Santa Clara University

by Margaret M. Russell, Professor of Law, Santa Clara University 

In June 2001, the U.S. Supreme Court decided two closely watched cases in the area of affirmative action in higher education. In Grutter v. Bollinger, the Court upheld by a 5-4 vote the University of Michigan Law School’s admissions program. In Gratz v. Bollinger, the Court struck down by a 6-3 vote the University of Michigan’s undergraduate admissions program. In the view of the two Justices (Sandra Day O’Connor and Stephen Breyer) who joined the majority in both cases, the salient constitutional difference between the two was the means by which racial diversity was used as a factor in the admissions process. In the law school plan, racial diversity was considered in an individualized, non-formulaic manner; in the undergraduate plan, racial diversity was assigned points in a numerical scoring formula. The principal outcome of these decisions is the affirmation of student body diversity as a "compelling state interest" that can justify the use of race within certain limits in public higher education admissions.

From my standpoint as a constitutional law professor, a particularly interesting strand of the Grutter majority opinion is the reliance upon the First Amendment to uphold the right of public universities to value student body racial diversity. Justice O’Connor notes: "We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." The Court goes on to recognize the right of public universities to engage in "complex educational judgments" within their spheres of educational autonomy and within constitutionally prescribed boundaries. In support of this principle, the Court invokes a number of prior cases, including Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke (1978) that 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 my view, the dissenters miss the point of university admissions policies that aim to achieve diversity of many kinds, including racial diversity. These policies are not founded on the presumption that any particular predetermined or prescribed diversity of thought would result from choosing students from different backgrounds. (Moreover, as a teacher, I can testify that it would be foolish to assume that any student, because of his or her background, has any predictable viewpoint about anything. The value lies in the opportunity for dialogue.) Rather, the reason why racial diversity is meaningful rather than "cosmetic" has everything to do with the expressive freedoms enhanced by the overarching message of inclusion in a dialogic community. Unlike the all-male policy struck down by the Court in the Virginia Military Institute case, the demonstrated state interest in Grutter was one of inclusion. In recognizing the link between this goal and the unique role of the university, the Court validated the importance of both expressive freedoms and equality in building educational institutions.