Federalism, diversity, equality, and Article III judges: geography, identity, and bias.

Author:Rush, Sharon E.
Position:IV. Grutter's Lessons About Federalism, Diversity, Equality, and Article III F. Lesson Six: The Holding in Fisher Is Irrelevant to Diversity Goals through VIII. Conclusion, with footnotes, p. 153-184
  1. Lesson Six: The Holding in Fisher Is Irrelevant to Diversity Goals

    This analysis does not change because of the Fisher Court's decision. The Fisher Court could have ruled for or against Fisher on the facts and kept the basic holding of Grutter intact, or it could have held that the Constitution prohibits states from considering race in their public university admissions processes. An affirmation of Grutter reinforces, from the Constitution's perspective, the reality that group racial identity--the Group Equality Principle is at the heart of diversity in public education. Moreover, it also reinforces the importance of federalism and state sovereignty because each state may choose whether or not to consider race in university admissions.

    But even if the Fisher Court had overruled Grutter and held that race cannot be considered in public university admissions processes, it would not mean that individual racial identity is no longer protected under the Constitution. The Individual Equality Principle would survive, in that it still would be unconstitutional to discriminate on account of race. Indeed, Fisher's suit was brought under a claim of racial discrimination through the current admissions policy, and probably would have been the Court's rationale for overruling Grutter if it had done so; to consider race in state university admissions even as one factor among many would be race discrimination. No state, then, would be able to identify as an "affirmative action" state as that phrase is commonly understood.

    But what would overruling Grutter do to the Group Equality Principle and federalism? Importantly, even if the Fisher Court had denied states the choice to consider race in their public school admissions processes, it is unlikely that diversity, including racial diversity, would have become irrelevant to public institutions. (203) It is worth emphasizing that the underlying rationale for the Grutter Court's decision is that a racially diverse class enriches the learning environment, in that students can share experiences gained from their racial identities. (204) Every student in the classroom has experiential bias based on race and myriad other factors.

    Naturally, classrooms have always been filled with students who have unique experiences to share with each other. Grutter's focus on including the experiences of racial minorities simply highlights the need, in a democracy that values equality and representation, to acknowledge that the experiential biases of these minorities are just as valuable as those of other students including white students--in enriching the learning environment. Grutter exposes this history and the hidden assumption behind excluding racial minorities from certain public universities: that only white students' experiences have ever mattered.

    Moreover, just as experiential bias has always formed the basis of the classroom learning environment, the importance of including the experiences of racial minorities (and thus striving to meet the Group Equality Principle) will not evaporate if Grutter is overruled, as it probably will be someday. State universities understand this reality. While a future Court might make it unconstitutional for a state to hold itself out or identify itself as an "affirmative action" state, all states have chosen to identify as "diversity" states. My research efforts did not find one state, through its public university or college websites, that did not value diversity. Indeed, go to any public college or university website and inevitably it will hold itself out as an institution that seeks a diverse student body. In fact, the University of Wisconsin-Madison recently admitted that it altered a photo to include racial minorities for the sole purpose of holding itself out as an institution that values racial diversity. (205) While a future Court decision might present challenges to the way in which diversity, especially racial diversity, is achieved, achieving diversity--or meeting the Group Equality Principle--is ostensibly a priority for all state universities. Moreover, because the racial demographics in the United States are becoming more and more diverse, it is unlikely that diversity will become less important.

    Valuing diversity is a reasonable, sound, and realistic choice. As Professor Leong details in her recent article, however, diversity must be valued for the right reasons and not just for the sake of appearing non-racist. (206) And, because public institutions can choose to be diverse, their decisions support federalism. Studies show that many, if not most, environments, particularly those that provide services to the public, strive to be diverse. The military is a leader in understanding the importance of diversity, and Congress recently created "The Military Leadership Diversity Commission" to try to increase diversity at the more senior levels. (207) Businesses want diverse workforces, and a recent McKinsey report shows why: "U.S. companies with the highest executive-board diversity had returns on equity 95 percent higher and earnings margins 58 percent higher, on average, than those with the least executive diversity." (208) Public schools at all levels also want diverse student bodies. In fact, some schools wanted it badly enough that they used voluntary integration plans to try to achieve it; however, the use of such plans was struck down by the Court in Parents Involved in Community Schools v. Seattle School District No. 1. (209) Even "non-affirmative action" states--those states where citizens have already exercised their sovereignty to prohibit the use of race in admissions--want their public institutions to be diverse and go to enormous efforts and expense to meet their goals. (210) If diversity is not going to be associated with racial equality principles under the Constitution, as a society we nevertheless seem to operate on the premise articulated by the Grutter Court that "[effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized." (211) Certainly, diversity as a holistic concept, where race is only one part, seems to be here to stay. Leaders who exercise good business and democratic judgment support diversity.

  2. Lesson Seven: This All Relates to the Article III Judiciary

    The effective leader who supports diversity understands that diversity is about representation and legitimacy. A business that employs no women can say that it does not discriminate on the basis of sex, but it would be hard to believe such a claim. Even if such a business did not discriminate, it would appear to discriminate. And geographic identity matters in this regard, too. Imagine how valid it would be to question the legitimacy of an international court if all of the judges on the court were from the same country. (212) Even if the judges were impartial, they would appear unfairly biased because the views of judges from other countries would be excluded. (213) To have legitimacy as an international court, the judges must be representative of the international community and come from different countries precisely because of their experiential diversity. Similarly, in order to have legitimacy, the experiential biases that attach to judges because of their geographic identity (and other identity traits) must be equally represented on the Article III bench.

    So it is with states and Article III courts in the United States. Professor Sherrilyn Ifill pointed out that a circuit court of appeals would appear unfairly biased if it was comprised of judges from only one state, because the other states in the circuit would be unrepresented on the bench. (214) This Article extends this concept--because each state is independently sovereign and has its own identity, the absence of a state resident as an Article III judge on the appellate bench unconstitutionally excludes that state's right to bring its experiential and fair state-identity bias to the decision-making process. Congress recognized this and therefore requires by law that each state have a minimum of one resident on each of the circuit courts of appeal. (215)

    Presidents and citizens want diverse Article III courts--diverse in a holistic and experiential sense." (216) The structure of the Article III system at the lower court levels adds legitimacy to the Article III judiciary because all of the states are represented in the system. Substantively, federal judges who are citizens of the states in which they sit also bring their local spirits to the federal bench; this is not a matter of unfair prejudice, but rather a matter of identity shaped by experiences and associated pride. A judge's geographic identity adds federalism value to the bench, and because the nation is comprised of fifty states, each of those geographic identities belongs on the federal bench.


  3. Diversity Jurisdiction

    The reality of the potential for unfair local bias--conscious or unconscious, and however remote--offers some support for diversity jurisdiction. When Alexander Hamilton expressed his concern that the "local spirit(s)" might unduly influence state judges to favor their states over the federal government, (217) he might have been expressing a concern about conscious or unconscious unfair bias. In any event, the idea behind diversity jurisdiction is that a state judge will identify with a litigant from their state such that their shared geographic identity creates an "us versus them dichotomy within the lawsuit. The shared geographic identity between the judge and local resident, so the theory goes, binds them so strongly that it is assumed the judge "will find a way," perhaps unwittingly, to rule in favor of the resident. The Article III provision for diversity jurisdiction in federal court provides an out-of-state litigant with a way to avoid this risk. Thus, Congress'...

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