The Bakke case was widely regarded as a victory by supporters of affirmative action because in Bakke, the Court, speaking through Mr. Justice Powell, rejected claims that it was unconstitutional to consider race in deciding which students to admit to institutions of higher education. Bakke is still good law, and, following its reaffirmance in Grutter, attention to race in admitting students is still, for the moment, allowed. Yet both legally and strategically supporters of affirmative action should find more to deplore about Bakke than to praise. Bakke could have held, as four Justices would have had it hold, that affirmative action was permissible because limited efforts to consider race in efforts to redress the heritage of racism and pernicious ethnic disadvantage did not trigger strict scrutiny under the 14th Amendment. Instead it held that remedial and other social justice arguments for affirmative action were unpersuasive, and that affirmative action was saved from unconstitutionality only because the educational interest in diversity outweighed the presumptive invalidity of racial classification and the allocation of rewards, in part, on that basis. Justice O’Conner in Grutter reaffirmed Bakke’s reading of the why affirmative action was permissible, though her use of examples from business and the military could be read as implying that the value of diversity to society might also be a compelling state interest. She did not, however, explicitly say the latter.
Although the world of higher education quickly adapted to Bakke, reducing to one note its justification for affirmative action, and has adjusted to Grutter’s holding, which in conjunction with its companion case, Gratz, means that only certain ways of seeking racial diversity are permissible. Bakke and Grutter have, however, not been without their cost. In particular, they have led to an impoverished narrative in justification of affirmative action, which I believe is echoed in the research done on the topic. Thus studies, taking advantage of the natural experiment that resulted from some states being forced by state law or court decision to abandon affirmative action have looked at how the racial diversity on campuses in these states was affected. Statistical work, like Linda Wightman’s, has tried to assess what racial access to differing institutions of higher education would be like if affirmative action were abolished entirely. Other studies have sought to assess how racial diversity on campuses and in the classroom affects student attitudes or learning. Anecdotal evidence is also common. Observations, like reports that black students and white students eat at separate tables or instances of white and black cooperation, have been offered as if in some important way they support or undercut the diversity justification for affirmative action. Finally there are studies like those that Richard Sanders or I and my coauthors have done, which pay scant attention to rationales for affirmative action but instead look at its effects on those who are its intended beneficiaries, and there are anecdotal works that seek to make the same point by telling stories of those who have been helped or harmed by affirmative action.
The educational value of campus and classroom diversity is one reason to allow affirmative action. Indeed, I think it fair to say that Bakke sensitized a generation of law school (and other) professors, admissions officers and even students to educational values promoted by affirmative action. I know I was so sensitized. While some might cynically argue that the realization of this value and testimony to it occurred (and occurs) only because it is the only legally permissible way to justify affirmative, I think this is wrong. Being forced to think of the benefits of affirmative action in diversity terms can open eyes to genuine benefits that are there. Problems addressed in law school classes are different and are addressed differently because of the diverse faces professors see in the classes before them. Schools like mine have specialized journals on aspects of race and law, which would most likely not exist but for the interest and efforts of students of color, many of whom were admitted to law school through affirmative action. Yet it is not just students of color who participate on these journals or write for them, so students, and faculty, of all races benefit. Approaches to legal scholarship, like critical race theory, have, I expect, been more vibrant than they would have been in a world without affirmative action. Hence, I do not think law schools or other educational institutions are being hypocritical when they use the educational implications of diversity to justify affirmative action.
Had you asked me before Bakke, however, if the educational benefits of diversity were the strongest justification for affirmative action, I would have said “no.” I doubt if it would have been in the top few justifications on my list. The same is true today. I don’t see the justification for affirmative action as lying largely in the ways that the presence of blacks and other minorities might enhance the educational experience of their white classmates or in ways it has broadened the perspective of scholars in the still largely white academy. For me the most important justifications for affirmative action are rooted in notions of racial justice, the value of an educated minority middle class, adequately serving minority group members who are less well off, and the like. Justice O’Conner in my view is right when she deplores the fix the army might be in if the officer corps that commanded a racially mixed fighting force was almost all white and when she cites business leaders who assert that they must have minorities on their management teams to be competitive in the modern global economy. I also think that the continued presence of discrimination against minorities which has been documented in study after study, some using rigorous field experimental methods, and which now appears to be perhaps ingrained in many people, justifies some discrimination in favor of minorities at crucial educational gateway points. If these reasons were not enough to justify affirmative action, research that Terry Adams, David Chambers and I did as well as some studies of medical school graduates indicates that members of minority groups are more likely than whites to serve their fellow minority group members; so it appears that affirmative action makes professional services more widely accessible than they otherwise would be.
These and similar topics have not gone completely unstudied. Indeed there is a wealth of research on the social circumstances of different minorities, causes of these differences and the degree and social location of continuing discrimination. Yet this research is seldom related directly to affirmative action or used to justify it. It is as if scholars feared that efforts to argue justify affirmative action on these grounds would backfire because the Supreme Court has not only not justified affirmative action on social justice and social welfare grounds but has intimated, and in some cases said, that fairness and social welfare justifications are impermissible reasons for race-based decision making. Hence it would not be surprising if administrators of affirmative action programs and their intellectual supporters have shied away from such arguments for fear that if they did, court’s might treat the educational diversity argument as a sham justification for an effort aimed at social engineering, and declare affirmative action programs defended partly on social justice and welfare grounds illegal.
I think this fear is not altogether groundless. A school would be foolish if it were, for example, to write a preamble to its affirmative action policy that began, “We engage in affirmative action to promote educational diversity but believe its far more important justifications lie in its tendency to promote racial justice, compensate for past discrimination, turn out graduates who serve minority communities, etc…” Perhaps one sees no such preambles because university attorneys advise against such candor, but I think it is more likely that many advocates of educational affirmative action have long since ceased to think of social justice reasons as primary justifications for affirmative action and are genuine in their celebration of diversity as an educational desiderata if not necessity.
Whether diversity is a candid justification for affirmative action admissions or not, I see costs in this focus. I believe that Court decisions ruling social welfare and social justice out as constitutional justifications for affirmative action, have discouraged research into these reasons for and possible implications of affirmative action. This is almost inevitable because one group of potential sponsors of such research, those who seek an empirical basis to defend affirmative action from constitutional attack, have no obvious interest in promoting such study. But I think this perspective has proved short sighted. By focusing on the sector from which the attack on affirmative action first and most threateningly came – the courts – the nation’s colleges, universities and professoriate ignored the direction from which the most successful attacks to date have come, the electorate. Diversity for education’s sake is a value that only an educator – or a Justice enamored with the “Harvard model” - could love. What good does diversity do a white voter if his child cannot get into a top school where he will benefit from it? More to the point, even if diversity is recognized as improving the educational experience for everyone, does it improve it to the extent needed to justify choice on the basis of race? Color blindness in college or law school admissions appeals to core American values, as well it should. Remediation for still strong effects of past discrimination, service to ignored segments of society, advantages to balance the disadvantages minorities face because society today is not color blind, etc., are likely to weigh more heavily than the value of educational diversity when voters are asked whether affirmative action should be part of the society they want to live in.
Arguments built on these themes might also come to weigh more heavily on the courts. The amicus briefs from business and the military in Grutter seemed to have matter greatly to Justice O’Conner and some of the Justices who concurred, although their arguments went beyond the reasons cognizable under Bakke. Following Justice O’Conner’s retirement it is not unreasonable to think that affirmative action is again in constitutional trouble. The current composition of the Supreme Court may mean that Grutter will not ensure that affirmative action will remain constitutional for the 25 years Justice O’ Connor sought to guarantee. Three or four years – the time it takes for another case to be decided by the Court – may be a better estimate of Grutter’s lifetime. Affirmative action might even be found to violate the Civil Rights Act, in which case private schools as well as public ones would be bound. A new and stronger case, based on all the values that can justify affirmative action must be made. Lawyers should not work bear the heaviest burden in making the empirical case, for researchers in the various social sciences will often be more skilled in addressing the issues. But lawyers who believe in affirmative action should be part of the research effort, including the empirical effort, for they know best how to draw on empirical work in making a legal case.
In the short run, if the current Supreme Court is bent on reversing Bakke, no empirical findings are likely to matter. But opponents of affirmative action did not take “Yes” for an answer when the Supreme Court said that affirmative action in higher education was okay. Supporters of affirmation should similarly not take “No” for an answer if the Supreme Court reverses itself, nor should they think that voters who rejected affirmative action in referenda would not reverse themselves again if a strong pro-affirmative action case could be made. Hence, lawyers along with social scientists should build the empirical case – if it is there – which would make the value and justice of affirmative action visible to both courts and voters. If the case cannot be made, if minorities are not victimized today by discrimination, if wealth differences between the races traceable to past discrimination has been eliminated, if white attorneys are as available to black clients as black attorneys, if Justice O’Connor’s hoped for millennium has arrived, we should also all know.
This is my last blog on studying affirmative action. I thank the Editors of the ELS web site for inviting my participation and thank you for reading. If anyone has reactions to anything I have written I would be interested in knowing them. I invite you to comment below where all can read or write to me personally at [email protected] .