In Grutter v. Bollinger, the Supreme Court ruled that schools are allowed to make “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”1 This standard is called “strict scrutiny,” and strict scrutiny applies because the Equal Protection Clause of the Fourteenth Amendment prohibits treating people differently on the basis of race.2
The Grutter majority claimed to apply “strict scrutiny” to affirmative action.3 I contend that the nine supposed educational benefits of student body diversity listed in Grutter are paltry, nonexistent, or worse. Significantly, several of the presumed educational benefits are predicated on negative stereotypes about nonminorities. In some cases, the supposed benefits of diversity are thinly disguised expressions of racial favoritism, or judicial endorsements of “tribalism.”4 For instance, Grutter went so far as to officially define nonminorities as “nonfavored groups.”5 Because of long-standing liberal hegemony within the academy,6 social scientists with rare exception have not treated affirmative action with the skepticism it deserves.7 An empirically grounded challenge to affirmative action is overdue.
Compelling State Interest in the Educational Benefits of Student Body Diversity
Grutter noted that the University of Michigan Law School asserted “only one justification for their use of race in the admissions process: obtaining ‘the educational benefits that flow from a diverse student body.’”8 However, as Justice Thomas pointed out in dissent, the Supreme Court has found only two circumstances where racial discrimination is justified: countering government-backed racial prejudice and ensuring national security.9
On the core question of whether “diversity is essential” to [the university’s] educational mission,” Grutter states that “‘good faith’ on the part of a university is ‘presumed’ absent ‘a showing to the contrary.’”10 That approach is inconsistent with strict scrutiny, which requires “searching judicial inquiry into the justification for such race based measures” as affirmative action.11
Narrow Tailoring to Achieve the Educational Benefits of Diversity
“The purpose of the narrow tailoring requirement is to ensure that the means chosen ‘fit’ th[e] compelling goal” closely.12 Universities are supposed to engage in “serious, good faith consideration of workable race-neutral alternatives” before using racial classifications, according to Grutter.13 However, “visible examples of higher education institutions fulfilling this legal requirement are almost non-existent.”14 The recent Fisher decision should, if interpreted correctly, remedy this dismal state of affairs.15
Nine Supposed Educational Benefits of Student Body Diversity
(1) Classroom Diversity “Promotes ‘Cross-Racial Understanding’”16
The problem with this claim is that it is sometimes factually wrong.17 Whether diversity actually produces the touted benefits is an empirical question that most researchers are afraid to ask. As sociologist William Beer recognized decades ago, “It is as if affirmative action has assumed the status of a religious article of faith, and professionals choose to avoid studying its effects for fear of what they might find.”18 While social scientists rarely challenge affirmative action policy, researchers have steadily undermined the policy’s underlying premises. Harvard political scientist Robert Putnam, widely regarded as “a liberal academic,” conducted the largest study ever done on the impact of diversity on overall civic health.19 His stark conclusion: “The more ethnically diverse the people we live around, the less we trust them.”20
A recent study by research analyst Jesse D. Rude, research scientist Gregory C. Wolniak, and education professor Ernest T. Pascarella shows that “for some students, negative experiences with diversity may dampen the relatively progressive racial views they hold when entering college.”21 Stanley Rothman, Seymour Martin Lipset, and Neil Nevitte similarly concluded that “the greater the school’s diversity, the less students were satisfied with their own educational experience.”22 Where classroom diversity does not or cannot promote cross-racial understanding, no compelling state interest exists in that regard.
The Compelling Interest in Cross-Racial Understanding
The Grutter majority failed to establish the premise that there is a need for cross-racial understanding. The promotion of “cross-racial understanding” presumes a lack of such understanding. This presumption broadly attributes a negative trait, if not pathology, to nonminority students. On that point, a past president of the American Sociological Association wrote: “Re-education will need to be a routine part of the mass media and to operate within American families, especially white families.”23
Schools already provide a version of cross-racial understanding; promulgating the diverse array of leftist doctrine.24 In one study, liberal academics were found openly admitting to discriminating against conservatives in hiring, distributing grants, and reviewing papers.25 Given the ubiquity of left-liberal views in the social sciences,26 and the strident, overtly racialized resentment toward “white privilege,”27 minority perspectives are actually well-represented in most college courses that could plausibly be expected to provide any sort of opportunity for cross-racial understanding. Moreover, cross-racial understanding is essentially irrelevant to fields such as science, technology, engineering, and mathematics.
Narrow Tailoring to Achieve Cross-Racial Understanding
To ensure that race is used “no more broadly”28 than cross-racial understanding demands, schools should have to define cross-racial understanding, demonstrate that it is lacking, and establish that affirmative action will result in cross-racial understanding. Likewise, if any given applicant admitted under affirmative action cannot bestow cross-racial understanding, then narrow tailoring will not be met. Unfortunately, as political science and philosophy professor Laurence Thomas notes, “in the name of diversity, precisely what many minority students do not want is exposure to other traditions and peoples.”29
(2) Diversity “Helps to Break Down Racial Stereotypes”30
The Court neglected to substantiate the “break[ing] down of racial stereotypes” as a compelling interest, or even to identify more than one stereotype. The notion of stereotypes, when used as a metric for establishing a compelling state interest, suffers grievous empirical and conceptual difficulties. Thomas Sowell, among others, criticizes “the widespread use of the term ‘stereotypes’ to dismiss whatever observations or evidence may be cited as to distinguishing features of particular group behavior patterns.”31
The Compelling Interest in Breaking Down Racial Stereotypes
A significant conceptual difficulty arises when we seek to define and analyze stereotypes. How do we distinguish between a stereotype and a valid observation about group behavior? Remarks about crime,32 parenting habits,33 high school academic performance,34 or varying career preferences and expectations between women and men35 could fit into either category.
The charge of stereotyping sometimes founders upon challenge. For instance, Douglas S. Massey and his co-authors asserted in The Source of the River: The Social Origins of Freshmen at America’s Selective Colleges and Universities, that Asian and white students held “stereotypes” about minority students’ intelligence and academic achievement.36 However, as Stephan Thernstrom and Abigail Thernstrom note, what Massey et al. called “stereotypes” were “in fact simply accurate perceptions of group differences in academic skill.”37
The specter of “stereotypes” arises in many debates concerning social issues, particularly racial group differences or disparities.38 The reigning liberal orthodoxy stifles intellectual inquiry and constricts policy research.39 Allan Bloom wrote that “[a]ny research, however dispassionate, which might tend to reveal differences among nations, races, or sexes which are counter to the prevailing dogma is risky indeed to the scholar.”40 The actual experience of students throughout the country is that racial differences are a taboo topic for nonminorities, even though the government provides special privileges for minorities, sometimes at the expense of nonminorities.41 Of course, there is a different rule for groups—racial or otherwise—who can claim victim status. Stereotypes are welcome when expressed by minority groups. For instance, it is considered “eloquent, profoundly original,” and even “brilliant” to attribute “spirit-murder” to “white society.”42
Narrow Tailoring to Achieve Breaking Down Racial Stereotypes
Because the Court neglected to substantiate the “break[ing] down of racial stereotypes” as a compelling interest, or identify the stereotypes that need to be broken down, affirmative action is stymied by a hopelessly opaque objective.
Through narrow tailoring, universities should have to show that a particular stereotype is prominent in a given milieu, such as the locality or district that the university is located in. If courts do not require that universities substantiate actual stereotypes, then courts are simply deferring to universities’ stereotypes about nonminority students.
(3) Diversity “Enables” Students “to Better Understand Personsof Different Races”
The benefit of enabling students “to better understand persons of different races” 43 may sound similar to the promotion of “cross-racial understanding.” Repetition is one hallmark of an effective fallacy.44
The Compelling Interest in Better Understanding Persons of Different Races
Mounting evidence indicates that minority students are self-segregating in various ways,45 calling into question whether affirmative action fosters understanding. In fact, universities seeking to justify racial preferences on the basis of better understanding also actively encourage racial segregation when it suits their ideology.46 As law professor Patrick M. Garry observes, “Increasingly, universities are allowing dorms that house only certain racial groups; academic departments are emerging that serve primarily to enroll certain racial groups; and social and extracurricular groups are becoming more segregated.”47 Furthermore, as Stuart Taylor Jr. and Richard Sander demonstrate, “admitting students with large racial preferences” creates a tendency for less-prepared minority students to “self-segregate into soft majors and courses.”48 If minorities are self-segregating socially and academically, then there is a serious empirical question as to whether diversity is producing benefits.
For nonminorities who possess the attribute of cross-racial understanding, it is burdensome to demand that they continue to be disadvantaged by racial preferences in order to reinforce an attribute they have already developed or perhaps never lacked.
Narrow Tailoring to Achieve Better Understanding of Persons of Different Races
The Grutter majority promulgated a crude version of the discredited “contact hypothesis,” which asserts that more time spent with members of other racial groups leads to greater understanding between those groups.49 Putnam inadvertently disproved this hypothesis, to his dismay, as have others.50 Laurence Thomas observes that “it is in no way a part of the logic of diversity that people of different ethnic and racial backgrounds are naturally disposed to respect one another.”51
It is not “necessary”52 to use race to create “cross-racial understanding” in academic fields that do not lend themselves to any benefit that could plausibly be described as “cross-racial understanding.” If computer science, medical, or engineering school courses will facilitate better understanding of persons of different races, then the burden is on the state to establish as much.53 The argument for affirmative action is significantly undermined to the extent minority students who have benefited from racial preferences self-segregate into certain majors and courses.
(4) Diversity Makes Classroom Discussion “Livelier, More Spirited, and Simply More Enlighteningand Interesting”
The Grutter majority asserted that “classroom discussion is livelier, more spirited, and simply more enlightening and interesting when students have the greatest possible variety of backgrounds,”54 especially racial backgrounds.55 The majority’s assertion is no less offensive than the proposition that classrooms without minorities are more orderly, intellectually serious, and engaging.
As William G. Bowen and Derek Bok note in The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions, 86 percent of blacks at selective colleges are either middle- or upper-class.56 This outcome violates the principle enunciated in Orr v. Orr that suspect classifications “cannot be permitted” when “the choice made by the State appears to redound…to the benefit of those without need for special solicitude.”57 In fact, affirmative action frequently leads to the problem of “phantom minorities”: “[T]hey look white, have Anglo names, and come from backgrounds void of racial-life experience, but nevertheless, exploit race-based affirmative action.”58
As Columbia Law School professor Samuel Issacharoff bluntly concludes, “The commitment to diversity is not real. None of these universities has an affirmative action program for Christian fundamentalists, Muslims, orthodox Jews, or any other group that has a distinct viewpoint.”59 Affirmative action asks us to presume that the perspectives of minorities comprise a compelling state interest merely by virtue of their skin color. This is a pernicious form of racial favoritism.
The Compelling Interest in Enhanced Classroom Discussion
The notion that minorities make discussion “livelier” and “more spirited” sounds like a stereotype, and the suggestion that class discussion is “simply more enlightening” when minority students are present is a subtle smear directed at nonminority students. This assertion clearly implies that a classroom without officially-designated minorities is insufficiently lively, spirited, and enlightening. Consider a 2012 comment made by Tom Parker, then Amherst College dean of admissions: “If the court says that any consideration of race whatsoever is prohibited, then we’re in a real pickle. Bright kids have no interest in homogeneity. They find it creepy.”60 Moreover, as Brian T. Fitzpatrick, a law professor, has observed, “A number of elite universities profess to support racial preferences in order to create ‘livelier’ classroom discussions yet simultaneously censor those discussions. These efforts have included speech codes directed at quashing any comments that might offend students of certain racial groups.”61
Narrow Tailoring to Achieve Enhanced Classroom Discussion
On a practical level, the lively discussion theory doesn’t reflect actual classroom dynamics. “It would be marvelous if it were true that minorities were particularly inclined to learn and explore across their boundaries,” Laurence Thomas observes, yet, “The unvarnished truth…is that parochialism knows no boundaries.”62
To meet the requirement of narrow tailoring, colleges should verify that students admitted under affirmative action do convey more interesting and enlightening classroom discussion. Otherwise, race is irrelevant to any legitimate interest in classroom discussion, in many departments and classes.
(5) Diversity Prepares Studentsfora “Diverse Workforce” andthe “Global Marketplace”
The Grutter majority did not even attempt to explain how affirmative action prepares students for a “diverse workforce” or “global marketplace.”63Grutter provides no clear guidance about which students confer this preparation, which students require this preparation, what the ostensible preparation consists of, or why such preparation cannot take place without racial classifications.
The Compelling Interest in Preparing for a Diverse, Global Workforce
The Grutter majority insists that a diverse student body prepares students for their careers, as “the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”64 Yet the Court never names these “skills,” connects any necessary skills with the practice of affirmative action, or explains what skills will develop in a diverse student body.
Many students will go on to work with middle- or upper-class professionals, since the most popular college majors are business-related.65 For these students, it is irrelevant whether they were educated alongside people of different skin color.
Narrow Tailoring to Achieve Preparation for a Diverse, Global Workforce
Narrow tailoring requires the use of race to have more than a “minimal impact” on the compelling interest the government is trying to further,66 which is, in part, preparation for a diverse, global workforce. Instead, Grutter offered bromides about how “the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”67 However, affirmative action isn’t designed to promote such exposure; as noted above, 86 percent of blacks at selective colleges are middle- or upper-class. There is a vast gulf, theoretically and practically, between the goal of functioning in a global marketplace and the means of affirmative action.
(6) A “Highly Qualified, Racially Diverse Officer Corps…is Essentialtothe Military’s Abilityto Fulfillits Principle Missionto Provide National Security”68
A record number of amicus briefs were filed in Grutter,69 but scholars have acknowledged that the Court was “powerfully influenced” by one in particular: the amicus brief filed by “twenty-nine retired military officers and civilian leaders of the U.S. armed forces.”70 It is Grutter’s sole source for the supposed diversity-national security link.71
The Compelling Interest in a Diverse Officer Corps to Provide National Security
In the brief, the diversity-national security theory seemingly rests on outmoded fears of racial strife stemming from the “decades of experience” of officers focused on the Vietnam era.72 Neither Grutter nor the retired military officers and civilian leaders’ brief provide a shred of evidence that racial preferences will promote national security, or that the absence of racial preferences in today’s military would undermine national security. In fact, 60 percent of senior officers oppose race preferences, while only 15 percent favor them.73
The amicus brief claimed that “increased minority representation in the officer corps enhances our ability to recruit highly qualified minorities into the enlisted ranks,”74 but provides no citation or support for this assertion. Even if the basis for such an assertion existed, the underlying thought is morally toxic: that highly qualified minorities will be more likely to enlist if there are more minority officers of their race. It may be reasonable to expect such a wretched level of tribalism in human relations, but there is no room for such loyalties in the military. As Thomas Sowell has observed, “Military forces are seldom ethnically representative of their respective societies.”75 People of all races, colors, and creeds have demonstrated their commitment to the ideal of selfless service—an ideal that is historically connected to love of country rather than in-group racial favoritism.
Narrow Tailoring to Achieve a Diverse Officer Corps to Provide National Security
Even if affirmative action somehow fits the goal of national security, non-military colleges generally are not creating a diverse officer corps. The Grutter majority illogically extended the constitutionally significant interest in national security to every college in the nation.
(7) Affirmative Action Ensures “that Public Institutionsare Openand Availableto All Segmentsof American Society”76
Anyone with a high school degree or equivalent can be admitted to some form of college or university.77 Therefore, public institutions are actually “open and available” to qualified people of all races without affirmative action.
The Compelling Interest in Ensuring Open Public Institutions
Why would the Court even suggest that public institutions are insufficiently “open and available” to all, regardless of race? Here echoes the oft-repeated claim that minorities feel unwelcome in universities.78 In rejoinder, Laurence Thomas asks, fairly, “Why should only the unscrutinized subjective feelings of minorities be the guide here?… [M]inorities, like all human beings, are subject to making distortions with regard to their feelings.”79
Indeed, the goal of reaching a “critical mass” relies on subjective emotions that do not deserve constitutional promotion. According to the definition apparently accepted in Grutter, “critical mass means numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race.”80 But why should the state favor the feelings of certain groups over others, and how many other constitutional protections will be abandoned to cater to the feelings of certain groups? It seems that Grutter defines “open and available” public institutions by reference to the subjective impressions of favored racial groups.
Narrow Tailoring to Ensure Open Public Institutions
Laurence Thomas notes that despite twenty-five years of affirmative action, supporters of affirmative action policy continue to believe that the university is unwelcoming to minorities. If this is the case why should we believe that things will change after twenty-five more years?81
Needless to say, “race-neutral alternatives”82 are available to ensure that public institutions remain open to all, regardless of race. And studies analyzing the results of affirmative action bans indicate that minorities continue to be admitted to select universities, only in slightly lower numbers.83
Yes, “the dream of one Nation, indivisible”84 is noble, but it does not justify officially endorsed reverse discrimination. In fact, the Court provides no logic or evidence connecting affirmative action to that dream.
(8) The Supposed Leadership “Training Ground” Benefitof Affirmative Action85
Curiously, the Court asserted that “[i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”86 That seemingly innocuous platitude is put to a disturbing yet familiar purpose.
The Compelling Interest in Training National Leaders with Legitimacy in the Eyes of the Citizenry
Why would the Court suggest that schools might lack “legitimacy in the eyes of the citizenry”? The answer provided is that the “path to leadership” is not “visibly open” to certain unnamed racial or ethnic groups, therefore leadership lacks “legitimacy in the eyes of the citizenry.” Of course, the Court is not speaking here on behalf of “the citizenry” as a whole, but instead on behalf of a particular, racialized perspective. The unnamed racial and ethnic groups demand, or so the Court posits, that their groups be represented to a greater degree. The Court is catering to rank tribalism. There is no “reasoned, principled explanation for the academic decision”87 to define nebulous perceptions of legitimacy as constitutive of a compelling state interest.
Somewhat humorously, the Grutter majority could muster but one example of the “leaders” trained in law schools: politicians.88 Taking Grutter’s reasoning at face value, using law schools to prepare future politicians is not a compelling government interest, nor is it narrowly tailored to do so.
Narrow Tailoring to Achieve the Interest in Training National Leaders
Law schools and other educational institutions can serve as training grounds for leaders without affirmative action. It should not need to be pointed out that minorities are free to attend universities and law schools and become leaders in the absence of racial preferences. It seems problematic to expect that national leadership would gain “legitimacy in the eyes of the citizenry” via a flawed, divisive policy such as affirmative action.
Here, the Court gave itself the lamentable task of explaining why tribalism is a compelling state interest. The Court projected onto unnamed racial and ethnic groups a belief that unspecified “leaders” will lack undefined “legitimacy” unless members of those groups see racial balance among the leaders. Grutter’s subtle descent into “simple racial politics”89 evaded the fundamental test of strict scrutiny.
(9) Affirmative Action Diminishes “the Forceof…Stereotypes”90
The Compelling Interest in Diminishing the Force of Stereotypes
Grutter suggests that it would be a stereotype to believe that “consistently” held views present themselves in well-established racial and ethnic patterns. However, as Thomas Sowell concludes, “the presupposition of an absence of distinguishing group values and traits is as arbitrary as any stereotype.”91
On certain matters of broad social significance there are “consistent” belief patterns, including long-standing and widely recognized racial trends. For example, in the 2012 presidential election, 93 percent of blacks voted for the same major party candidate92 and 71 percent of Latinos voted for the same candidate.93 On the topic of discrimination, 58 percent of white young adults “believe that discrimination against whites has become as big a problem as discrimination against blacks and other minorities,” versus 24 percent of black young adults.94
By invoking fears of “stereotypes,” Grutter does nothing to establish a compelling interest justifying racial classifications. It is not a compelling state interest to counter the notion that there are frequent commonalities in the opinions of racial group members.
Narrow Tailoring to Diminish the Force of Stereotypes
If colleges are genuinely in the business of countering stereotypes, then they should identify the stereotype to be countered, and select applicants who counter the identified stereotype. If schools aren’t identifying real stereotypes to be countered, then affirmative action cannot possibly “fit” the goal of countering stereotypes. Affirmative action is premised on the notion that minority students make “unique contributions” to their schools.95 This premise forces the Court into a logical bind: It is a thought crime (“stereotype”) to suggest that minorities have a “characteristic minority viewpoint,”96 yet the Court also claimed that minorities offer “a perspective different from that of”97 nonminority groups. Which is it?
Grutter forces us to presume—as if it were not a stereotype—that nonminority students harbor such a significant number of stereotypes that schools must make it a “mission”98 to diminish the legion of unidentified stereotypes.
Grutter must be challenged on both prongs of strict scrutiny. The Supreme Court has previously held that racial classifications are “presumptively invalid and can be upheld only upon an extraordinary justification.”99 The educational benefits of diversity barely exist, and cannot persuasively be considered to constitute an “extraordinary justification.” Racial preferences are not narrowly tailored to bring about any of the nine supposed benefits of a diverse student body. The Grutter decision gave undeserved deference to universities, and entrenched stereotypes about nonminorities. These stereotypes remain an integral part of affirmative action plans, which violate the rights of so-called “nonfavored groups.”100