Intuition or proof: the social science justification for the diversity rationale in Grutter v. Bollinger and Gratz v. Bollinger.

• Author: Pidot, Justin

INTRODUCTION I. THE MEANING OF DIVERSITY A. Diversity Defined B. Numeric Diversity or Diversity Experience II. SOCIAL SCIENCE EVIDENCE ABOUT THE DIVERSITY RATIONALE PRESENTED TO THE COURTS A. Correlating Diversity with Positive Outcomes 1. The Gurin Report a. Gurin's methodology b. Gurin's outcomes 2. Other studies linking diversity experience to positive outcomes 3. Linking numeric diversity to diversity experiences 4. The Rothman study B. Experimental Data Correlating Diversity with Complex Thinking C. Perceptions of the Importance of Diversity 1. Favorable impressions of diversity at law school 2. Favorable impressions of diversity at undergraduate institutions. 3. Negative impressions of diversity D. Conclusion on the Data III. THE USE OF EVIDENCE ABOUT THE DIVERSITY RATIONALE IN THE BRIEFS FILED DURING THE UNIVERSITY OF MICHIGAN CASES IV. THE COURTS TACKLE THE SCIENCE BEHIND THE DIVERSITY RATIONALE CONCLUSION INTRODUCTION

In 1978, Justice Powell famously found that racial diversity can justify race-conscious admissions systems. (1) However, Justice Powell wrote alone, leaving the diversity rationale in a state of limbo for nearly three decades. In 2003, a slim majority of the Supreme Court agreed with Justice Powell, finding that an educational institution had a compelling interest in a diverse student body. (2)

To buttress the idea that "educational benefits ... flow from an ethnically diverse student body," (3) Justice Powell included a quote from a former Princeton graduate observing: "People do not learn very much when they are surrounded only by the likes of themselves." (4) With this anecdotal support, the diversity rationale gained recognition in the Supreme Court.

Unlike many cognizable government interests, the idea that "[p]eople do not learn very much when they are surrounded only by the likes of themselves" is an inherently empirical claim. It does not invoke the broad language of rights, but rather, a supposed fact about the world: that educational outcomes are improved by the presence of diversity. Despite this, Bakke spawned little empirical work on the effects of racial diversity in higher education. (5) Not until the Fifth Circuit rejected the diversity rationale in Hopwood v. Texas (6) did the academic establishment mount a research campaign to demonstrate that racial diversity did indeed create educational benefits.

By the time of the University of Michigan cases, Grutter v. Bollinger and Gratz v. Bollinger, affirmative action advocates had attached their hopes to a long line of cognitive psychology research finding an association between learning and the experience of novelty. (7) Essentially, psychologists had noted that when people interact in unfamiliar environments, with unfamiliar people, they more fully engage their cognitive faculties; people learn differently when they leave their comfort zones. (8)

In the two University of Michigan cases, proponents of affirmative action had their opportunity to present their research to the courts. The University's case relied most heavily on a lengthy expert report filed by Michigan Professor of Psychology and Women's Studies Patricia Gurin. (9) In addition, it cited an array of other studies bolstering the Gurin Report's claim that racial and ethnic diversity (10) leads to tangible educational benefits. In response, the National Association of Scholars (NAS) spearheaded an effort by plaintiffs' amici critiquing the methodology of the Gurin Report and presenting its own social science evidence to undercut the diversity rationale. (11)

But what did this slew of social science evidence really demonstrate? Did Gurin and other social scientists prove that racial diversity leads to positive student outcomes? Or, rather, does the evidence only serve to confirm the preexisting intuitions of those committed to affirmative action?

This Note examines some of the data placed before the Court and identifies its virtues and flaws. Clearly, much of the evidence provides powerful confirmation for those who already believe that affirmative action yields educational benefits. However, it may have less to offer affirmative action opponents in terms of proof. Further, it appears curious that the courts relied on this often thin social science to sustain an admissions policy under strict scrutiny.

The tension underlying the University of Michigan cases resembles the controversy that swept both the nation and the legal academy following Brown v. Board of Education. (12) In reaching its decision in Brown, the Supreme Court cited social science evidence that segregated education hurts black children. (13) While Brown may have inevitably triggered a firestorm of opposition in the South, (14) the Court's use of social science sparked its own heated debate, even amongst those who supported desegregation. (15) Today, many remain uncomfortable with the Court's use of social science evidence in Brown. (16) Nonetheless, Brown has become a paragon of jurisprudence, widely heralded as a judicial triumph. (17)

Part I of this Note looks at two preliminary matters. First, it examines two ways that diversity has been measured in higher education. Second, it discusses the distinction often made in the literature between numeric diversity and diversity experiences.

Part II then turns to the social science itself. The most in-depth discussion focuses on the Gurin Report and its critiques. However, Part II also examines several other studies cited by the parties and amici and attempts to suggest what, in aggregate, they demonstrate.

Part III examines the way that both the parties and amici utilized social science. It notes that in much of their briefing, plaintiffs refrained from an all out attack on the social science presented by the University, instead relying on legal argumentation. However, the NAS consistently mounted a strenuous attack against the social science data.

Last, in Part IV, this Note examines the courts themselves. Most strikingly, this Note concludes that while many of the decisions in the University of Michigan cases incorporated social science to either confirm or refute the diversity rationale, no court provided analysis of these data, or explained why it adopted its particular view of the evidence. The discussion of the Supreme Court decisions focuses primarily on Grutter because it contains the analysis of the diversity rationale. In Gratz, the Court relied on Grutter's conclusion that diversity is a compelling state interest. However, the Gratz Court invalidated the University of Michigan's undergraduate admissions policy, finding that it emphasized minority status too much and thus failed to meet the narrow tailoring requirement of strict scrutiny.

In Grutter, the U.S. Supreme Court ensconced the diversity rationale into the canon of strict scrutiny, at least for the next twenty-five years. (18) This decision, which clearly passed judgment on the link between diversity and educational benefits, rests uncomfortably on the social science presented to the Court. In the end, one wonders whether the Grutter Court, like Justice Powell's opinion, truly relied on science, or the intuition that underlies the statement that "[p]eople do not learn very much when they are surrounded only by the likes of themselves."

1. THE MEANING OF DIVERSITY

   1. Diversity Defined

      The literature quantifies the racial diversity of a student body in two distinct ways. (19) Most studies base numeric diversity on the percentage enrollment of students of color. (20) Others rely on a heterogeneity index that takes into account the varying racial and ethnic groups that exist in a student body. (21) This basic distinction has profound implications for empirical analysis. For instance, under the first method, a school with a student body 25% black and 75% white would have the same amount of "diversity" as a school with a student body 10% black, 5% Asian American, 5% Latina/o, 5% Native American, and 75% white. Under the second methodology, such schools would have dramatically different amounts of "diversity."

      These two methodologies also have different implications. The first, used in much of the literature available to the courts in the University of Michigan cases, suggests that the diversity rationale predominantly concerns itself with the experience of white students interacting with the unfamiliar. For instance, for matriculating first-year students at the University of Michigan, 90% of white students had lived in racially and ethnically segregated neighborhoods and attended segregated schools growing up. However, only 50% of black students grew up in similarly segregated situations. (22)

      Despite this disparate experience with residential integration, one expert witness for the University of Michigan, Professor of History Thomas Sugrue, hypothesizes that neither black nor white matriculating students have been substantially exposed to one another. "Whites, particularly youth, are unlikely to have any sustained or serious contact with African Americans, Hispanics, or Native Americans." (23) Black youth, on the other hand, are "unlikely to have any sustained contact with whites outside of their workplaces, with the exception of authority figures such as teachers, shopkeepers, and police officers." (24) Even in Sugrue's assessment, young blacks have been exposed to whites in some contexts. While Sugrue emphasizes the similar experiences of black and white youth with respect to each other, the two groups may be even more similar with respect to their exposure to other underrepresented minorities, such as Latinos or Native Americans. (25)

      Since many white students have little experience with historically disadvantaged (and currently underrepresented) minorities, exposure to any student of color could provide equivalent benefit. However, many more students of color have grown up interacting with whites, at least in some capacity. The unitary measurement of diversity masks the...