Why limit the diversity to racial diversity? If the interest in the educational benefits that stem from racial diversity is indeed compelling, presumably there are other forms of diversity that would produce similarly significant, and similarly valuable, educational benefits. (The alleged compelling interest is not racial diversity qua racial diversity, but rather the educational benefits that stem from that diversity). Let’s grant, for a moment, that the end to which the policy is tailored is the procurement of the educational benefits that stem from classroom diversity. 3 Before turning to whether or not this interest actually is compelling, we should point out that there is serious reason to doubt that this interest is truly the one that animates affirmative action policies like Harvard’s. 2 In fact, of the interests historically offered as justifications for affirmative action admissions practices, the Court has held that this is the only one that can be compelling. The compelling interest claimed by the law school in Grutter was the procurement of the educational benefits that stem from having adequately diverse classrooms (what Justice Thomas calls “classroom aesthetics”). In fact, we don’t think an affirmative action regime like Harvard’s can ever satisfy strict scrutiny for reasons we’ll present below. Harvard argues that its policy meets this standard. If a policy discriminates on the basis of race only to the degree necessary to meet a compelling interest, it stands the test of strict scrutiny. necessary) state interest, and 2) is “narrowly tailored” such that the policy minimizes, to the extent possible, differential treatment on the basis of race. 1 For the unfamiliar: A race-conscious policy satisfies strict scrutiny if it 1) furthers a compelling (i.e. And when government policy (or the policy of institutions that receive government funding, like Harvard) makes racial classifications, reviewing courts must apply the test of strict scrutiny to determine whether or not those policies meet constitutional muster. Policy is one thing, constitutionality another. Whatever you make of the merits of Harvard’s affirmative action program, there are constitutional questions that lurk beneath the operation of any state-sponsored policy which prescribes differential treatment on the basis of race. Grutter’s loose reasoning leads us to think that the Court should overrule, so we’ll canvass just one reason for believing so here. Bollinger, the narrow 2003 decision which held that the University of Michigan Law School’s race-conscious admissions program was constitutional because it satisfied strict scrutiny. Students for Fair Admissions petitions the Court to consider overruling Grutter v.
After losses in the Federal District Court and the First Circuit Court of Appeals, the non-profit group seeking to do away with Harvard’s race-obsessed admissions regime has filed a Petition for Writ of Certiorari in our Nation’s highest tribunal. Harvard’s affirmative action saga continues, or so we hope.
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