With major lawsuits on affirmative action pending, it might be useful to review some essential points. The place to start, of course, is with the Constitution, which, together with federal law, forbids government discrimination on the basis of race or ethnicity. Government runs afoul of the law when it “classifies” or distinguishes among people in terms of their race and takes action against them.
That happened in World War II. During “the crisis of war and of threatened invasion,” the federal government prohibited all people of Japanese descent from West Coast military zones. The government defended against challenges to its actions. And the Supreme Court applied “strict scrutiny” in reviewing them. “All legal restrictions which curtail the civil rights of a signal group are immediately suspect,” said the Court in the Japanese Relocation Cases. “That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.” The Court upheld the government actions. But the significance of the cases lay in the fact that strict scrutiny, albeit a weak application of it, was applied to a racial classification for the first time. Not incidentally, in 2011 the Obama administration “confessed error” in the cases, and in 2018 the Roberts Court overruled them.
Strict scrutiny is said to be the most strenuous test in constitutional law. A racial classification may survive strict scrutiny but only if it is “narrowly tailored” to achieve “a compelling government interest.” And “a compelling government interest” is the specific end is to be achieved.
Writing in 2003, lawyers Mark Pickrell and Roger Clegg said that the only interest that the Supreme Court consistently has found compelling enough to justify racial and ethnic discrimination is discrete remediation of prior discrimination. Pickrell and Clegg observed that other interests might be hypothesized as compelling enough to justify temporary racial and ethnic classifications by government: such as national security and the prevention of bloodshed in the aftermath of a prison race riot. But except in situations literally involving life and death, they wrote, the Court has been “rightly reluctant to accept non-remedial justifications as compelling.”
That same year, in Grutter v. Bollinger, Justice O’Connor, writing for a majority of five, accepted a non-remedial justification as compelling—that of “educational benefits from student body diversity.”
The question before the Court was “whether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities.” In the Bakke case of 1978 Justice Powell had taken up the same question. O’Connor borrowed from Powell’s analysis of four possible interests.
One was reducing the historic deficit of traditionally disfavored minorities in medical schools and professions. That, said O’Connor, could lead to “an unlawful interest in racial balancing.” A second was remedying societal discrimination. O’Connor said that could risk placing unnecessary burdens on innocent third parties “who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.” O’Connor said that could be a worthy goal but the program under review was not “geared to promote” it.
Attaining the educational benefits of diversity was the other possible interest, and O’Connor accepted it, with one proviso–that “constitutional limitations protecting individual rights may not be disregarded.” O’Connor agreed with Justice Powell’s view, stated in his opinion in the Bakke case, in which he said that academic freedom “long has been viewed as a special concern of the First Amendment.” Nothing less than the “nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” In seeking the “right to select those students who will contribute the most to the ‘robust exchange of ideas,’” a university seeks “to achieve a goal that is of paramount importance in the fulfillment of its mission.”
In Bakke, also a race preferential admissions case, there was not an opinion holding that educational diversity is a compelling government interest. It was left to O’Connor to write that opinion. Powell and O’Connor thus were the architects of the diversity rationale, but it is in doubt because of the tendency of its advocates to discuss diversity in general terms. Against this Justice Kennedy wisely said, “A university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.”
