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Anderson, Andrew --- "Grutter v Bollinger: Negotiating Conflicting Rights with a Fiction of Words" [2003] JCULawRw 7; (2003) 10 James Cook University Law Review 129


GRUTTER V BOLLINGER: NEGOTIATING CONFLICTING RIGHTS WITH A FICTION OF WORDS

ANDREW ANDERSON*

* Law Student, James Cook University. I would like to thank Associate Professor H A Amankwah for the encouragement and inspiration to write this note.

INTRODUCTION

The oppression and suppression of minority groups by dominant groups is a historical universal phenomenon. Although the present age subscribes to notions of diversity and equality[1] , the adverse effects of past injustices are nonetheless visible everywhere.

‘Affirmative action’ programs have consequently been initiated to ‘equalise’ the disparity of rights, privileges and opportunities between the majority and minorities.[2] In the United States, opposition to this equalisation has come from those who believe that their right to equal treatment under the Fourteenth Amendment[3] has thereby been undermined. Affirmative action may, therefore, be articulated as an unjust remedy to unjust circumstances.[4]

Courts in the United States have thus had to inquire into what constitutes inequality, and whether there are any valid reasons for infringing the right to equality. Grutter v Bollinger[5] , decided by the United States Supreme Court, involves affirmative action in university education and demonstrates the complexity of this process. Education as an institute+ion is an important microcosm of society as it embodies the values and aspirations of a people. It often serves as the catalyst for change, and as a consequence involves occasional controversy.

Grutter deals with the conflicts that inevitably result when words that embrace broad concepts, such as ‘freedom’ and ‘equality’, are employed to both validate and invalidate their expression. This decision is significant not only because of its determination on affirmative action in education but also for the reason that it necessarily involves consideration of its content.

I FACTS AND ISSUES

The question before the Court in Grutter was whether the University of Michigan Law School (Law School) policy of considering race and ethnicity when assessing applicants discriminated against the petitioner, Barbara Grutter. The petitioner, after being placed on a waiting list and later rejected by the Law School, claimed that the ‘predominant’ use of race in the admissions process served ‘no compelling interest’ and discriminated against ‘disfavoured racial groups’, of which she was a member.[6]

The Law School argued that its admission policy accorded with the judgment in Regents of the University of California v Bakke[7] , an earlier case that also involved a challenge to racial considerations in the tertiary education admissions process.[8] The Law School advanced that, as Powell J had stated in that case, a diverse body of students was a compelling state interest.[9]

The Law School sought to prove, in order to satisfy the requirements of Powell J’s judgment, that the policy was ‘narrowly-tailored’. It did so explaining that being a member of a traditionally disadvantaged racial or ethnic minority group was merely a ‘plus’ factor.[10] Also, it was argued that enrolling a ‘critical mass’ of underrepresented minority students was necessary ‘so as to realise the educational benefits of a diverse student body’.[11]

The issues were, therefore, whether the consideration of race and ethnicity of applicants in the admissions process is constitutionally permissible, and if so, whether the Law School’s policy was ‘narrowly tailored’ so as to conform with the scope of validity.

II DECISION

At first instance the District Court found that diversity was not a compelling state interest. On the evidence, it was also concluded that the Law School’s admissions policy was not tailored narrowly enough for the purpose of achieving diversity.

Leave to appeal was granted by the Sixth Circuit Court of Appeals. In a 5:4 decision the judgment of the District Court was reversed. Martin CJ, delivering the opinion of the majority, held that diversity was a compelling state interest. The judgment of Powell J in Bakke was found to be binding precedent on this point. It was further held that the narrow consideration given to race and ethnicity by the Law School did not offend this interest.

The decision was appealed to the United States Supreme Court. The judgment of the Sixth Circuit Court of Appeals was upheld in another 5:4 decision. O’Connor J, with whom Stevens, Souter, Ginsburg, and Breyer JJ joined, gave the opinion of the majority. Rehnquist CJ was joined by Scalia, Kennedy, and Thomas JJ in a dissenting opinion. Ginsburg, Kennedy, Scalia, and Thomas JJ also filed separate opinions.

A Judgment of O’Connor J

The argument of the Law School rested upon acceptance by the Court that the consideration of race was constitutional in the circumstances. The policy, according to the Law School, sought to ‘achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts’.[12]

O’Connor J, while considering Bakke, stated that the judgment of Powell J

‘has served as the touchstone for constitutional analysis of race-conscious admissions policies.’[13] In accordance with that decision Her Honour affirmed ‘that student body diversity is a compelling state interest that can justify the use of race in university admissions.’[14] However, this endorsement was given in the light of the important qualification that ‘constitutional limitations protecting individual rights may not be disregarded’.[15]

The process for protecting the constitutional rights of individuals was explained by O’Connor J:

We have held that all racial classifications imposed by government must be analyzed by a reviewing court under strict scrutiny. This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.[16]

Her Honour understood the purpose of strict scrutiny was ‘to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context’.[17]

Strict scrutiny is to be contrasted with the fact that ‘Justice Powell grounded his analysis in the academic freedom that long has been viewed as a special concern of the First Amendment.’[18] These two judicial principles are not easily reconciled, as evidenced by the differing approaches adopted in the majority and minority judgments.

O’Connor J took a broad view of the level of freedom to be given to the academic judgments of educational institutions. Her Honour held that ‘[t]he Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.’[19]

The Law School, in assembling a diverse body of students, sought to ‘enroll a critical mass of minority students’.[20] O’Connor J found ‘the Law School’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.’[21] Educational benefits materialise because the ‘policy promotes cross-racial understanding, helps to break down racial stereotypes, and enables [students] to better understand persons of different races’.[22]

O’Connor J was persuaded by the strong amici curiae[23] in support of the Law School policy. Her Honour concluded:

The Law School has determined, based on its experience and expertise, that a “critical mass” of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.[24]

This deference to the Law School left only one issue to be resolved — the extent of the consideration and influence of race in the admissions process and whether the process could be properly considered narrowly tailored.

The judgment of Powell J in Bakke was again the ‘touchstone’. O’Connor J referred to His Honour’s statement that to be narrowly tailored the process for admission is required to be ‘flexible enough to consider all pertinent elements of diversity in light of particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight’.[25]

Her Honour concluded that the Law School assessed each applicant in a way that allowed for individual comparisons and that race was regarded as a mere ‘plus’ in that process.[26] O’Connor J explained that this ‘plus’ must not inhibit the program of ‘individualized consideration’.[27] Her Honour accepted that, like the Harvard plan approved in Bakke by Powell J, the Law School policy was flexible and gave due consideration to the individual applicant.[28]

The Law School’s aim of achieving a ‘critical mass’ was distinguished from a quota system. Her Honour said a quota system ‘is a program in which a certain fixed number or proportion of opportunities are reserved exclusively for certain minority groups’.[29] Though the Law School noted the acceptance level of minority applicants, this ‘does not transform a flexible admissions system into a rigid quota’.[30]

O’Connor J also considered the statement by Powell J in Bakke, that race should be ‘only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body,’[31] and concluded:

The Law School does not, however, limit in any way the broad range of qualities and experiences that may be considered valuable contributions to student body diversity.[32]

It was for this reason, inter alia, that the admissions program was held not to ‘unduly burden individuals who are not members of the favoured racial and ethnic groups’[33] , which otherwise would have prevented the process from being ‘narrowly tailored’.

O’Connor stated ‘race-conscious admissions policies must be limited in time.’[34] Her Honour held, ‘[w]e see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point.’[35] This requirement ‘assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.’[36] The Law School was taken ‘at its word’[37] that it would discontinue race-conscious admissions policies ‘as soon as practicable’.[38]

B Opinion of Ginsburg J

Ginsburg J concurred with the majority opinion but added some further comments on affirmative action and the continuing relevance of race in education. Her Honour expanded upon ‘[t]he Court’s observation that race-conscious programs must have a logical end point’.[39]

Her Honour introduced the International Convention on the Elimination of All Forms of Racial Discrimination, which has been ratified by the United States, as a guide to what this logical end point may be.[40] It demands that action ‘shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.’[41]

After a short discussion of the situation minorities face in education, Ginsburg J concluded that ‘it remains the current reality that many minority students encounter markedly inadequate and unequal educational opportunities.’[42]

C Opinion of Rehnquist CJ

The dissenting judgment of Rehnquist CJ expressed clear disapproval of the opinion of the Court. His Honour concluded that the application of ‘strict scrutiny’ by the majority was misguided:

The Court, in an unprecedented display of deference under our strict scrutiny analysis, upholds the Law School’s program despite its obvious flaws. We have said that when it comes to the use of race, the connection between the ends and the means used to attain them must be precise.43 Rehnquist CJ regarded the deference shown to the Law School because of its nature as an educational institution as contrary to previously decided cases which applied strict scrutiny ‘regardless of the setting in which race was being used’.[44] His Honour, quoting from previous cases, stated that the race-conscious admissions policy of the Law School ‘must necessarily receive a most searching examination’.[45]

The Law School’s aim of achieving a ‘critical mass’ of minority students was the focus of the Chief Justice’s judgment. His Honour asserted that when ‘[s]tripped of its “critical mass” veil, the Law School’s program is revealed as a naked effort to achieve racial balancing.’[46]

Rehnquist CJ sought a reason for the disparity in numbers of underrepresented minority groups admitted to the Law School:

[O]ne would have to believe that the objectives of “critical mass” offered by respondents are achieved with only half the number of Hispanics and one- sixth the number of Native Americans as compared to African-Americans. But respondents offer no race-specific reasons for such disparities. Instead, they simply emphasize the importance of achieving “critical mass,” without any explanation of why that concept is applied differently among the three underrepresented minority groups.[47]

His Honour stated, ‘strict scrutiny cannot permit these sort of disparities without at least some explanation.’[48] Upon further inquiry into the matter, the Chief Justice found a ‘tight correlation between the percentage of applicants and admittees of a given race’.[49] His Honour thus concluded:

[T]he Law School has managed its admissions program, not to achieve a “critical mass,” but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls “patently unconstitutional.”[50]

Rehnquist CJ found that the ‘critical mass’ policy, and the fact that the program had no ‘reasonably precise time limit’[51] , do not withstand strict scrutiny and therefore the Law School policy should have been held unconstitutional.

D Opinion of Kennedy J

Kennedy J echoed Rehnquist CJ’s disapproval of the way the majority of the Court applied ‘strict scrutiny’. His Honour advanced the argument that though the judgment of Powell J in Bakke was ‘the correct rule for resolving this case’[52] , the Court had misunderstood the concept of the deference and therefore applied it incorrectly:

Having approved the use of race as a factor in the admissions process, the majority proceeds to nullify the essential safeguard Justice Powell insisted upon as the precondition of the approval. The safeguard was rigorous judicial review, with strict scrutiny as the controlling standard.[53]

His Honour explained the difference between the deference which is consistent with strict scrutiny and that which the majority applied, which in his view is ‘antithetical’[54] . His Honour observed:

The Court confuses deference to a university’s definition of its educational objective with deference to the implementation of this goal. In the context of university admissions the objective of racial diversity can be accepted based on empirical data known to us, but deference is not to be given with respect to the methods by which it is pursued.55 Kennedy J then proceeded to examine the methods used by the Law School to determine if they survived strict scrutiny. The focus was on demonstrating ‘how critical mass becomes inconsistent with individual consideration in some more specific aspects of the admissions process’.[56] After analysing the admissions data, His Honour found it to raise an ‘inference that the Law School subverted individual determination, and strict scrutiny requires the Law School to overcome the inference”[57] , a task it apparently failed to perform.

In concluding his judgment, Kennedy J expressed the dangers inherent in the Court’s application of ‘strict scrutiny’ and how it fails to honour the safeguard of Powell J.

E Opinion of Scalia J

On the issue of the ‘educational benefit’ diversity was argued to produce by the Law School, Scalia J was particularly critical. His Honour regarded ‘cross racial understanding’ [58] as ‘a lesson of life rather than law’[59] , finding it difficult to recognise an ‘educational benefit’ in something which is unexaminable and unteachable in the usual sense.[60]

Scalia J also speculated at length on lawsuits that will eventuate as a result of the Court’s holding. In His Honour’s view the decision of the majority, because of its ambiguity, had the effect not of answering questions, but of raising them.

F Opinion of Thomas J

Thomas J delivered a powerful dissent that sought to expose the lack of reasoning by the majority. His Honour was, however, in agreement on two points:

First, I agree with the Court insofar as its decision, which approves of only one racial classification, confirms that further use of race in admissions remains unlawful. Second, I agree with the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years.[61]

His Honour was careful in stating ‘with precision the interest being asserted by the Law School’.[62] Thomas J noted that the Law School intends ‘diversity’ and ‘educational benefits’ to be the compelling state interest.[63] He also suggested that, by the conduct of the Law School, the maintenance of its elite status is also intended to be compelling.[64]

Thomas J proceeded to argue that the ‘diversity’ required by the Law School for its educational benefits was the same as racial balancing.[65] His Honour asserted that a different admissions process could achieve the same educational benefits.[66] Thomas J then stated that the decision of the Court effectively allowed racial discrimination to prevent the Law School from losing its elite status.[67]

After highlighting the supposed lack of reasoning by the majority, His Honour searched for the sources whence the use of race was justified as compelling. Thomas J found that there was no compelling state interest for the maintenance of a law school nor ‘marginal improvements in legal education’.[68] This conclusion was arrived at by applying what is deemed to be ‘the proper standard’[69] for review.

Thomas J, in a detailed discussion, gave an account of the history of the ‘idea of educational autonomy grounded in the First Amendment’.[70] After considering the relevant cases His Honour held:

The majority’s broad deference to both the Law School’s judgment that racial aesthetics leads to educational benefits and its stubborn refusal to alter the status quo in admissions methods finds no basis in the Constitution or decisions of this Court.[71]

This deference, Thomas J argued, will lead to other problems such as ‘racial segregation’.[72] His Honour found, in light of an earlier case:

[T]hat before being given license to use racial discrimination, the Law School would be required to radically reshape its admissions process, even to the point of sacrificing some elements of its character.[73]

Thomas J continued to advance the argument against the deference given to the Law School. His Honour stated that it did not address the discriminatory admissions process, and that ‘[t]he Law School’s continued adherence to measures it knows produce racially skewed results is not entitled to deference by this Court.’[74]

After finding a lack of reasoning in the Law School’s argument, Thomas J concluded the judgment elaborating on the problems of racial discrimination — whether intended for good or otherwise.

III IMPACT OF DECISION

A Conceptual Implications for Affirmative Action

This case questions the constitutionality of affirmative action in higher education. The ‘diversity’ argument, used currently as the justification for considerations of race and ethnicity, allows for a compromise on affirmative action because it is seen to benefit all participating parties.[75]

The asserted benefits of ‘diversity’ in education were acknowledged by the Court.[76] Support can also be drawn from the prevailing dogma of the United Nations.[77] There is difficulty, however, in reconciling ‘affirmative action’ with ‘diversity’ since the former necessarily involves an admission of a problem, whereas the latter permits ignorance of such issues.[78] The rejection of all other uses of race in university admissions renders this a salient concern. [79] Thus, the way in which the Court frames ‘diversity’ has important ramifications for the concept of affirmative action in higher education.

The judgment of the Court is based solely on the ‘educational benefits that flow from a diverse student body’.[80] This construction allows for what has been described as a ‘more politically palatable’[81] form of racial discrimination.

Affirmative action programs ordinarily have been initiated to aid minority groups that are disadvantaged, often as a result of past discrimination. Such programmes represent an admission by society that there is a problem, and a belief that real, and not indifferent, action will help to remedy the matter. The means of affirmative action may be described as ‘racial discrimination’, but the end pursued is an unmaking of the cycle of social disadvantage. This ‘equalisation’, it is presumed, benefits the wider society in turn.

The Court in the present case does not attempt to formulate the decision according to this reasoning. The focus is on the majority, and the benefits racial discrimination can have for it — socially, economically, and politically.[82]

Serious thought should be given as to whether considerations of race should be used as a tool to gain advantage, instead of arrest disadvantage. Such a radical shift in ambition surely cannot be contemplated as being of the same nature as affirmative action; it is entirely different both in character and concept.[83]

This conceptual metamorphosis projects the interests of the majority as the licence for authorising racial discrimination. The justification is not to answer the effects of past injustices that linger to impede opportunity, but the perpetuation of beneficial social, economic, and political structures for the majority.[84]

B Academic Freedom

The holding by the majority was, in essence, a strong affirmation of the independence of educational institutions. The difference between the opinion of the majority and the opinion of those in dissent was clear on this matter. Those who filed dissenting opinions sought a far more restricted form of academic freedom than the majority did.

The Court accepted the ‘special niche’ of the Constitution in which universities are said to dwell.[85] The minority rejected the way in which this ‘special niche’ was used to shield what they considered to be an unconstitutional program of discrimination.[86] Consequently, the freedoms associated with academic institutions were scrutinised in this case because of the interference with the constitutionally protected right of racial and ethnic equality.

Scalia and Thomas JJ, of all the members of the Court, were the most willing to venture into the academic realm. Scalia J noted what should and should not be a concern to the scholastic establishment.[87] Thomas J delivered a judgment clearly in favour of forcing a change to the admissions procedure of the Law School.[88]

His Honour resented how the admissions process of the Law School was crafted to further its decided interests, which he saw as elitist.[89] He suggested ‘accepting all students who meet minimum qualifications’.[90] However, whatever these ‘minimum qualifications’ may be, they will still involve the subjective aims and processes of the Law School, which ultimately favour certain individuals and groups.[91]

Academic freedom is important, therefore, because without it educational institutions lose the ability to implement their own mission, whatever that may be, within the confines of the Constitution. The holding of the majority reflected this understanding, and ensures that diversity will continue not only within the University of Michigan Law School, but also in the education system at large.

CONCLUSION

Grutter has given the United States Supreme Court the first opportunity since Bakke to consider the use of race-conscious admissions in university education. The upholding of the Law School’s policy entails constitutional developments for both equality and higher education.

Academic freedom has been affirmed, and in a broad construct. This effectively is confirmation of the significance of the institution of higher education and the special role it holds in society.

The Court confirms its consideration of social, economic, and political benefits as the cause of allowing discrimination. The approach of ‘diversity’, unlike affirmative action, does not have any regard to the structures that may be perpetuating social disadvantage.[92] It may be argued, however, that affirmative action survives surreptitiously under ‘diversity’.[93] So, if affirmative action exists in university admissions it is not as a command of justice but by a fiction of words.


[1] Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities Adopted by General Assembly resolution 47/135 of 18 December 1992; Declaration on Race and Racial Prejudice Adopted and proclaimed by the General Conference of the UNESCO at its twentieth session, on 27 November 1978; International Convention on the Elimination of All Forms of Racial Discrimination Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965.

[2] Cheryl I Harris, ‘Whiteness as Property’ (1993) 106 Harvard Law Review 1709, 1779.

[3] US Const. amend. XIV.

[4] See Charles R Lawrence III, ‘Two Views of the River: A Critique of the Liberal Defense of Affirmative Action’ (2001) 101 Columbia Law Review 928, 950–1.

[5] [2003] USSC 4414; 539 US 1 (2003) (‘Grutter’).

[6] Ibid 4 (O’Connor J).

[7] Regents of the University of California v Bakke, [1978] USSC 145; 438 US 265 (1978) (‘Bakke’).

[8] Grutter[2003] USSC 4414; , 539 US 1, 1–2 (2003) (O’Connor J).

[9] Ibid.

[10] Ibid 22.

[11] Ibid 5.

[12] Ibid 3.

[13] Ibid 10.

[14] Ibid 13.

[15] Ibid 11.

[16] Ibid 14.

[17] Ibid 15.

[18] Ibid 11–12.

[19] Ibid 16.

[20] Ibid 17.

[21] Ibid.

[22] Ibid 17–18.

[23] These included submissions from the American Educational Research Association, 3M, General Motors, civilian and retired miliary leaders, the Reserve Officers Training Corps, the United States, and the Association of American Law Schools.

[24] Grutter[2003] USSC 4414; , 539 US 1, 21 (2003) (O’Connor J).

[25] Ibid 22.

[26] Ibid.

[27] Ibid.

[28] Ibid 25.

[29] Ibid 22.

[30] Ibid 24.

[31] Ibid 12.

[32] Ibid 26.

[33] Ibid 29.

[34] Ibid 30.

[35] Ibid.

[36] Ibid 30–1, citing Richmond v J A Croson Co [1989] USSC 15; 488 US 469 (1989) 87, 510.

[37] Grutter[2003] USSC 4414; , 539 US 1, 31 (2003) (O’Connor J).

[38] Ibid.

[39] Ibid 1 (Ginsburg J).

[40] Ibid.

[41] Ibid quoting from Article 2(2) of the Convention.

[42] Grutter[2003] USSC 4414; , 539 US 1, 3 (2003).

[43] Ibid 10 (Rehnquist CJ).

[44] Ibid 2.

[45] Ibid 1.

[46] Ibid.

[47] Ibid 4.

[48] Ibid 6.

[49] Ibid 8.

[50] Ibid 9.

[51] Ibid.

[52] Ibid 1 (Kennedy J).

[53] Ibid 2.

[54] Ibid 8.

[55] Ibid 2.

[56] Ibid 3.

[57] Ibid 5.

[58] Ibid 1 (Scalia J).

[59] Ibid 2.

[60] Ibid 1–2.

[61] Ibid 2 (Thomas J).

[62] Ibid 6.

[63] Ibid.

[64] Ibid.

[65] Ibid 7.

[66] Ibid 7–8.

[67] Ibid 8.

[68] Ibid 9.

[69] Ibid.

[70] Ibid 14.

[71] Ibid 16.

[72] Ibid 18.

[73] Ibid.

[74] Ibid 22.

[75] Lawrence, above n 4, 950.

[76] Grutter[2003] USSC 4414; , 539 US 1, 17–21 (2003) (O’Connor J).

[77] Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; Declaration on Race and Racial Prejudice; International Convention on the Elimination of All Forms of Racial Discrimination, above n 1.

[78] Lawrence, above n 4, 954–5.

[79] Grutter[2003] USSC 4414; , 539 US 1, 11 (2003) (O’Connor J), observing ‘diversity’ is the only compelling state interest that can justify the use of race in university admissions.

[80] Ibid 31.

[81] Eric Fomer, ‘Diversity Over Justice’ The National Magazine, 14 July, 2003.

[82] See also Grutter[2003] USSC 4414; , 539 US 1, 18 (2003) (O’Connor J):

American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.

Also, at 20–1:

[D]iminishing the force of [racial] stereotypes is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students.

[83] For a discussion on the difference between the ‘diversity’ rationale and ‘affirmative action’ see Lawrence, above n 4, 950–8.

[84] Ibid 958; see also a discussion on the way in which strict scrutiny has shifted from a ‘smoking out’ process to a ‘cost benefit’ process: Jed Rubenfeld, ‘Affirmative Action’ (1997) 107 Yale Law Journal 427.

[85] Grutter[2003] USSC 4414; , 539 US 1, 16 (2003) (O’Connor J).

[86] Ibid 2 (Rehnquist CJ); 2–3 (Kennedy J); 2, 14–16 (Thomas J).

[87] Ibid 1–2, (Scalia J).

[88] Ibid 7, 14 (Thomas J). See also 22–3.

[89] Ibid 2:

The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.

[90] Ibid 14.

[91] See William H Gray III, Michael T Nettles, Laura W Perna, Kimberley C Edelin, ‘The Case for Affirmative Action’ in Arie L Nettles and Michael T Nettles (eds), Measuring Up: Challenges Minorities Face in Educational Assessment (1999) 184–7.

[92] Lawrence, above n 4, 940–1, 950.

[93] See Jed Rubenfeld, above n 84, 471–2:

Pleading diversity of backgrounds merely invites heightened scrutiny into the true objectives behind affirmative action. This heightened scrutiny would quite properly reveal the existence of race- or group-related purpose, rather than a genuine interest in achieving a representative diversity of perspectives.



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