Affirmative Action After Grutter: Reflections on a Tortured Death, Imagining a Humanity-Affirming Reincarnation

• Author: Rhonda V. Magee Andrews
• Position: Professor of Law, University of San Francisco School of Law
• Pages: 705-716

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Professor of Law, University of San Francisco School of Law. J.D., M.A., 1993, University of Virginia. B.A., 1989, University of Virginia. These comments benefitted immensely from the rousing roundtable discussions at the two-day symposium at The LSU Law Center, March 12 and 13, 2003. Thanks also to Professor John Denvir, Nitin Subhedar and Daniel J. O'Connell for comments on previous drafts; and to Gavin Sammarco and Tammy Higgins for indispensable research assistance.

Affirmative action is part of a human dream, one that we venture to call universal. All human beings want good, useful, decent lives for themselves and their children....

There is joy in deciding to take on the whole world as home, treating every path as sacred, treating every person as deserving respect and care, taking less so that all the children are fed, needing less so that your soul can sleep in peace.

Charles R. Lawrence and Mari J. Matsuda¹

I Introduction

Though the moribund state of affirmative action law fueled racial remedies scholarship for the past ten years or more,² the Supreme Court's decision in the Grutter case this past summer breathed a bit of stale life into the ailing affirmative action movement. Professor Michael Higginbotham's hypothetical closing argument in the Grutter and Gratz cases provides a succinct and straightforward articulation of what indeed appears to have been the most viable Page 706 argument in support of affirmative action.³ Tightly focused on the diversity rationale which the Supreme Court's opinions ultimately endorsed,⁴ Professor Higginbotham's argument seeks to situate the challenged programs comfortably within the cramped spaces left open begrudgingly by prevailing interpretations of the applicable Constitutional law.⁵

But insofar as he succeeds in fitting his argument within the contours of prevailing law, Professor Higginbotham demonstrates beautifully the law's limits, irrationalities, and near fatal lack of transformative potential. Thus, while articulating the pro-affirmative action argument with the greatest appeal to the Court's moderate center, Professor Higginbotham's argument, like the Supreme Court doctrine upon which it depends, sets aside affirmative action's main practical effect and most pressing aboriginal objectives-redressing discrimination and segregation by increasing opportunities for marginalized groups-as tangential.

In the following few pages, I argue that the standard "diversity" rationale for affirmative action, though of obvious appeal, is not a remedial or corrective justice-based rationale, and hence, fails to address the central concerns of traditionally disadvantaged groups. Indeed, the diversity rationale exemplifies the imposition of a largely exogenous-though admittedly often compatible and generally beneficial-objective upon the legal agenda of traditionally Page 707 marginalized groups. To better reflect the insight of those groups, and to better approximate just results, the justifications for affirmative action must be revised and broadened.

In Section II, I argue that the most compelling justifications for affirmative action-remedying the effects of segregation, discrimination, and related past and present forms of systemic subordination which have undermined educational and other opportunities for traditionally oppressed groups-have curiously received little support from the courts.⁶ These discarded justifications not only lend much-needed moral force to the arguments in favor of affirmative action but, if employed, would strengthen the claims to legitimacy of a justice system with a history of supporting racial oppression. I then briefly suggest, in Section III, a new way of thinking about what I believe is the larger project at the root of affirmative action-the continuing Reconstruction of post- slavery America. I call upon advocates of reform and Reconstruction to work toward forging a new, deeper commitment to the remedial goals of affirmative action as a preliminary step toward (1) embracing a jurisprudence focused on the essential human dignity interests which make our tradition of racialist thought and policy so repugnant, a legal philosophy based on what I have called "humanity consciousness," and (2) articulating a broad agenda of reformist policies and programs consistent therewith.⁷

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II Setting Aside Diversity: Reclaiming The Justifications For Affirmative Action Rooted In Traditional Remedial Theory And Notions Of Corrective Justice

The rationale most widely embraced for the use of affirmative action in education, and the one upon which Professor Higginbotham's arguments consequently and almost necessarily rest, is the goal of ensuring diverse educational environments.⁸ The University of Michigan's affirmative action programs should be validated, the argument runs, because they amount to legitimate efforts to maintain the kind of diverse classrooms which redound to the benefit of all the students, including those entitled to be there based on "merit" alone.⁹ This was, of course, the rationale endorsed most strongly in Justice O'Connor's opinion in Grutter, upholding the affirmative action program at Michigan Law School.¹⁰

It is important to keep in mind, however, that the closing thoughts argued by Professor Higginbotham's hypothetical lawyers on Michigan's behalf might have been shaped differently, or rather, quite a bit more radically. For example, instead of essentially conceding their legitimacy as indicia of merit in the admissions process, Michigan's lawyers might have mounted a strong challenge to the criteria upon which the "merit" argument is based-the SAT, LSAT and GPA-pointing out their inherent biases and questionable claims to legitimacy.¹¹ Or, they might have developed a stronger case for the use of affirmative action to remedy past and present discrimination at the University of Michigan, which could no doubt have been factually established.¹²

Higginbotham's hypothetical lawyers eschew those and other more radically transformative arguments in favor of one with perhaps the most plausible chance of garnering the Supreme Court's backing, one that would not impugn the reputation of the University of Page 709 Michigan regarding any past and present race discrimination, and the one least threatening to the status quo.¹³ The argument is nearly exclusively focused on the diversity rationale, with only tangential references to the goals of integration, desegregation, and improving educational opportunity for students from disadvantaged groups.¹⁴Pragmatically, this makes sense; after all, the University of Michigan had itself focused expertly on the diversity rationale in presenting its case for affirmative action.¹⁵ And the most viable precedent-Justice Powell's opinion in Bakke-identified the First Amendment interests underlying a University's interest in a diverse class of students as an important and compelling governmental interest, the only such interest among the many proffered in support of the affirmative action programs at issue there.¹⁶ Thus, the framing of the case around the diversity justification naturally illustrates a sound legal strategy.

Nevertheless, resting the argument for affirmative action solely on the First Amendment-based diversity rationale is not without its troubling implications and consequences. Among the most compelling critiques of the diversity rationale from the perspective of a progressive race theorist have been those asserted by Professor Charles Lawrence.¹⁷ Professor Lawrence argues that the courts have endorsed a "shallow" notion of diversity-one which does not explicitly concern itself with the use of diversity to dismantle the legacies of slavery and segregation, namely, internalized and institutionalized racism and the systemic miseducation of Blacks, Mexicans, Native Americans and others traditionally subjected to discrimination and still suffering from its effects.¹⁸ Indeed, Professor Lawrence contends that a shallow notion of diversity serves the interests of the status quo better than those of the traditionally disadvantaged.¹⁹ He insists, as did Justice Marshall in the early days of the Civil Rights movement, that integration and remedying continuing societal discrimination must be among the legitimate Page 710 justifications for an affirmative action program.²⁰ He insists that the courts adopt a view of affirmative action's justification that is not just forward-looking, but backward-looking too.²¹ In other words, Professor Lawrence continues to press for a view that justifies affirmative action as a remedial tool.²²

I agree with Professor Lawrence. For several reasons, it makes sound jurisprudential sense to base the argument for affirmative action on a remedial theory, a theory of corrective justice, rather than on a notion of diversity based on a utilitarian, distributive justice theory of the overall educational good. The plain fact is that affirmative action would be neither necessary nor acceptable were it not for the history and ongoing operation of racism in the United States, for so long explicitly sanctioned by law. As many scholars have pointed out, the courts have wrongly rejected the relevance of this history.²³ Indeed, while the courts have rejected these remedial justifications, many of society's...