Moving forward? Diversity as a paradox? A critical race view

Catholic University Law Review

Volumn 57, Issue 4, 2008, Pages 1059-1098

  Hutchison, Harry G ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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EID: 58249107831     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (342)

1. JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW 801 (7th ed. 2004) ("The Court in Wygant, as in Bakke, did not resolve the issue of what standard should be applied to determine whether a state or local government program designed to aid members of a minority race violated the equal protection clause.").
2. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326-27 (2003); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273-74 (1986); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 290-91 (1978).
3. See Wygant, 476 U.S. at 270;
4. see also NOWAK & ROTUNDA, supra note 1, at 801 (identifying purpose of layoff system).
5. Wygant, 476 U.S. at 272.
6. See id. at 279-80 (opinion of Powell, J.);
7. id. at 285-87 (O'Connor, J., concurring in part and concurring in the judgment);
8. id. at 294-95 (White, J., concurring in the judgment);
9. id. at 301-03 (Marshall, J., dissenting);
10. id. at 315-16 (Stevens, J., dissenting);
11. see also NOWAK & ROTUNDA, supra note 1, at 816-18 (for discussion of the various standards of review articulated in the five opinions).
12. Wygant, 476 U.S. at 287 (O'Connor, J., concurring).
13. Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
14. Id. at 326 (citing Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989)).
15. Katherine Kersten, Teach Character to Cut Racial Gap in School Results, STARTRIBUNE (Minneapolis, Minn.), Feb. 22, 2007, at B1.
16. See also ABIGAIL THERNSTROM AND STEPHAN THERNSTROM, NO EXCUSES: CLOSING THE RACIAL GAP IN LEARNING 12 (2003) ("The [National Assessment of Educational Progress] results show a frightening gap between the basic academic skills of the average African-American or Latino student and those of the typical white or Asian American.").
17. See, e.g., Ronald Dworkin, The Supreme Court Phalanx, N.Y. REV. BOOKS, Sept. 27, 2007, at 92, 95 (describing Justice O'Connor's opinions as "increasingly sophisticated and thoughtful"). Admiration of Justice O'Connor may be tied to her early embrace of diversity.
18. See, e.g., Wygant, 476 U.S. at 286-87 (O'Connor, J., concurring in part and concurring in the judgment) (signaling her willingness to uphold a school board program that considered race in hiring of teachers so as to create a racially diverse faculty in schools).
19. But see E-mail from Derrick A. Bell, Jr., Visiting Professor of Law, N.Y. Univ. Sch. of Law, to Harry G. Hutchison, Professor of Law, George Mason Univ. Sch. of Law (Dec. 19, 2007) (on file with author) (stating that there is little reason to celebrate "Justice O'Connor's contribution to the nation's discussion on race").
20. Dworkin, supra note 9, at 92.
21. Id.
22. 127 S. Ct. 2738 (2007).
23. Dworkin, supra note 9, at 92.
24. Samuel Estreicher, The Non-Preferment Principle and the "Racial Tiebreaker" Cases, 2006-2007 CATO SUP. CT. REV. 239, 239-40 (2007), available at http://www.cato.org/pubs/ scr/2007/.
25. ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY 235 (Am. ed. 1981) [hereinafter MACINTYRE, AFTER VIRTUE].
26. See also Harry G. Hutchison, Shaming Kindergarteners? Channeling Dred Scott? Freedom of Expression Rights in Public Schools, 56 CATH. U. L. REV. 361, 361-68 (2007) (noting the "cultural separation" and tension between opposing efforts to either restore religion to or remove religion from public life).
27. MACINTYRE, AFTER VIRTUE, supra note 15, at 23 5.
28. Id. ("None the less Marx was fundamentally right in seeing conflict and not consensus at the heart of modern social structure.").
29. R.J. Snell, Upon This Rock: Human Realism and Geivett's Myth, 9 PHILOSOPHIA CHRISTI 365, 365 (2007)
30. (quoting R. Douglas Geivett, Is God a Story? Postmodernity and the Task of Theology, in CHRISTIANITY AND THE POSTMODERN TURN: SIX VIEWS 37-38 (Myron B. Penner ed., 2005)).
31. Id. at 365-66.
32. Id. at 368 (quoting THE LONERGAN READER 388 (Mark D. Morelli & Elizabeth A. Morelli eds., 1997)).
33. Id.
34. Id.
35. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 221 (1995).
36. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007); Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003).
37. Compare Grutter, 539 U.S. at 328 ("The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer."), with id. at 386-87 (Rehnquist, C.J., dissenting) ("I do not believe that the Constitution gives the Law School such free rein in the use of race.").
38. Compare id. at 329 (majority opinion) ("In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy . . . ."), with id. at 362 (Thomas, J., dissenting) ("[U]nder strict scrutiny, the Law School's assessment of the benefits of racial discrimination and devotion to the admissions status quo are not entitled to any sort of deference, grounded in the First Amendment or anywhere else.").
39. See, e.g., id. at 346 (Ginsburg, J., concurring).
40. 539 U.S. 306 (2003).
41. 539 U.S. 244 (2003).
42. 127 S. Ct. 2738 (2007).
43. See, e.g., Grutter, 539 U.S. at 323 (majority opinion) (endorsing Justice Powell's Bakke opinion in which he rejected the "interest in 'reducing the historic deficit of traditionally disfavored minorities in medical schools . . .' as an unlawful interest in racial balancing" (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 306 (1978))).
44. Id. ("As part of its goal of 'assembling a class that is both exceptionally academically qualified and broadly diverse,' the Law School seeks to 'enroll a "critical mass" of minority students.' The Law School's interest is not simply 'to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.' That would amount to outright racial balancing, which is patently unconstitutional." (quoting Bakke, 438 U.S. at 307 (opinion of Powell, J.) (citations omitted))).
45. Bakke, 438 U.S. at 306 (opinion of Powell, J.).
46. Grutter, 539 U.S. at 379 (Rehnquist, C.J., dissenting).
47. See id. ("Before the Court's decision today, we consistently applied the same strict scrutiny analysis regardless of the government's purported reason for using race and regardless of the setting in which race was being used. We rejected calls to use more lenient review in the face of claims that race was being used in 'good faith' . . . .").
48. Id. at 373 (Thomas, J., concurring in part and dissenting in part) (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 241 (1995) (Thomas, J., concurring in part and concurring in the judgment)).
49. See Bakke, 438 U.S. at 310 (opinion of Powell, J.) (rejecting an interest in remedying societal discrimination).
50. Grutter, 539 U.S. at 364 (Thomas, J., concurring in part and dissenting in part) (citing Lamont Flowers & Ernest T. Pascarella, Cognitive Effects of College Racial Composition on African American Students After 3 Years of College, 40 J. COLL. STUDENT DEV. 669, 674 (1999) (noting "the growing evidence that . . . heterogeneity actually impairs learning among black students")).
51. Id. at 365 (citing Walter R. Allen, The Color of Success: African-American College Student Outcomes at Predominantly White and Historically Black Public Colleges and Universities, 62 HARV. EDUC REV. 26, 35 (1992)).
52. See, e.g, Michelle Adams, Radical Integration, 94 CAL. L. REV. 261, 267 (2006) ("[R]adical integration[] should both form the centerpiece of a progressive social agenda and be aggressively advanced as a political goal.").
53. See, e.g., ROY L. BROOKS, INTEGRATION OR SEPARATION?: A STRATEGY FOR RACIAL EQUALITY 190 (1996) (finding value in "limited separation," which can be defined as "voluntary racial isolation that serves to support and nurture individuals within the group without unnecessarily trammeling the interests of other individuals or groups").
54. See, e.g., Cruz Reynoso & Cory Amran, Diversity in Legal Education: A Broader View, a Deeper Commitment, 52 J. LEGAL EDUC 491, 492 (2002) ("[S]chools must come to view diversity as synonymous with excellence in[] education. . . . [C]ompetition, globalization, and the demands of our increasingly complex and dynamic society, will require that 'diversity' be a multidimensional concept. . . . Diversity must become the thriving norm.").
55. See, e.g., Michael Selmi, Race in the City: The Triumph of Diversity and the Loss of Integration, 22 J.L. & POL. 49, 79 (2006) ("Diversity . . . can be anything to almost anyone: a slogan or a mandate, a program or a label, but there need not be any shared purpose. . . . [A]ny concept that can be used liberally and interchangeably by Republican and Democratic Presidents alike is probably a term without significant content").
56. See, e.g., Joseph Pereira, School Integration Efforts Face Renewed Opposition, WALL ST. J., Oct. 11, 2007, at A1.
57. Id.
58. Id.
59. See Wendy Parker, Valuing Integration: Lessons from Teachers, WAKE FOREST U. LEGAL STUD. RES. PAPER SERIES, Sept. 2007, at 4, http://ssrn.com/abstract=1014366 (noting minority support for segregation because of "integration's failure to deliver educational quality and its assumption that all-minority schools are bad schools").
60. Pereira, supra note 44.
61. See id.
62. Adams, supra note 40, at 266-67.
63. Dworkin, supra note 9, at 92.
64. Adams, supra note 40, at 266-67.
65. See, e.g., Lisa W. Foderaro, Hasidic Public School Loses Again Before U.S. Supreme Court, but Supporters Persist, N.Y. TIMES, Oct. 13, 1999, at B5 (discussing the attempt by Hasidic Jews to carve out a separate public school district in upstate New York).
66. ALASDAIR MACINTYRE, EDITH STEIN: A PHILOSOPHICAL PROLOGUE, 1913-1922, 12-13 (2006) [hereinafter MACINTYRE, EDITH STEIN].
67. Parker, supra note 47, at 35.
68. Id.
69. Id.
70. Id.
71. JAY P. GREENE ET AL., EDUCATION MYTHS: WHAT SPECIAL INTEREST GROUPS WANT YOU TO BELIEVE ABOUT OUR SCHOOLS - AND WHY IT ISN'T SO 60 (2005).
72. Id. (emphasis added). Professor Greene also describes evidence that suggests a low correlation "between teacher experience and student achievement."
73. Id. at 65.
74. Among other myths that Professor Greene uncovers is "the money myth." Id. at 8.
75. Over the past thirty years, spending per pupil has doubled, but student performance, as measured by the National Assessment of Education Progress, has remained unchanged. Id. at 8-11.
76. Id. at 201 (emphasis added).
77. But see id. at 201-02 (noting that while the American Federation of Teachers asserts that '"private schools are . . . less racially diverse' than public schools," others argue that the private school voucher movement constitutes an attempt to escape integration (citation omitted)).
78. Id. at 204.
79. Id. at 203-04 ("More minority students, however, is not the same as more integration. If it were, then many Southern schools during the era of Jim Crow would have been wonderfully integrated due to their very high proportion of minority students. By this standard, Brown v. Board of Education was a terrible defeat for integration. . . . Clearly, what we really mean by integration is having a balanced mix of different racial groups rather than just greater numbers of certain groups.").
80. See id. at 204 ("School systems themselves, whether public or private, are frequently segregated, but [the method of measuring the distribution of racial groups] has no way to detect segregation at that level.").
81. Id. at 216 (noting "reports of significantly fewer racial conflicts in private schools").
82. Id.
83. See, e.g., Harry G. Hutchison, Liberal Hegemony? School Vouchers and the Future of the Race, 68 MO. L. REV. 559, 594 (2003) [hereinafter Hutchison, Liberal Hegemony?] (contesting the claim that school choice contributes to racial fragmentation and showing that, instead, public schools contribute to racial isolation and subordination).
84. Suzanna Sherry, Responsible Republicanism: Educating for Citizenship, 62 U. CHI. L. REV. 131, 156 (1995).
85. Adam Meyerson, Foreword to SAMUEL CASEY CARTER, NO EXCUSES: LESSONS FROM 21 HIGH-PERFORMING, HIGH-POVERTY SCHOOLS 1 (4th ed. 2000).
86. See GREENE ET AL., supra note 59, at 10 fig. 1.1.
87. THERNSTROM & THERNSTROM, supra note 8, at 12 ("By twelfth grade, on average, black students are four years behind those who are white or Asian. Hispanics don't do much better.").
88. Hutchison, Liberal Hegemony?, supra note 67, at 562.
89. Kersten, supra note 8; .
90. see also Paul Tough, What It Takes To Make a Student, N.Y. TIMES, Nov. 26, 2006 (Mag.), at 44, 50 (finding, in the article that Kersten relied on, that the charter schools "achieving the most impressive results with poor and minority students tend to follow three practices": (1) "require many more hours of class time than a typical public school"; (2) set "explicit goals" for "classroom instruction and lesson planning"; and (3) "guide the behavior, and even the values of. . . students by teaching . . . character").
91. THERNSTROM & THERNSTROM, supra note 8, at 7.
92. See generally Hutchison, Liberal Hegemony?, supra note 67, at 582-89 (describing how public schools embraced the ideology of racial and religious subordination).
93. See infra Part III.B.3.
94. As defined herein, the term "outsiders" includes African Americans and members of other disadvantaged groups.
95. STANLEY CROUCH, THE ALL- AMERICAN SKIN GAME, OR, THE DECOY OF RACE: THE LONG AND THE SHORT OF IT, 1990-1994 10 (1995).
96. Angela P. Harris, Foreword: The Jurisprudence of Reconstruction, 82 CAL. L. REV. 741, 750 (1994).
97. John O. Calmore, Critical Race Theory, Archie Shepp, and Fire Music: Securing an Authentic Intellectual Life in a Multicultural World, 65 S. CAL. L. REV. 2129, 2132 (1992).
98. Harry Hutchison, Toward a Critical Race Reformist Conception of Minimum Wage Regimes: Exploding the Power of Myth, Fantasy, and Hierarchy, 34 HARV. J. ON LEGIS. 93, 94 (1997) [hereinafter Hutchison, Toward a Critical Race Reformist Conception].
99. JOHN GRAY, POST-LIBERALISM: STUDIES IN POLITICAL THOUGHT 4 (1993).
100. See id. at 11-12 (noting that "all modern states operate vast redistributional welfare systems . . . [and] exist[] in practice to satisfy the private preferences of collusive interest groups").
101. RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 382 (1981).
102. Bernard Yack, Liberalism Without Illusions: An Introduction to Judith Shklar's Political Thought, in LIBERALISM WITHOUT ILLUSIONS: ESSAYS ON LIBERAL THEORY AND THE POLITICAL VISION OF JUDITH N. SHKLAR 1, 8-9 (Bernard Yack ed., 1996) (quoting JUDITH N. SHKLAR, THE FACES OF INJUSTICE 115 (1990)).
103. LANI GUINIER & GERALD TORRES, THE MINER'S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY 169 (2002).
104. Yack, supra note 85, at 8-9.
105. Hutchison, Toward a Critical Race Reformist Conception, supra note 81, at 94 (emphasis added).
106. Mary I. Coombs, Outsider Scholarship: The Law Review Stories, 63 U. COLO. L. REV. 683, 684 (1992).
107. Grutter v. Bollinger, 539 U.S. 306, 337 (2003).
108. PETER H. SCHUCK, DIVERSITY IN AMERICA: KEEPING GOVERNMENT AT A SAFE DISTANCE 3 (2003).
109. See, e.g., LARRY ALEXANDER, IS THERE A RIGHT OF FREEDOM OF EXPRESSION? 169 (2005) (noting that this "conception of liberalism admits to being itself a way of life," with "a diversity of religions, associations, occupations, ideas, and so forth . . . from which to choose").
110. Id.
111. See, e.g., Adams, supra note 40, at 263-64 (asserting the view that a central purpose of integration was combating racism).
112. OS GUINNESS, THE CALL: FINDING AND FULFILLING THE CENTRAL PURPOSE OF YOUR LIFE 10 (2003).
113. Id. at 22.
114. Id.
115. Id.
116. Adams, supra note 40, at 263-64.
117. Id. at 264 (using Dictionary.com's definition of "assimilation").
118. Id.
119. Id.
120. Selmi, supra note 43, at 75 (footnote omitted).
121. See id.
122. Id. (footnote omitted).
123. H.L.A. HART, THE CONCEPT OF LAW 1 (2d ed. 1994).
124. SCHUCK, supra note 91, at 40-41 ("Neither Herodotus nor subsequent historians, however, have identified societies valuing diversity as a positive ideal to be celebrated and actively and collectively pursued. Most often, diversity was seen as a potentially dangerous condition that threatened social turmoil and hence must be carefully controlled.").
125. Id. at 41.
126. Id.
127. See, e.g., Adams, supra note 40, at 275 ("My vision of integration is radical . . . . [I]t recognizes that racial segregation is the root or source of racial inequality and that racial integration is the only adequate antidote. Racial segregation structures, maintains, and perpetuates inequality across virtually every indicia of social, political, educational and economic well being.").
128. Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (allowing race conscious admissions grounded in the notion that educational diversity constitutes a compelling interest that is narrowly tailored to the government's interest).
129. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2746 (2007) (disallowing reliance on race as a basis for assigning students in order to achieve racial balance within a predetermined range based on the racial composition of the school district as a whole).
130. David E. Bernstein & Ilya Somin, Judicial Power and Civil Rights Reconsidered, 114 YALE L.J. 591, 593 (2004) (book review) (citation omitted).
131. Id.
132. Id.
133. Id.
134. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 301 (1955).
135. See, e.g., Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20 (1969) (per curiam) ("Under explicit holdings of this Court the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.").
136. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2767 (2007) (emphasis added).
137. NOWAK & ROTUNDA, supra note 1, at 764.
138. Compare Parents Involved, 127 S. Ct. at 2800 (Breyer, J., dissenting) (noting "that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so"), with id. at 2768 (majority opinion) (arguing that the way to "remove[] the vestiges of past segregation . . . is to stop assigning students on a racial basis" (citation omitted)).
139. NOWAK & ROTUNDA, supra note 1, at 764.
140. Brown v. Bd. of Educ. (Brown I), 347 U.S. 483, 493 (1954).
141. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 301 (1955).
142. NOWAK & ROTUNDA, supra note 1, at 765.
143. Id.
144. Id.
145. Id. (explaining that while de jure segregation is actionable, de facto desegregation does not require judicial intervention).
146. Steven Yates, What Went Wrong with Affirmative Action (And Why It Never Could Have Gone Right), LEWROCKWELL.COM, Jan. 25, 2003, http://www.lewrockwell.com/yates/yates70.html.
147. Id.
148. Adams, supra note 40, at 272.
149. Yates, supra note 129, at 1.
150. See, e.g., Freeman v. Pitts, 503 U.S. 467, 494 (1992) (instructing that racial balancing should only be used as a solution to a de jure constitutional violation);
151. see also Grutter v. Bollinger, 539 U.S. 306, 328 (2003) ("But we have never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination.").
152. See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 310 (1978) (opinion of Powell, J.) ("[T]he purpose of helping certain groups . . . perceived as victims of 'societal discrimination' does not justify a classification that imposes disadvantages upon persons . . . who bear no responsibility . . . .").
153. See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 STAN. L. REV. 317, 322 (1987) ("Traditional notions of intent do not reflect the fact that decisions about racial matters are influenced in large part by factors that can be characterized as neither intentional - in the sense that certain outcomes are self-consciously sought - nor unintentional - in the sense that the outcomes are random, fortuitous, and uninfluenced by the decisionmaker's beliefs, desires, and wishes." (citation omitted)).
154. Eboni S. Nelson, Parents Involved & Meredith; A Prediction Regarding the (Un)Constitutionality of Race-Conscious Student Assignment Plans, 84 DEN. U. L. REV. 293, 297 (2006).
155. But see THERNSTROM & THERNSTROM, supra note 8, at 6 (directly contesting this claim by stating "[s]chools are not becoming 'resegregated'; they cannot, in any case, magically become racially balanced given existing residential patterns").
156. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2755 (2007) ("[B]oth school districts assert additional interests . . . to justify their race-based assignments. . . . Each school district argues that educational and broader socialization benefits flow from a racially diverse learning environment. . . .").
157. Derrick Bell, Diversity 's Distractions, 103 COLUM. L. REV. 1622, 1622 (2003 ).
158. Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
159. Id. at 325.
160. 488 U.S. 469 (1989) (plurality opinion).
161. Grutter, 539 U.S. at 326 (quoting Croson, 488 U.S. at 493).
162. Dworkin, supra note 9, at 95.
163. Grutter, 539 U.S. at 327.
164. Id. (internal quotation marks omitted).
165. NOWAK & ROTUNDA, supra note 1, at 807.
166. Grutter, 539 U.S. at 327-29.
167. Id. at 325.
168. Id. at 319.
169. Nelson Lund, The Rehnquist Court's Pragmatic Approach to Civil Rights, 99 NW. U. L. REV. 249, 275 (2004) (citing Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 269-320 (1978) (opinion of Powell, J.)).
170. Grutter, 539 U.S. at 339.
171. Compare id. at 340 ("[T]he Law School sufficiently considered workable race-neutral alternatives.), with id. at 394 (Kennedy, J., dissenting) ("The Court... is willing to be satisfied by the Law School's profession of its own good faith.").
172. Id. at 330 (majority opinion).
173. Id. at 328.
174. Id. at 329.
175. Id. at 331 (quoting Brown v. Bd. of Educ. (Brown I), 347 U.S. 483, 493 (1954)).
176. Id. at 332.
177. Id. at 387 (Kennedy, J., dissenting).
178. See, e.g., id. at 364-65 (Thomas, J., concurring in part and dissenting in part) (discussing the "evidence that racial . . . heterogeneity actually impairs learning among black students").
179. Id. at 330 (majority opinion) (internal quotation marks omitted).
180. Id. at 336-37 (accepting the conclusion that "[s]ome attention to numbers . . . does not transform a flexible admissions system into a rigid quota," particularly when race is used as a plus factor).
181. Id. at 329-30 (accepting that "outright racial balancing ... is patently unconstitutional").
182. Id. at 331 (emphasis added).
183. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 315 (1978) (opinion of Powell, J.).
184. Grutter, 539 U.S. at 383-85 (Rehnquist, C.J., dissenting) (discussing the precise correlation between the percentage of the law school's pool of applicants who are members of three minority groups (African American, Hispanic, and Native American) and the percentage of the admitted applicants who are members of these same groups).
185. See Heather K. Gerken, Justice Kennedy and the Domains of Equal Protection, 121 HARV. L. REV. 104, 104 (2007).
186. See, e.g., Grutter, 539 U.S. at 324, 334 (citing Bakke, 438 U.S. at 314-16 (opinion of Powell, J.)).
187. See Gratz v. Bollinger, 539 U.S. 244, 276, 280 (2003) (O'Connor, J., concurring) (finding impermissible a race-conscious admissions policy that lacks individualized consideration);
188. see also Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2746 (2007) (disallowing the school districts' approaches as a form of balancing).
189. NOWAK & ROTUNDA, supra note 1, at 791.
190. Id. (footnotes omitted).
191. Cristina M. Rodriguez, Against Individualized Consideration, 5 (N.Y.U. Sch. of Law Pub. Law & Legal Theory Res. Paper Series, Working Paper No. 08-18, 2008), available at http://ssrn.com/abstract=1148352.
192. Id. at 6-7.
193. Id. at 7-8.
194. Grutter v. Bollinger, 539 U.S. 306, 323-24 (2003) (endorsing Justice Powell's proposition that neither an interest in "reducing the historic deficit of traditionally disfavored minorities" in a profession, nor "remedying societal discrimination," justify race-conscious decision-making (internal quotation marks omitted)).
195. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 288 (1986) (O'Connor, J., concurring in part and dissenting in part) ("[A] governmental agency's interest in remedying 'societal' discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster under strict scrutiny.").
196. See, e.g., id.
197. Grutter, 539 U.S. at 365 (Rehnquist, C. J., dissenting).
198. To her credit, Justice Ginsburg, whose opinion Justice Breyer joined, states the obvious. See Grutter, 539 U.S. at 345 (Ginsburg, J., concurring) ("It is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals.").
199. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2753-54 ("Like the University of Michigan undergraduate plan struck down in Gratz, the plans here 'do not provide for a meaningful individualized review of applicants' but instead rely on racial classifications in a 'nonindividualized, mechanical' way." (internal citation omitted)).
200. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 314-15 (opinion of Powell, J.) (articulating that diversity as a justification cannot sustain a selection system in which members of particular ethnic groups are guaranteed places solely on the basis of race).
201. See also Parents Involved, 127 S. Ct. at 2753-54 ("[U]nder each [school district] plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor.");
202. Gratz v. Bollinger, 539 U.S. 244, 270-72 (2003) ("[T]he University's policy, which automatically distributes 20 points ... to every single 'underrepresented minority' application solely because of race, is not narrowly tailored ....").
203. See, e.g., Parents Involved, 127 S. Ct. at 2753 (describing the difference between the school's plans in Parents Involved and in Grutter, where the admissions program "focused on each applicant as an individual, and not simply as a member of a particular racial group," and the "classification of applicants by race . . . was only as part of a 'highly individualized, holistic review'" (quoting Grutter, 539 U.S. at 337)).
204. See, e.g., Parents Involved, 127 S. Ct. at 2799 (Stevens, J., dissenting) (citing the Court's 1968 approval of a Massachusetts statute mandating racial integration in that state's school system).
205. See Dworkin, supra note 9, at 92 ("No one doubts that avoiding academic ghettos is a desirable goal.... How can the Constitution be read to deny [states] that opportunity?").
206. See, e.g., Gratz, 539 U.S. at 298 (Ginsburg, J., dissenting) (describing America's "overtly discriminatory past, and the effects of centuries of law-sanctioned inequality [that] remain painfully evident in our communities and schools").
207. Parents Involved, 127 S. Ct. at 2823 (Breyer, J., dissenting).
208. See Grutter, 539 U.S. at 345-6 (Ginsburg, J., concurring).
209. See generally Lawrence, supra note 135 (arguing, in part, that prejudices exist independent of overt racist motives, and that "traditional notions of intent" are inadequate for addressing societal discrimination).
210. See Grutter, 538 U.S. at 314-16 (2003).
211. Id. at 327 (quoting Gomillion v. Lightfoot, 364 U.S. 339, 343-44 (1960)).
212. See id. at 320.
213. See id. at 359 (Thomas, J., concurring in part and dissenting in part) ("In 2002, graduates of the [University of Michigan] Law School made up less than 6% of applicants to the Michigan bar, even though the Law School's graduates constitute nearly 30% of all law students graduating in Michigan." (citation omitted)).
214. MACINTYRE, EDITH STEIN, supra note 54, at 42 (characterizing Husserl's consideration of language and meaning).
215. Grutter, 539 U.S. at 320.
216. Id.
217. See id.
218. See id. at 368 (Thomas, J. concurring in part and dissenting in part).
219. See id at 364.
220. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 223 (1995).
221. Grutter, 539 U.S. at 328.
222. See infra note 296 and accompanying text.
223. See Lawrence, supra note 135, at 340 (describing examples of unconscious racism in society).
224. See, e.g., Preston C. Green, III, Can Title VI Prevent Law Schools From Adopting Admissions Practices That Discriminate Against African-Americans?, 24 S.U. L. REV. 237, 254-55 (1997) (analyzing the application of disparate impact theory as applied to law school admissions).
225. Grutter, 539 U.S. at 369-70 (Thomas, J., concurring in part and dissenting in part).
226. Edward L. Rubin, Public Choice, Phenomenology, and the Meaning of the Modern State: Keep the Bathwater, but Throw Out That Baby, 87 CORNELL L. REV. 309, 310 (2002).
227. Lawrence, supra note 135, at 387.
228. Id. (citing Derrick Bell, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518, 523-24 (1980)).
229. Grutter v. Bollinger, 188 F.3d 394, 401 (6th Cir. 1999).
230. 6th Circuit Court Says Black and Latino Students Can Join Michigan Affirmative Action Cases, BLACK ISSUES HIGHER EDUC., Aug. 19, 1999, at 108 (quoting "Elizabeth Barry, University of Michigan associate vice-president and vice general counsel, [who] praised the [Sixth Circuit Court of Appeals] ruling.").
231. Peter Schmidt, Minority Students Win Right to Intervene in Lawsuit Attacking Affirmative Action, CHRON. HIGHER EDUC. (Wash., D.C.), Sept. 3, 1999, at A68.
232. Kimberly Chow, Michigan Votes to Stop Affirmative Action in State Universities on Tuesday, YALE DAILY NEWS, Nov. 9, 2006, available at http://www.yaledailynews.com/articles/printarticle/ 18868 ("Michigan voters passed a state referendum banning the use of affirmative action ....").
233. Grutter v. Bollinger, 539 U.S. 306, 367 (2003) (Thomas, J. concurring in part and dissenting in part).
234. From 1989 to 1993, I led a summer program at the University of Detroit Mercy School of Law, which allowed talented individuals from disadvantaged backgrounds to enroll in the law school after passing a pre-admissions course.
235. Grutter, 539 U.S. at 367-68 (Thomas, J., concurring in part and dissenting in part).
236. See id. See also Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2778 (2007) (Thomas, J., concurring) (observing that the Supreme Court does not typically defer to state entities in assessing whether a given practice complies with its compelling interest test).
237. Grutter, 539 U.S. at 369 (Thomas, J., concurring in part and dissenting in part).
238. Id. at 368-69 (discussing some alternatives to the school's current admissions policy of "selective admissions").
239. See Lawrence, supra note 135, at 387.
240. See, e.g., 5 OXFORD ENGLISH DICTIONARY 508 (2d ed. 1989).
241. See Special Report: America's Best Graduate Schools: Schools of Law, U.S. NEWS & WORLD REP., Apr. 7-14, 2008, at 66 (showing that schools with the lower 2007 acceptance rates are the higher ranked law schools).
242. See, e.g., Richard H. Sander, The Racial Paradox of the Corporate Law Firm, 84 N.C. L. REV. 1755, 1771-75 & tbls. 3-5 (2006) (showing significant minority attrition "at every stage of the educational process"). According to Professor Sander, "Hispanics drop out of high school far more frequently than do whites, blacks, or Asiansf, and i]n law school and on the bar,... they have very high attrition rates." Id. at 1773. In terms of black students, "the largest sources of... attrition come from college entrants not graduating and law school matriculates not entering the bar." Id. at 1774. Blacks make up to eight percent of entering law students, but make up only between five to six percent of new lawyers. Id.
243. See, e.g., Ilya Somin, "Active Liberty " and Judicial Power: What Should Courts Do to Promote Democracy?, 100 NW. U. L. REV. 1827, 1840 (2006) (book review) ("[Fifty percent] of African-American law students from a 1991 Law School Admissions Council sample either fail to graduate within five years of admission (41%) or graduate but do not take the bar (9%). The comparable rate for white students is 24% with 17% failing to graduate and 7% failing to take the bar." (citing Ian Ayres & Richard Brooks, Does Affirmative Action Reduce the Number of Black Lawyers?, 57 STAN. L. REV. 1807, 1844 (2005) (footnote omitted))). According to Professor Somin, Ayres and Brooks conclude that some racial disparities emerge, because "law schools, seeking to maximize diversity, admit 'high risk' black students without informing them of the high probability that they might fail to complete their studies." Id.
244. Sander, supra note 220, at 1820.
245. See infra Part III.C.
246. See Peter Schmidt, From 'Minority' to 'Diversity,' CHRON. HIGHER EDUC (Wash., D.C.), Feb.3, 2006, at A24.
247. Id.
248. Id.
249. Deborah Jones Merritt, Brown's Legacy: The Promises and Pitfalls of Judicial Relief, 56 NEGRO EDUC. REV. 51, 53 (2005).
250. See Steven D. Smith, Conciliating Hatred, 144 FIRST THINGS 17, 18 (2004) (quoting ROBERT F. NAGEL, JUDICIAL POWER AND AMERICAN CHARACTER: CENSORING OURSELVES IN AN ANXIOUS AGE 61-62 (1994)).
251. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 243 n.1 (1995) (Stevens, J., dissenting).
252. Richard Delgado, Enormous Anomaly? Left-Right Parallels in Recent Writing About Race, 91 COLUM. L. REV. 1547, 1559 (1991) (book review).
253. Id.; see also Hutchison, Liberal Hegemony?, supra note 67, at 611-12 (giving additional context to Justice Stevens' Adarand dissent).
254. Delgado, supra note 230, at 1559.
255. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 684-85 (2002) (Stevens, J., dissenting) (dismissing as irrelevant the educational crisis confronting African Americans in the Cleveland School District).
256. See id. at 663-76 (O'Connor, J., concurring).
257. James Forman, Jr., The Secret History of School Choice: How Progressives Got There First, 93 GEO. L.J. 1287, 1288-89 (2005) ("[T]oo often missing from the historical account is the left's substantial-indeed, I would say leading-contribution to the development of school choice.... [T]hat choice has deep roots in liberal educational reform movements, the civil rights movement, and black nationalism.").
258. See Zelman, 536 U.S. at 663 (O'Connor, J., concurring) ("I think it is worth elaborating on the Court's conclusion that this inquiry should consider all reasonable educational alternatives to religious schools that are available to parents. To do otherwise is to ignore how the educational system in Cleveland actually functions.").
259. See Grutter v. Bollinger, 539 U.S. 306, 328, 337-39 (2003).
260. Lawrence, supra note 135, at 324.
261. Id. (footnote omitted).
262. Id.
263. Richard Delgado, Affirmative Action as a Majorilarian Device: Do You Really Want to Be a Role Model?, 89 MICH. L. REV. 1222, 1224 (1991).
264. Id. at 1224-25.
265. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2752 (2007).
266. Id. at 2753.
267. Estreicher, supra note 14, at 240 (quoting Parents Involved, 127 S. Ct. at 2753-54).
268. Parents Involved, 127 S. Ct. at 2754 (quoting Gratz v. Bollinger, 539 U.S 244, 276, 280 (2003) (O'Connor, J., concurring)).
269. See id. at 2797 (Kennedy, J., concurring in part and concurring in the judgment).
270. Estreicher, supra note 14, at 241.
271. See Dworkin, supra note 9, at 95.
272. See id. at 92, 94-95.
273. Id. at 95.
274. See supra Part III.B. 1-3.
275. Dworkin, supra note 9, at 92.
276. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2776-77 (2007) (Thomas, J., concurring) (describing the mixed evidence on this question); infra Part III.C.
277. See, e.g., Hutchison, Liberal Hegemony?, supra note 67, at 611 (discussing the views of dissenting Justices Stevens, Souter, and Breyer in Zelman).
278. See id. at 612, 613-14, 617, 618-19 (specifically noting the Zelman dissenters' deployment of an "inflexible interpretation of the Establishment Clause").
279. ANATOLE FRANCE, THE RED LILY, in THE SIX GREATEST NOVELS OF ANATOLE FRANCE 837 (Winifred Stephens trans., 1918).
280. Hutchison, Liberal Hegemony?, supra note 67, at 629.
281. Dworkin, supra note 9, at 95.
282. Id. at 94.
283. See Grutter v. Bollinger, 539 U.S. 306, 387-88 (2003) (Kennedy, J., dissenting).
284. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2791 (2007) (Kennedy, J., concurring in part and concurring in the judgment) (cited in Estriecher, supra note 14, at 242).
285. Dworkin, supra note 9, at 95-96.
286. Parents Involved, 127 S. Ct. at 2757.
287. See Larry Alexander & Maimon Schwarzschild, Grutter or Otherwise: Racial Preferences and Higher Education, 21 CONST. COMMENT. 3, 3 (2004).
288. See Grutter, 539 U.S. at 343-44;
289. Gratz v. Bollinger, 539 U.S. 244, 276-77 (2003) (O'Connor, J., concurring).
290. The obviousness of the university's undergraduate admissions policy is verifiable. Beginning in 1998, the policy automatically distributed twenty points to every applicant who was a member of historically underrepresented racial and ethnic groups including African Americans, Hispanics, and Native Americans. Gratz, 539 U.S. at 254-56. Beginning in 1999, Michigan's admissions policy added an additional layer of review for some applications, but it is clear that the school admitted virtually every qualified applicant from underrepresented groups.
291. See id. at 256-57.
292. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2768 (2007).
293. Estreicher, supra note 14, at 243.
294. Id.
295. Nelson, supra note 136, at 325-26 (quoting Missouri v. Jenkins, 515 U.S. 70, 121 (1995) (Thomas, J., concurring)).
296. Estreicher, supra note 14, at 249.
297. Parents Involved, 127 S. Ct. at 2746.
298. Estreicher, supra note 14, at 249
299. Dworkin, supra note 9, at 94.
300. Id. at 92.
301. Id.
302. Id.
303. See id.
304. See generally THERNSTROM & THERNSTROM, supra note 8, at 12-13 (showing that by the twelfth grade, both black and Hispanic students are almost four years behind their white and Asian counterparts).
305. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2746 (2007).
306. Id. at 2747 (describing the Seattle Public school plan).
307. Id.
308. See id.
309. Id. If racial tiebreakers were insufficient for selection purposes, non-racial tiebreakers were used during the next step in the selection process.
310. Id.
311. Id. at 2754 ("The Seattle 'Board Statement Reaffirming Diversity Rationale' speaks of the 'inherent educational value' in '[providing students the opportunity to attend schools with diverse student enrollment.'").
312. Id.
313. Id.
314. Id. at 2755.
315. See, e.g., THERNSTROM & THERNSTROM, supra note 8, at 4 ("Test scores matter. . . . They tell us precisely what we need to know if we have any hope of reforming education and closing the racial gap in academic achievement. Good tests measure the knowledge and skills that demanding jobs and college courses require.").
316. Cf. Parents Involved, 127 S. Ct. at 2755 (declining to resolve the dispute on test scores).
317. Id. at 2761 ("Not even the school districts go this far, and for good reason.").
318. See id. at 2777 n.12 (Thomas, J., concurring) ("Of course, if the Seattle school board were truly committed to the notion that diversity leads directly to educational benefits, operations [of an 'African American Academy'] with such a high 'nonwhite' enrollment would be a shocking dereliction of its duty to educate the students enrolled in that school.").
319. See id. at 2766 (majority opinion) (discussing Justice Breyer's proposed deference and describing it as "fundamentally at odds with our equal protection jurisprudence" (internal quotation marks omitted)).
320. See supra notes 69-78 and accompanying text.
321. Michigan Stung by Study's Dropout List, DETROIT NEWS, Oct. 30, 2007, at B1. The Associated Press commissioned this analysis of Education Department data and its online presentation shows each state's high school statistics. ASSOCIATED PRESS, DROPOUT FACTORIES (2007), http://hosted.ap.org/specials/ interactives/wdc/dropout/index.hrml.
322. Michigan Stung by Study's Dropout List, supra note 296. For a list of Detroit's thirty-seven high schools see greatschools: The Parent's Guide to K-12 Success, Detroit Public High Schools, http://www.greatschools.net/schools. page?city=Detroit&lc=h&state=MI&st=public& showall=true.
323. Gratz v. Bollinger, 539 U.S. 244, 298 (2003) (Ginsburg, J., dissenting).
324. Parents Involved, 127 S. Ct. at 2776 (Thomas, J., concurring) (quoting Ronald D. Henderson et al., High-Quality Schooling for African American Students, in BEYOND DESEGREGATION: THE POLITICS OF QUALITY IN AFRICAN AMERICAN SCHOOLING 162, 166 (Mwalimu J. Shujaa ed., 1996)).
325. Id. at 2776-77 n.11 (quoting Maureen T. Hallinan, Diversity Effects on Student Outcomes: Social Science Evidence, 59 OHIO ST. L.J. 733, 744 (1998)).
326. Id. at 2777.
327. Id. at 2776 (quoting Henderson et al., supra note 299, at 166).
328. NOWAK & ROTUNDA, supra note 1, at 764 (citing Derrick Bell, Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 YALE L.J. 470 (1976)).
329. THOMAS SOWELL, BLACK REDNECKS AND WHITE LIBERALS 204 (2005) [hereinafter SOWELL, BLACK REDNECKS].
330. Id.
331. Id.
332. Id.;
333. Thomas Sowell, Black Excellence-The Case of Dunbar High School, 35 PUB. INT. 3, 8 (1974).
334. See SOWELL, BLACK REDNECKS, supra note 304, at 204. Difficult circumstances can be shown by examining the occupations of the parents of the children at this school: "As of academic year 1892-93, of the known occupations of these parents, there were 51 laborers, 25 messengers, 12 janitors, and one doctor."
335. Id.
336. Serge Herzog, Diversity and Educational Benefits: Moving Beyond Self-Reported Questionnaire Data, EDUC WORKING PAPER ARCHIVE, Nov. 19, 2007, at 1, http://www.uark. edu/ua/der/EWPA/Research/Achievement/1799.pdf.
337. Id. at 1, 38-40 ("[T]he statistical evidence scarcely permits a ringing endorsement of the view that racially diverse classrooms produce distinctively greater educational gains.").
338. Hutchison, Liberal Hegemony?, supra note 67, at 629.
339. Zelman v. Simmons-Harris, 536 U.S. 639, 663 (2003) (O'Connor, J., concurring).
340. See, e.g., Hutchison, Liberal Hegemony?, supra note 67, at 629-30.
341. Id. at 640 (quoting PHILLIP E. JOHNSON, THE RIGHT QUESTIONS: TRUTH, MEANING & PUBLIC DEBATE 149 (2002)) (first alteration added).
342. Girardeau A. Spann, Pure Politics, 88 MICH. L. REV. 1971, 1974 (1990).