Grutter at work: a Title VII critique of constitutional affirmative action.

• Author: Bulman-Pozen, Jessica

NOTE CONTENTS INTRODUCTION I. GRUTTER'S DIVERSITY A. The Compelling Interest: Diversity-as-Integration B. Narrow Tailoring: Diversity-as-Difference II. TITLE VII'S CRITIQUE OF GRUTTER A. Affirmative Action Under Title VII B. Title VII's Case for Integration 1. Subjectivity and Numerical Accountability 2. Subjectivity and Affirmative Action C. Reading Grutter Through the Lens of Title VII III. CONSEQUENCES FOR TITLE VII A. Grutter's Migration B. The Threat C. Making Grutter Work CONCLUSION INTRODUCTION

Grutter v. Bollinger (1) transformed affirmative action jurisprudence. Resuscitating Bakke, (2) and renovating it in the process, Grutter has invigorated educational affirmative action programs and changed the terms of the affirmative action debate in other contexts, most notably employment. While the Court in the past twenty-five years has limited affirmative action to the strictly remedial context for public employers, and lent only slightly more leeway to private employers, Grutter promises to expand employers' range of legal justifications. The opinion introduces a rich understanding of diversity that emphasizes values of integration--guaranteeing and signaling that American institutions are open to all, facilitating cross-racial understanding, and breaking down stereotypes--for both particular institutions and society at large. Grutter's diversity is not the diversity of difference that stands as an alternative to remediation, but rather a diversity of integration that extends the remedial rationale from backward-looking compensation to forward-looking solutions to racial segregation and hierarchy.

Because Grutter's conception of diversity has remedial resonances and, even more so, because the opinion focuses on society's need for meaningful integration, the implications of Grutter's holding cannot be contained by university walls. Yet while several scholars have asked whether courts will import Grutter's diversity rationale into the employment context, (3) none has taken up the issue that formed the fault line between Grutter and its companion case, Gratz v. Bollinger (4): narrow tailoring. (5) In this Note, I explore the implications of Grutter's narrow-tailoring discussion for employment discrimination law and further ask how employment discrimination law might guide interpretations of Grutter. Though Grutter sheds new light on the constitutionality of public employers' affirmative action programs, I focus on Title VII law, which covers both public and private employers and which many lower courts have interpreted as less permissive of nonremedial affirmative action. (6) I contend that Title VII illuminates Grutter's internal contradictions and provides a framework for reading the opinion, and that Grutter, in turn, can productively inform employment affirmative action plans.

In Part I, I describe the tension in Justice O'Connor's Grutter opinion between two forms of diversity: diversity-as-integration and diversity-as-difference. Diversity-as-difference (7) understands racial diversity as a proxy for viewpoint diversity and stresses the educational value of interaction among students with different backgrounds and perspectives. Diversity-asintegration, by contrast, emphasizes our nation's history of racism, segregation, and inequality, and regards race not as a proxy for viewpoint but as itself the salient category: Racial diversity breaks down current barriers to equal opportunity both directly, by opening institutions to all racial groups and reducing de facto segregation, and indirectly, by bringing members of different races into sustained contact that challenges stereotypes and fosters interracial connectedness. (8) While Grutter's compelling-interest discussion champions diversity-as-integration and the related quantitative concept of critical mass, the opinion's narrow-tailoring discussion insists on an individualized decisionmaking process that endorses diversity-as-difference.

To resolve this internal tension, I argue in Part II that Title VII doctrine (9) supports a reading of Grutter based on diversity-as-integration. Grutter's narrow-tailoring discussion conflicts with standards that have shaped employment discrimination law. Whereas Grutter applauds individualized, subjective decisionmaking and seems to reject numerical accountability, courts evaluating Title VII claims have expressed skepticism about subjective decisionmaking, which is readily infected by bias, and have demanded numerical benchmarks. Title VII law's longstanding engagement with affirmative action has yielded the manifest imbalance standard, which requires that affirmative action plans use numerical goals pegged to labor markets. (10) Applying this logic to Grutter suggests a demographically derived standard for integration that falls between rigid quotas (11) and the opinion's inward-looking critical mass inquiry.

Finally, in Part III, I explore Grutter's consequences for Title VII doctrine. While the opinion's narrow-tailoring analysis threatens employment discrimination law more than it threatens educational affirmative action, Grutter's diversity-as-integration rationale and its attendant concept of critical mass reaffirm the broad view of Title VII that Supreme Court precedent sets forth, but that lower courts and Supreme Court dicta have since eroded. The diversity-as-integration rationale suggests that employers may implement affirmative action plans not only to compensate for their own past discrimination but also to rectify workforce imbalances, and that they may use general labor market figures to determine whether there are imbalances. In addition, Grutter's critical mass standard complements the manifest imbalance inquiry and underscores that employment discrimination law would benefit from bringing Grutter to the workplace.

1. GRUTTER'S DIVERSITY

   The Supreme Court's opinion in Grutter has shifted the terms of an affirmative action debate long focused on the distinction between diversity and remedial rationales. Embracing the former, Grutter recasts diversity to encompass integration and therefore defines the diversity rationale not as an alternative to the remedial rationale, but as an extension of it. (12) When the Court turns to narrow-tailoring analysis, however, it relies on Bakke's requirement of individualized consideration for every applicant, a constraint that emphasizes racial difference over meaningful integration. (13) This deep divide in the opinion is expressed in three interrelated tensions: While the compelling-interest discussion champions diversity-as-integration, the benefits of diverse institutions to society at large, and the use of critical mass to achieve integration, the narrow-tailoring discussion champions diversity-as-difference, the benefits of diversity only within institutions, and individualized consideration for each applicant that precludes attention to numerical benchmarks.

   1. The Compelling Interest: Diversity-as-Integration

      In Grutter, a clear majority of the Court held for the first time that "student body diversity is a compelling state interest." (14) The Court drew on Justice Powell's Bakke opinion, but transformed as much as revived it. Powell argued that universities have a compelling interest in selecting students who will contribute most to the "robust exchange of ideas." (15) By using race as a proxy for viewpoint diversity, Powell articulated a conception of diversity-as-difference: Racial diversity was valuable inasmuch as it brought different perspectives to university classrooms and fostered lively discussion.

      Grutter articulates a new conception of diversity-as-integration that conceives of both diversity and educational purposes more expansively than Bakke. Whereas Bakke assumed a link between race and viewpoint, at least in the aggregate, (16) Grutter relies in part on the very absence of such a nexus and champions intraracial diversity. (17) The opinion regards race not as a proxy for viewpoint, but as itself salient: More important than the likelihood that racial minorities will bring unique perspectives to the university is the recognition that race triggers stereotypes, prejudice, and isolation. (18) Despite emphasizing race as such, Grutter's vision of what race means is deeply contingent. The opinion gestures toward a world in which racial diversity will simply yield "a student body that looks different." (19) But Grutter acknowledges that this is not yet our world, for racial minorities are likely to have unique life experiences "[b]y virtue of our Nation's struggle with racial inequality." (20) The opinion destabilizes views of racial difference not by embracing a thin conception of race or by demanding assimilation, but rather by emphasizing intraracial difference and casting the university as a locus of change where students of all races break down stereotypes and forge connections and new identities. (21)

      Equally central to Grutter's diversity-as-integration rationale is the Court's belief that educational diversity will foster integration in society at large. Grutter posits that diverse universities are instrumental to realizing extrinsic social goals, such as preparing students to work in "an increasingly diverse workforce," (22) participate as citizens in American society, (23) and serve as "leaders with legitimacy in the eyes of the citizenry." (24) Integration signals that institutions and paths to leadership are open to members of all races, and this both bolsters the legitimacy of such institutions in the public eye and dynamically facilitates integration by suggesting to minorities that it is worthwhile to invest in their human capital. (25) Training its eye on "the dream of one Nation, indivisible," (26) Grutter delivers on the promise of Brown, not the more limited promise of Bakke. (27)

      Grutter's rich understanding of diversity-as-integration generates two interwoven doctrinal innovations. First, the Court suggests that...