In defense of deference.

• Author: Fuentes-Rohwer, Luis
• Position: Infusion of race into the university's admission process - From Brown to Bakke to Grutter: Constitutionalizing and Defining Racial Equality

For my part, as I went away, I reasoned with regard to myself: "I am wiser than this human being. For probably neither of us knows anything noble and good, but he supposes he knows something when he does not know, while I, just as I do not know, do not even suppose that I do. I am likely to be a little bit wiser than he is in this very thing: that whatever I do not know, I do not even suppose I know." (1)

You want the death penalty? Persuade your fellow citizens [via legislation or by amending the Constitution].... You don't want abortion? Persuade them the other way.... Judges have no more capacity than the rest of us to determine what is moral. (2)

In late October, 1997, University of Michigan students unable to gain admission to its undergraduate school filed a lawsuit in federal court against the University. The plaintiffs maintained that the infusion of race into the admission process violated their rights under the Fourteenth Amendment. (3) A few days later, while answering general questions about the case, and specifically about the University's admission process, University President Lee Bollinger remarked that "[t]his [suit] is a campaign to reverse the constitutional decision supporting higher education's efforts to diversify." (4) Most appropriate to our general inquiry, the President stated that "I think inevitably the Supreme Court will and must speak to this issue." (5)

This was a remarkable prediction, on two fronts. First, the modern affirmative action (6) controversy presents one of the most important and vexing questions of social policy in the last quarter century. And the Constitution does not offer clear guidance for resolving this difficult question, if any at all. (7) Hence, this issue appears to be the perfect candidate for a properly democratic resolution, at the hands of those to whom we entrust such matters. (8) Generally, one would suppose that complex questions of social policy should be resolved no other way.

And yet, secondly, President Bollinger proved to be deadly accurate. This last Term, in the Michigan Cases, (9) the Supreme Court offered its constitutional views about the use of race in higher education. Its approach was rather surprising. Before the Court decided the Michigan Cases, and as a direct result of the Court's mechanical approach to race conscious measures, the resolution of these cases appeared pre-ordained. First, the Court would assert that race had in fact been used in admission decisions. Indeed, the University admitted as much. As such, the Court would apply its strict scrutiny test, and would demand not only that the state assert a legitimate and compelling interest, but also that the means in question be narrowly tailored to these purported ends. The Court would then offer its view about the myriad harms of racial classifications, (10) after which it would conclude that race may not be used by admission officers except in an extremely limited set of circumstances that no set of facts would ever meet. In keeping with its recent cases addressing the use of race in districting for example, the Court might also choose to apply its "predominant factor" test; (11) it would matter little, of course, as the Court would likely invalidate the programs in question under either test, by a five-to-four vote, with Justices O'Connor and Kennedy at the center of the storm. This was the ultimate outcome anticipated by most court-watchers including the Hopwood Court (12) and the Michigan District Court. (13)

In a series of surprising moves, the Court discarded the script. In the law school case, Grutter v. Bollinger, a Court majority endorsed Justice Powell's view in Bakke that the goal of diversity in college admissions "can justify the narrowly tailored use of race in selecting applicants for admission to public universities." (14) As far as holdings go, this one is quite unremarkable. Far more interesting and of greater significance is the way the Court arrived at this conclusion. "Context," stated Justice O'Connor writing for the majority, "matters when reviewing race-based governmental action under the Equal Protection Clause." (15) In the context of higher education, the "Law School's educational judgment that ... [racial] diversity is essential to its educational mission is one to which we defer." (16)

In his opinion dissenting from the Court's holding, Justice Thomas exclaimed that the Court's deference to the Law School's educational judgment is "antithetical to strict scrutiny." (17) Similarly, Chief Justice Rehnquist complained that the Court's "application of ... [strict scrutiny] is unprecedented in its deference." (18) Not to be outdone, Justice Kennedy described the Court's application of strict scrutiny as "nothing short of perfunctory" for "accept[ing] the University of Michigan Law School's assurances that its admissions process meets with constitutional requirement." (19)

In this Essay, we defend the Court's deference to the judgment of educators and admissions officials on the necessity of raceconscious admissions. Our central thesis is that the Michigan Cases are properly understood as representing the proposition that affirmative action in higher education--and perhaps raceconscious state action more broadly--is centrally a question of public policy and less so a question of constitutional law. Neither the constitutional text nor constitutional doctrine provides direct guidance on the constitutionality of race-consciousness by state actors. Fundamentally, affirmative action is a moral question and an issue of educational policy. These are precisely the questions for which judges are less useful and administrations are at a comparative institutional advantage. Though the Court may have a role to play, that role would be played at the margins. Because the Constitution has very little to say about preferential race-conscious admissions by state actors, this is an area that the judiciary should constitutionalize only at the boundaries and leave room for public policy makers to implement their preferred policy choices.

Prior to the Michigan Cases, and in light of the Court's inevitable incursion in the affirmative action controversy, the countermajoritarianists' traditional fears appeared true: in the face of a complex question of social policy, the Court would forge ahead and purport to resolve this difficult issue. (20) Yet the Court did no such thing. Part I uses the Legal Process School to justify the Court's restraint in the Michigan Cases. Part II provides an internal justification--based upon the Court's cases addressing the limits of state action on the basis of race--for the Court's decision in Grutter v. Bollinger to defer to admissions officers.

1. THE NEW LEGAL PROCESS, INSTITUTIONAL COMPETENCE AND THE FAMED DIFFICULTY

   The role of an unelected, unaccountable judiciary in democratic society has been the subject of much controversy. In recent memory, and as a direct response to the travails of the Warren Court, we have witnessed the resurgence of a strong, mostly negative reaction to the judicial branch and its perceived undemocratic transgressions. This recent charge has been led by Alexander Bickel, who coined the phrase "countermajoritarian difficulty" to encompass the seemingly troubling notion that a judiciary may interpose its constitutional reading against the people's current preferences, as evinced strictly by legislative enactments. "[W]hen the Supreme Court declares unconstitutional a legislative act or the action of an elected executive," Bickel wrote a generation ago, "it thwarts the will of representatives of the actual people of the here and now; it exercises control, not on behalf of the prevailing majority, but against it. This, without mystic overtones, is what actually happens.... [I]t is the reason the charge can be made that judicial review is undemocratic." (21)

   From the time of Bickel's influential contribution, constitutional scholars have spent countless hours attempting to diffuse the "countermajoritarian" dilemma. (22) They still do. (23) We question neither Bickel's conclusions nor the various responses and counterstories that followed in his wake. Instead, we take the teachings of the legal process school to heart, particularly its focus on the strength of institutional responsibilities. Put simply, the Court must not attempt to solve complex social problems in isolation. Instead, the Court must establish broad and forgiving constitutional boundaries, thus allowing the affected parties room for implementation. (24) This Part argues that the affirmative action debate falls squarely within this prescription.

   1. THE COUNTERMAJORITARIAN DIFFICULTY COMES TO SCHOOL: MAKING SENSE OF POLICY-MAKING

      In their monumental The Legal Process, Hart and Sacks warned that consensus on some questions of policy would be hard to achieve, if not altogether impossible. For this reason, and as an "alternative to disintegrating resort to violence," they counseled for the principle of institutional settlement, "the establishment of regularized and peaceable methods of decision." (25) The questions raised by the affirmative action debate fit squarely within this principle. In general, these questions boil down to a debate about what criteria admissions officials may take into account. (26) These are complex and ultimately "intractable" questions, to be sure. (27) They are also policy questions in their clearest form. Some of these arguments are made on the strength of our hopes for a better society, others on social utility and the weight of the costs and benefits at issue. These are not constitutional arguments. (28) A sampling of the many arguments deployed here provides ample illustration of this view. (29) The arguments come under three general rubrics.

      First, and while looking at the institutional level, critics have leveled the charge that affirmative action plans bring about "a cost in loss of efficiency and productivity."...