. REV. 1 (1994); John Dovidio. "Aversive" Racism and the Need for Affirmative Action, CHRON. HIGHER EDUC., July 25, 1997, at A60; see also Metro Broadcasting, 497 U.S. at 580-81 & nn.31-34 (1990) (citing empirical studies demonstrating that minority ownership of radio and television stations "influences the selection of topics for news coverage and the presentation of editorial viewpoint, especially on matters of particular concern to minorities"); MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960s TO THE 1980s (1986); T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 COLUM. L. REV. 1060, 1067 & nn.35-37 (1991) (citing empirical studies).
240. The influence of race on psychological development, socialization, and decision-making is well-substantiated. See, e.g., Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 HARV. L. REV. 817 (1991); Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987); Ian Haney Lopez, The Social Construction of Race, 29 HARV. C.R.-C.L. L. REV. 1 (1994); John Dovidio. "Aversive" Racism and the Need for Affirmative Action, CHRON. HIGHER EDUC., July 25, 1997, at A60; see also Metro Broadcasting, 497 U.S. at 580-81 & nn.31-34 (1990) (citing empirical studies demonstrating that minority ownership of radio and television stations "influences the selection of topics for news coverage and the presentation of editorial viewpoint, especially on matters of particular concern to minorities"); MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960s TO THE 1980s (1986); T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 COLUM. L. REV. 1060, 1067 & nn.35-37 (1991) (citing empirical studies).
241. The influence of race on psychological development, socialization, and decision-making is well-substantiated. See, e.g., Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 HARV. L. REV. 817 (1991); Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987); Ian Haney Lopez, The Social Construction of Race, 29 HARV. C.R.-C.L. L. REV. 1 (1994); John Dovidio. "Aversive" Racism and the Need for Affirmative Action, CHRON. HIGHER EDUC., July 25, 1997, at A60; see also Metro Broadcasting, 497 U.S. at 580-81 & nn.31-34 (1990) (citing empirical studies demonstrating that minority ownership of radio and television stations "influences the selection of topics for news coverage and the presentation of editorial viewpoint, especially on matters of particular concern to minorities"); MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960s TO THE 1980s (1986); T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 COLUM. L. REV. 1060, 1067 & nn.35-37 (1991) (citing empirical studies).
242. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 316 (1978) (opinion of Powell, J.).
243. Id. at 317.
244. Id. at 318.
245. Metro Broadcasting, 497 U.S. at 604 (O'Connor, J., dissenting).
246. Cf Associated Gen. Contractors v. Coalition for Econ. Equity, 950 F.2d 1401, 1412-18 (9th Cir. 1991) (holding that bidding preferences for minority-owned contractors likely would survive strict scrutiny): Donaghy v. City of Omaha, 933 F.2d 1448, 1453 (8th Cir. 1991) (upholding a race-conscious promotion decision where the black candidate promoted "fully met the qualifications" for the position).
247. See, e.g., United States v. Paradise, 480 U.S. 149 (1987); Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421 (1986).
248. Indeed, that is why the admissions policies in Bakke ana Hopwood cannot be defended under the diversity rationale.
249. Metro Broadcasting, 497 U.S. at 618 (O'Connor, J., dissenting).
250. See Note, supra note 9, at 1369 n.93 ("[P]roponents of diversity do not argue that racial minorities contribute a particular position on a particular issue; rather, they claim that individuals from different races contribute a viewpoint informed by a variety of racial experiences."); Brief for the United States as Amicus Curiae Supporting Petitioners at 16, Texas v. Hopwood, 116 S. Ct. 2581 (1996) (No. 95-1773): [A] [minority] student reared in this country is likely to have had different life experiences, precisely because of his or her race, than an otherwise similarly situated white student. What each individual takes from those life experiences is unique; indeed, students may benefit from diversity by learning first-hand that "particular and distinct viewpoint[s] [do not] inhere in certain racial groups." Id. (alterations in original) (citation omitted).
251. See Amar & Katyal, supra note 9. at 1763 n.87 (noting that "Justice Powell's Bakke Appendix pointedly quoted Harvard's recognition of the importance of intra- as well as inter-racial diversity") (citing Regents of Univ. of Cal. v. Bakke. 438 U.S. 265, 324 (1978) (appendix to the opinion of Powell, J.)).
252. See Hopwood v. Texas. 78 F.3d 932, 945 (5th Cir. 1996) ("Diversity fosters, rather than minimizes, the use of race.").
253. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 275 (1986) (plurality opinion).
254. Id. at 276.
255. Id.; see also Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 614 (1990) (O'Connor, J., dissenting) (expressing disapproval of "unconstrained racial preferences" based on an "interest [that] would support indefinite use of racial classifications").
256. See Amar & Katyal. supra note 9, at 1754 ("As university affirmative action achieves its long-run effect of healing racial separation, division, discrimination, and inequality in American society, race will gradually become irrelevant and-like eye color or blood type - will cease to be significant for university admissions").
257. See Franks v. Bowman Transp. Co., 424 U.S. 747, 769 (1976) (explaining that the goal of remedial affirmative action is '"to recreate the conditions and relationships that would have been had there been no unfair [discrimination]'") (citation omitted).
258. Sunstein, supra note 101, at 763; see also Gewirtz, supra note 120, at 796 (noting that decision when to terminate corrective remedy "will necessarily be afflicted with . . . empirical uncertainties" and that "remedies might continue almost indefinitely because the taints of past discrimination may persist in some form almost indefinitely").
259. See Sunstein, supra note 101, at 763-64 (noting that "the question itself is of uncertain epistemological status"); see also International Bhd. of Teamsters v. United States, 431 U.S. 324, 372 (1977) ("This process of recreating the past will necessarily involve a degree of approximation and imprecision.").
260. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 499 (1989).
261. Sunstein, supra note 101, at 764.
262. At the conceptual level, the end goal of diversity seems easier to fathom than the end goal of remediation: instead of hypothesizing what our society would be like without its legacy of discrimination, the diversity rationale acknowledges the reality of racial tension in our society and seeks to eliminate it through education and understanding.
263. See, e.g., Missouri v. Jenkins, 515 U.S. 70, 102 (1995) (emphasizing that district courts, in deciding when to terminate desegregation orders, "must bear in mind that [their] end purpose is not only 'to remedy the violation' to the extent practicable, but also 'to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution'") (citation omitted); Freeman v. Pitts, 503 U.S. 467. 489 (1992) (explaining that the "ultimate objective" of federal desegregation decrees is "to return school districts to the control of local authorities").
264. Compare United States v. Paradise, 480 U.S. 149, 179 (1987) (upholding a 25% remedial hiring quota for Alabama state troopers based on 1980 census data showing that the state population was 26% black) (citing Paradise v. Prescott. 585 F. Supp. 72, 75 n.2 (M.D. Ala. 1983)). and Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 440-41 (1986) (upholding a 29% minority membership quota for a sheet metal workers' union based on the percentage of minorities in a geographically defined labor pool), with Regents of Univ. of Cal. v. Bakke, 438 U.S. 265. 315 (1978) (opinion of Powell. J.) (stating that educational diversity is not furthered by "simple ethnic diversity. in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups"). The point, of course, is that the remedial rationale does not logically entail a goal of racial proportionality any more than the diversity rationale does.
265. See Croson, 488 U.S. at 500 ("Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice."); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276-78 (1986) (plurality opinion); see also Wittmer v. Peters, 87 F.3d 916, 918 (7th Cir. 1996) (declaring that the state's use of racial preferences "must be substantiated and not merely asserted").
266. Croson, 488 U.S. at 500 (quoting Wygant. 476 U.S. at 277 (plurality opinion)).
267. See, e.g., Croson, 488 U.S. at 498-506; Hopwood v. Texas, 78 F.3d 932, 952-55 (5th Cir.), cert, denied, 116 S. Ct. 2581 (1996); Podberesky v. Kirwan, 38 F.3d 147, 153-55 (4th Cir. 1994).
268. Some cases have offered rudiments of such criteria. See Wittmer v. Peters, 87 F.3d 916, 920 (7th Cir. 1996) (discussed infra at notes 258-261 and accompanying text): Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d 207, 214-15 (4th Cir. 1993) (rejecting "subjective evidence" offered by police chief and "objective evidence" in the form of reports on urban riots as inadequate to substantiate an operational need for racial diversity in a police department); McDonald v. Hogness, 598 P.2d 707, 713 n.8 (Wash. 1979) (accepting a determination by a medical school and its faculty that a racially diverse student body best serves the school's educational needs).
269. See Metro Broadcasting, Inc. v. FCC. 497 U.S. 547, 615-16 (1990) (O'Connor, J., dissenting): [I]t will prove impossible to distinguish naked preferences for members of particular races from preferences for members of particular races because they possess certain valued views: No matter what its purpose, the Government will be able to claim that it has favored certain persons for their ability, stemming from race, to contribute distinctive views or perspectives.
270. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (internal quotation marks and citation omitted).
271. In addition to explaining its educational mission, the college could show the educational needs of its students by assembling profiles of a representative sample of entering students or survey data on their degree of exposure to people of other races prior to college. See, e.g., STANFORD UCMI REPORT, supra note 187, at 159-62 (presenting survey data showing that most undergraduates enter Stanford with a "general lack of understanding and inexperience" regarding racial and cultural differences).
272. See Regents of Univ. of Cal. v. Bakke. 438 U.S. 265, 314 (1978) (opinion of Powell, J.). Justice Powell wrote: An otherwise qualified medical student
273. See generally Note, supra note 9, at 1364-66.
274. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989).
275. Testimonial evidence need not be uniformly positive in order to establish diversity's educational value. Many of the most valuable learning experiences arise from incidents that initially produce tension. Real learning, in all its dimensions, rarely takes place altogether easily, without friction or pain . . . . [T]he educational benefits of diversity are often first experienced as forms of temporary dislocation and disorientation - just as they can eventually lead to increased understanding and friendship. Genuine risks and difficulties are involved, and it would be foolish to pretend otherwise. RUDENSTINE, supra note 8, at 20. However, where an institution consistently allows racial tension to hamper the educational process instead of harnessing it to create learning opportunities, its stated interest in educational diversity would rightly be less credible. See ] infra notes 269-275 and accompanying text.
276. See University of Pa. v. EEOC, 493 U.S. 182, 199 (1990) (unanimous opinion). The Court also noted that judges '"should show great respect for the faculty's professional judgment'" on academic matters. Id. (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985)).
277. See Bakke, 438 U.S. at 310 (opinion of Powell, J.); see also id. at 319 n.53.
278. Id. at 311.
279. Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 90 (1978).
280. Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d 207, 214 (4th Cir. 1993), cert, denied. 117 S. Ct. 1246 (1997). In Haves, the city of Charlotte defended its race-conscious promotion policy for police sergeants on the grounds that "effective law enforcement can only be accomplished in Charlotte with a racially diverse police force." Id. at 213. To support this "Operational need[] for diversity,'" id. at 213 n.5, the city offered the testimony of the chief of police. However, the court assigned little probative value to the testimony: We have no doubt that Chief Stone's opinion is based on his significant experience in the field of law enforcement and his genuine desire for the police department of the City of Charlotte to perform up to its highest potential. Nevertheless, the dangers of relying on subjective evidence to support utilization of racial classifications in employment promotion decisions are apparent. In this case. Chief Stone essentially offers the "confidence and acceptance of the community" as a justification for denying promotions to white police officers exclusively because of their race. If this is found to be enough evidence to justify the need for race-conscious policies, we fear others could use this same rationale for a much less benign purpose. Id. at 214. The court went on to write: "the City acknowledged that Chief Stone's opinion alone was insufficient, and that the City had to support its contention with Objective evidence' as well." Id.
281. See, e.g., ARTHUR W. CHICKERING, THE MODERN AMERICAN COLLEGE 225-26 (1981) (reviewing evidence that social settings with diversity "may foster increased tolerance and respect for differences in background, belief, and temperament . . . . Sustained encounters with persons different from oneself also foster the development of integrity: the gradual achievement of a set of personal values and of patterns of behavior congruent with those values.").
282. During the spring of 1997, Harvard's Graduate School of Education hosted three conferences that assembled academics, policy-makers, and university administrators to examine the current state of research on the educational value of racial diversity. The presentations included several studies that begin to provide empirical grounding for the diversity rationale; these will be published in a single volume in 1998. There is a firm consensus within the higher education community that much more research is needed.
283. Cf. Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d 207, 214-15 (4th Cir. 1993), cert, denied 117 S. Ct. 1246 (1997) (holding that the City did not provide sufficient evidence to survive summary judgment on its claim that racial diversity is essential to effective law enforcement and constitutes a compelling state interest). To substantiate its operational need for racial diversity in the police department, the City relied on three reports prepared in response to the Detroit riots in the 1960s. See id. at 214. These reports "recommended the recruitment of additional minority police officers as a means of improving community support and increasing the effectiveness of law enforcement." Id. at 215. While recognizing the reports as "objective evidence," the court held that "they contain no factual support for the City's position that diversity at all ranks, or specifically at the rank of sergeant, was essential to effective law enforcement in Charlotte, North Carolina, in February 1991, when the City made these promotions." Id. In essence, the court found the reports to have no probative value because their content was not adequately "particularized."
284. KENNETH FELDMAN & THEODORE NEWCOMB, THE IMPACT OF COLLEGE ON STUDENTS 48-49 (1994); see ALEXANDER ASTIN, ASSESSMENT FOR EXCELLENCE: THE PHILOSOPHY AND PRACTICE OF ASSESSMENT AND EVALUATION IN HIGHER EDUCATION 16-20 (1991) (explaining the basic design of the "input-environment-outcome" research method for assessing the educational impact of a particular environmental input).
285. KENNETH FELDMAN & THEODORE NEWCOMB, THE IMPACT OF COLLEGE ON STUDENTS 48-49 (1994); see ALEXANDER ASTIN, ASSESSMENT FOR EXCELLENCE: THE PHILOSOPHY AND PRACTICE OF ASSESSMENT AND EVALUATION IN HIGHER EDUCATION 16-20 (1991) (explaining the basic design of the "input-environment-outcome" research method for assessing the educational impact of a particular environmental input).
286. See Wittmer v. Peters, 87 F.3d 916, 920 (7th Cir. 1996).
287. Id.
288. Id.
289. Id.
290. Reginald Wilson observes that "African American participation in higher education in America's majority institutions, in any substantial numbers, is a relatively recent phenomenon." attributable in large part to the civil rights victories of the 1960s. Reginald Wilson, The Participation of African Americans in American Higher Education, in AMERICAN COUNCIL ON EDUCATION, MINORITIES IN HIGHER EDUCATION 195, 195-96 (Manuel J. Justiz et al. eds., 1994) [hereinafter MINORITIES], "[A]s recently as 1965. 600,000 African Americans were in college and 65 percent of them were in historically Black colleges. By 1980 African American enrollment had doubled to 1.2 million but only 20 percent were in historically Black colleges." Id. at 196. In the decade from 1982 to 1992, the population of Hispanic students higher education increased by 84% from 519.000 to 954,000. See Alfred de los Santos Jr. & Antonio Rigual, Progress of Hispanics in American Higher Education, in MINORITIES, supra, at 173. 182. Similarly, between 1982 and 1991, the enrollment of Asian Americans in higher education increased by 81% from 351,000 to 637,000. See Bob H. Suzuki, Higher Education Issues in the Asian American Community, in MINORITIES, supra, at 258, 265. Recent data show that African Americans, Hispanics, and Asian Americans currently constitute 10.3%, 7.7%, and 5.6%, respectively, of the total enrollment in American higher education. See Almanac Issue, CHRON. HIGHER EDUC., Aug. 29, 1997, at 4.
291. Reginald Wilson observes that "African American participation in higher education in America's majority institutions, in any substantial numbers, is a relatively recent phenomenon." attributable in large part to the civil rights victories of the 1960s. Reginald Wilson, The Participation of African Americans in American Higher Education, in AMERICAN COUNCIL ON EDUCATION, MINORITIES IN HIGHER EDUCATION 195, 195-96 (Manuel J. Justiz et al. eds., 1994) [hereinafter MINORITIES], "[A]s recently as 1965. 600,000 African Americans were in college and 65 percent of them were in historically Black colleges. By 1980 African American enrollment had doubled to 1.2 million but only 20 percent were in historically Black colleges." Id. at 196. In the decade from 1982 to 1992, the population of Hispanic students higher education increased by 84% from 519.000 to 954,000. See Alfred de los Santos Jr. & Antonio Rigual, Progress of Hispanics in American Higher Education, in MINORITIES, supra, at 173. 182. Similarly, between 1982 and 1991, the enrollment of Asian Americans in higher education increased by 81% from 351,000 to 637,000. See Bob H. Suzuki, Higher Education Issues in the Asian American Community, in MINORITIES, supra, at 258, 265. Recent data show that African Americans, Hispanics, and Asian Americans currently constitute 10.3%, 7.7%, and 5.6%, respectively, of the total enrollment in American higher education. See Almanac Issue, CHRON. HIGHER EDUC., Aug. 29, 1997, at 4.
292. Reginald Wilson observes that "African American participation in higher education in America's majority institutions, in any substantial numbers, is a relatively recent phenomenon." attributable in large part to the civil rights victories of the 1960s. Reginald Wilson, The Participation of African Americans in American Higher Education, in AMERICAN COUNCIL ON EDUCATION, MINORITIES IN HIGHER EDUCATION 195, 195-96 (Manuel J. Justiz et al. eds., 1994) [hereinafter MINORITIES], "[A]s recently as 1965. 600,000 African Americans were in college and 65 percent of them were in historically Black colleges. By 1980 African American enrollment had doubled to 1.2 million but only 20 percent were in historically Black colleges." Id. at 196. In the decade from 1982 to 1992, the population of Hispanic students higher education increased by 84% from 519.000 to 954,000. See Alfred de los Santos Jr. & Antonio Rigual, Progress of Hispanics in American Higher Education, in MINORITIES, supra, at 173. 182. Similarly, between 1982 and 1991, the enrollment of Asian Americans in higher education increased by 81% from 351,000 to 637,000. See Bob H. Suzuki, Higher Education Issues in the Asian American Community, in MINORITIES, supra, at 258, 265. Recent data show that African Americans, Hispanics, and Asian Americans currently constitute 10.3%, 7.7%, and 5.6%, respectively, of the total enrollment in American higher education. See Almanac Issue, CHRON. HIGHER EDUC., Aug. 29, 1997, at 4.
293. Reginald Wilson observes that "African American participation in higher education in America's majority institutions, in any substantial numbers, is a relatively recent phenomenon." attributable in large part to the civil rights victories of the 1960s. Reginald Wilson, The Participation of African Americans in American Higher Education, in AMERICAN COUNCIL ON EDUCATION, MINORITIES IN HIGHER EDUCATION 195, 195-96 (Manuel J. Justiz et al. eds., 1994) [hereinafter MINORITIES], "[A]s recently as 1965. 600,000 African Americans were in college and 65 percent of them were in historically Black colleges. By 1980 African American enrollment had doubled to 1.2 million but only 20 percent were in historically Black colleges." Id. at 196. In the decade from 1982 to 1992, the population of Hispanic students higher education increased by 84% from 519.000 to 954,000. See Alfred de los Santos Jr. & Antonio Rigual, Progress of Hispanics in American Higher Education, in MINORITIES, supra, at 173. 182. Similarly, between 1982 and 1991, the enrollment of Asian Americans in higher education increased by 81% from 351,000 to 637,000. See Bob H. Suzuki, Higher Education Issues in the Asian American Community, in MINORITIES, supra, at 258, 265. Recent data show that African Americans, Hispanics, and Asian Americans currently constitute 10.3%, 7.7%, and 5.6%, respectively, of the total enrollment in American higher education. See Almanac Issue, CHRON. HIGHER EDUC., Aug. 29, 1997, at 4.
294. See Arthur Levine, Editorial, The Meaning of Diversity, CHANGE, Sept.-Oct. 1991, at 4 (observing that institutions of higher education have only begun to grapple with the meaning and programmatic implications of contemporary racial diversity on campus); see generally STUDYING DIVERSITY IN HIGHER EDUCATION (Daryl G. Smith et al. eds.. 1994) [hereinafter STUDYING DIVERSITY].
295. See Arthur Levine, Editorial, The Meaning of Diversity, CHANGE, Sept.-Oct. 1991, at 4 (observing that institutions of higher education have only begun to grapple with the meaning and programmatic implications of contemporary racial diversity on campus); see generally STUDYING DIVERSITY IN HIGHER EDUCATION (Daryl G. Smith et al. eds.. 1994) [hereinafter STUDYING DIVERSITY].
296. Wittmer. 87 F.3d at 920.
297. The court in Wittmer noted that the defendants' experts: did not rely on generalities about racial balance or diversity; did not, for that matter, defend a goal of racial balance. They opined that the boot camp in Greene County would not succeed in its mission of pacification and reformation with as white a staff as it would have had if a black male had not been appointed to one of the lieutenant slots. Id.
298. In his seminal work, The Nature of Prejudice, Gordon Allport argued on the basis of empirical studies that increased interracial contact leads to improved relations only if individuals interact under conditions of equal status that emphasize cooperation toward common goals and that have the sanction of institutional authorities. See Allport, supra note 176, at 261-82.
299. Amar & Katyal, supra note 9, at 1778. See also id. ("Schools are not required to adopt affirmative action policies . . . but if they do choose to adopt diversity programs, then they should live up to the goal of encouraging people to learn from each other").
300. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226 (1985) (observing that federal courts are not well-suited "to evaluate the substance of the multitude of academic decisions that are made daily by faculty members of public educational institutions"); id. at 226 n.12 ("Academic freedom thrives . . . on autonomous decisionmaking by the academy itself."); Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (describing "academic freedom" as an "area[] in which government should be extremely reticent to tread" and noting that "[t]he essentiality of freedom in the community of American universities is almost self-evident . . . . To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.").
301. Of course, to substantiate an interest in educational diversity, a university must show that its admissions policy is consistent with that goal. In particular, it must show that the process takes race into account by using "pluses" not quotas, treats race as only one of many factors contributing to educational diversity, "does not insulate [any] individual from comparison with all other candidates for the available seats," and is "flexible enough to consider all elements of diversity in light of the particular qualifications of each applicant." Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 317 (1978) (opinion of Powell, J.); see id. at 315-20.
302. See Amar & Katyal, supra note 9, at 1778 ("If schools believe that minorities add to diversity, then they should not encourage different groups to cordon themselves off from each other . . . . [S]chools that permit de facto residential segregation may be estopped from pleading Bakke as a defense to affirmative action in admissions.").
303. This fact presents a significant challenge for community colleges and many state universities where peer interactions do not have major effects on educational outcomes largely because of age differences among students and the absence of a residential experience. See ALEXANDER W. ASTIN. WHAT MATTERS IN COLLEGE? 416 (1993).
304. Although there is no recipe for ensuring positive results, the higher education community in recent years has devoted considerable attention to developing effective strategies for making diversity "work." For discussions of emerging institutional practices, see STUDYING DIVERSITY, supra note 263; AMERICAN COUNCIL ON EDUCATION, MINORITIES ON CAMPUS: A HANDBOOK FOR ENHANCING DIVERSITY (Madeleine F. Green ed., 1989): INSTITUTE FOR THE STUDY OF SOCIAL CHANGE, UNIVERSITY OF CALIFORNIA, BERKELEY, THE DIVERSITY PROJECT: FINAL REPORT (1991) [hereinafter BERKELEY DIVERSITY PROJECT]; NATIONAL TASK FORCE FOR MINORITY ACHIEVEMENT IN HIGHER EDUCATION, EDUCATION COMMISSION OF THE STATES, ACHIEVING CAMPUS DIVERSITY: POLICIES FOR CHANGE (1990); RICHARD C. RICHARDSON & ELIZABETH F. SKINNER, ACHIEVING QUALITY AND DIVERSITY: UNIVERSITIES IN A MULTICULTURAL SOCIETY (1991): STANFORD UCMI REPORT, supra note 187: The Quest for Diversity, CHANGE, Sept.-Oct. 1991.
305. Although there is no recipe for ensuring positive results, the higher education community in recent years has devoted considerable attention to developing effective strategies for making diversity "work." For discussions of emerging institutional practices, see STUDYING DIVERSITY, supra note 263; AMERICAN COUNCIL ON EDUCATION, MINORITIES ON CAMPUS: A HANDBOOK FOR ENHANCING DIVERSITY (Madeleine F. Green ed., 1989): INSTITUTE FOR THE STUDY OF SOCIAL CHANGE, UNIVERSITY OF CALIFORNIA, BERKELEY, THE DIVERSITY PROJECT: FINAL REPORT (1991) [hereinafter BERKELEY DIVERSITY PROJECT]; NATIONAL TASK FORCE FOR MINORITY ACHIEVEMENT IN HIGHER EDUCATION, EDUCATION COMMISSION OF THE STATES, ACHIEVING CAMPUS DIVERSITY: POLICIES FOR CHANGE (1990); RICHARD C. RICHARDSON & ELIZABETH F. SKINNER, ACHIEVING QUALITY AND DIVERSITY: UNIVERSITIES IN A MULTICULTURAL SOCIETY (1991): STANFORD UCMI REPORT, supra note 187: The Quest for Diversity, CHANGE, Sept.-Oct. 1991.
306. Although there is no recipe for ensuring positive results, the higher education community in recent years has devoted considerable attention to developing effective strategies for making diversity "work." For discussions of emerging institutional practices, see STUDYING DIVERSITY, supra note 263; AMERICAN COUNCIL ON EDUCATION, MINORITIES ON CAMPUS: A HANDBOOK FOR ENHANCING DIVERSITY (Madeleine F. Green ed., 1989): INSTITUTE FOR THE STUDY OF SOCIAL CHANGE, UNIVERSITY OF CALIFORNIA, BERKELEY, THE DIVERSITY PROJECT: FINAL REPORT (1991) [hereinafter BERKELEY DIVERSITY PROJECT]; NATIONAL TASK FORCE FOR MINORITY ACHIEVEMENT IN HIGHER EDUCATION, EDUCATION COMMISSION OF THE STATES, ACHIEVING CAMPUS DIVERSITY: POLICIES FOR CHANGE (1990); RICHARD C. RICHARDSON & ELIZABETH F. SKINNER, ACHIEVING QUALITY AND DIVERSITY: UNIVERSITIES IN A MULTICULTURAL SOCIETY (1991): STANFORD UCMI REPORT, supra note 187: The Quest for Diversity, CHANGE, Sept.-Oct. 1991.
307. Although there is no recipe for ensuring positive results, the higher education community in recent years has devoted considerable attention to developing effective strategies for making diversity "work." For discussions of emerging institutional practices, see STUDYING DIVERSITY, supra note 263; AMERICAN COUNCIL ON EDUCATION, MINORITIES ON CAMPUS: A HANDBOOK FOR ENHANCING DIVERSITY (Madeleine F. Green ed., 1989): INSTITUTE FOR THE STUDY OF SOCIAL CHANGE, UNIVERSITY OF CALIFORNIA, BERKELEY, THE DIVERSITY PROJECT: FINAL REPORT (1991) [hereinafter BERKELEY DIVERSITY PROJECT]; NATIONAL TASK FORCE FOR MINORITY ACHIEVEMENT IN HIGHER EDUCATION, EDUCATION COMMISSION OF THE STATES, ACHIEVING CAMPUS DIVERSITY: POLICIES FOR CHANGE (1990); RICHARD C. RICHARDSON & ELIZABETH F. SKINNER, ACHIEVING QUALITY AND DIVERSITY: UNIVERSITIES IN A MULTICULTURAL SOCIETY (1991): STANFORD UCMI REPORT, supra note 187: The Quest for Diversity, CHANGE, Sept.-Oct. 1991.
308. Although there is no recipe for ensuring positive results, the higher education community in recent years has devoted considerable attention to developing effective strategies for making diversity "work." For discussions of emerging institutional practices, see STUDYING DIVERSITY, supra note 263; AMERICAN COUNCIL ON EDUCATION, MINORITIES ON CAMPUS: A HANDBOOK FOR ENHANCING DIVERSITY (Madeleine F. Green ed., 1989): INSTITUTE FOR THE STUDY OF SOCIAL CHANGE, UNIVERSITY OF CALIFORNIA, BERKELEY, THE DIVERSITY PROJECT: FINAL REPORT (1991) [hereinafter BERKELEY DIVERSITY PROJECT]; NATIONAL TASK FORCE FOR MINORITY ACHIEVEMENT IN HIGHER EDUCATION, EDUCATION COMMISSION OF THE STATES, ACHIEVING CAMPUS DIVERSITY: POLICIES FOR CHANGE (1990); RICHARD C. RICHARDSON & ELIZABETH F. SKINNER, ACHIEVING QUALITY AND DIVERSITY: UNIVERSITIES IN A MULTICULTURAL SOCIETY (1991): STANFORD UCMI REPORT, supra note 187: The Quest for Diversity, CHANGE, Sept.-Oct. 1991.
309. Although there is no recipe for ensuring positive results, the higher education community in recent years has devoted considerable attention to developing effective strategies for making diversity "work." For discussions of emerging institutional practices, see STUDYING DIVERSITY, supra note 263; AMERICAN COUNCIL ON EDUCATION, MINORITIES ON CAMPUS: A HANDBOOK FOR ENHANCING DIVERSITY (Madeleine F. Green ed., 1989): INSTITUTE FOR THE STUDY OF SOCIAL CHANGE, UNIVERSITY OF CALIFORNIA, BERKELEY, THE DIVERSITY PROJECT: FINAL REPORT (1991) [hereinafter BERKELEY DIVERSITY PROJECT]; NATIONAL TASK FORCE FOR MINORITY ACHIEVEMENT IN HIGHER EDUCATION, EDUCATION COMMISSION OF THE STATES, ACHIEVING CAMPUS DIVERSITY: POLICIES FOR CHANGE (1990); RICHARD C. RICHARDSON & ELIZABETH F. SKINNER, ACHIEVING QUALITY AND DIVERSITY: UNIVERSITIES IN A MULTICULTURAL SOCIETY (1991): STANFORD UCMI REPORT, supra note 187: The Quest for Diversity, CHANGE, Sept.-Oct. 1991.
310. Although there is no recipe for ensuring positive results, the higher education community in recent years has devoted considerable attention to developing effective strategies for making diversity "work." For discussions of emerging institutional practices, see STUDYING DIVERSITY, supra note 263; AMERICAN COUNCIL ON EDUCATION, MINORITIES ON CAMPUS: A HANDBOOK FOR ENHANCING DIVERSITY (Madeleine F. Green ed., 1989): INSTITUTE FOR THE STUDY OF SOCIAL CHANGE, UNIVERSITY OF CALIFORNIA, BERKELEY, THE DIVERSITY PROJECT: FINAL REPORT (1991) [hereinafter BERKELEY DIVERSITY PROJECT]; NATIONAL TASK FORCE FOR MINORITY ACHIEVEMENT IN HIGHER EDUCATION, EDUCATION COMMISSION OF THE STATES, ACHIEVING CAMPUS DIVERSITY: POLICIES FOR CHANGE (1990); RICHARD C. RICHARDSON & ELIZABETH F. SKINNER, ACHIEVING QUALITY AND DIVERSITY: UNIVERSITIES IN A MULTICULTURAL SOCIETY (1991): STANFORD UCMI REPORT, supra note 187: The Quest for Diversity, CHANGE, Sept.-Oct. 1991.
311. Again, the Wittmer opinion is instructive. Chief Judge Posner did not require rigorous social scientific evidence to find under strict scrutiny that race-conscious hiring furthers a compelling functional interest. However, he added an important qualifier: We do not hold that after correctional boot camps have been around long enough to enable thorough academic (or academic-quality) study of the racial problems involved in their administration, prison officials can continue to coast on expert evidence that extrapolates to boot camps from the experts' research on conventional prisons. Wittmer v. Peters, 87 F.3d 916, 920-21 (7th Cir. 1996).
312. RUDENSTINE, supra note 8, at 57. Exemplary self-studies of this sort have been conducted by Stanford and UC Berkeley. See STANFORD UCMI REPORT, supra note 187; BERKELEY DIVERSITY PROJECT, supra note 272; see also STUDYING DIVERSITY, supra note 263, at 88-94 (describing self-studies conducted by 13 other institutions).
313. RUDENSTINE, supra note 8, at 57. Exemplary self-studies of this sort have been conducted by Stanford and UC Berkeley. See STANFORD UCMI REPORT, supra note 187; BERKELEY DIVERSITY PROJECT, supra note 272; see also STUDYING DIVERSITY, supra note 263, at 88-94 (describing self-studies conducted by 13 other institutions).
314. RUDENSTINE, supra note 8, at 58.
315. Cf. United States v. Paradise, 480 U.S. 149, 171 (1987) (plurality opinion) (describing several factors implicated by the "narrow tailoring" test in the remedial context).