Tacking left: a radical critique of Grutter.

• Author: Roithmayr, Daria
• Position: From Brown to Bakke to Grutter: Constitutionalizing and Defining Racial Equality

[R]ace conscious policies must be limited in time ... We expect that twenty-five years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Justice O'Connor in Grutter v. Bollinger (1)

INTRODUCTION

In Grutter v. Bollinger, the Supreme Court announced its expectation that twenty-five years from now, U.S. educational institutions will no longer need to use racial conscious affirmative action in admissions to admit a racially diverse class. Of course, time will tell whether Justice O'Connor's expectation will be given the force of law or regarded as dicta. (2) But dicta or not, law schools are highly unlikely in the next twenty-five years to be able to admit diverse classes without using race-conscious affirmative action. Racial inequality at all levels--education, housing, income and wealth--has become a remarkably stable feature of racial hierarchy in the U.S. (3)

Certainly with regard to conventional measures of merit for law school admission (i.e., grades and standardized test scores), racial disparities are as pervasive as they were when the Court decided Bakke twenty-five years ago. For the 2002-03 academic year, the median LSAT score for black applicants was 142.2, compared to a median white score of 153.9. (4) Thus, at present, black scores are about 19 percent lower than white scores. The differences at the top end of the scale are far more dramatic: blacks make up less than i percent of those scoring 165 or above on the LSAT. (5) By most accounts, the gap has persisted for the last twenty-five years, despite improvements in the economy and a growing black middle-class. (6) Moreover, the racial gap in LSAT scores may now be increasing. Over the past five years, the racial scoring gap has increased by 0.9 points, or 1.5 percent]

For the last decade, the issue of affirmative action in higher education has bedeviled those of us on the left. Even the most radical of critical race theorists acknowledges that, in connection with Grutter, we needed to defend small-scale diversity-oriented programs in order to hold the line on affirmative action rollbacks. As a symbolic matter, affirmative action represented the most visible form of commitment to dismantling racial hierarchy. And, in the wake of Hopwood and Proposition 209, radical scholars had to acknowledge the very real possibility that an increasingly conservative Supreme Court would cut back even further on the vitality of race-conscious preferences. Holding the line in Grutter was of the essence in the battle with conservatives over affirmative action.

At the same time, as a practical matter, we recognized the limits of diversity-based affirmative action. The small-scale affirmative action programs adopted by law schools produced few material gains for most people in communities of color. We knew that in most elite schools, diversity programs admit relatively small numbers of students. (8) We acknowledged that diversity-oriented programs concealed the racial bias of ostensibly race-neutral standards. (9) And from experience within our own institutions, we were painfully aware that the diversity rationale permitted institutions to claim that they were "for affirmative action," without having to make a commitment to eliminating the legacy of past discrimination. (10)

Ultimately, in the period leading up to the Court's decision in Grutter, many of us committed ourselves and our scholarship (despite our ambivalence) to the very pragmatic task of defending diversity-based affirmative action. But now that the Court has approved some form of race-conscious affirmative action, the time may have come for the left to tack left again: to strongly reassert the far more expansive view of racial equality, and to argue for a much larger-scale, much more robust form of affirmative action to accompany that view.

In that spirit, this article advances three central critiques of the Court's decision in Grutter--one pragmatic, one utopian and the last deeply cynical. First, I will argue that Justice O'Connor's timetable for eliminating race-conscious affirmative action is unrealistic. Racial inequality in conventional measures of merit will persist into the foreseeable future, because this inequality is part of a much larger dynamic process that produces persistent racial inequality in many areas.

I describe this process using what I have come to call the "lock-in" model of racial inequality. (11) The lock-in model compares persistent racial disparity to persistent monopoly power that continues long after the original anti-competitive conduct has ceased. Just as a monopoly can become institutionally self-reinforcing over time, so too can racial monopoly reproduce itself over time via institutional processes.

This Essay proposes that disparities in performance on admissions criteria persist because whites have created a self-reinforcing monopoly on those educational resources that are needed to achieve high GPAs and standardized test scores. If so, racial disparities likely will continue, as will the need for some form of affirmative action, until that monopoly is dismantled,

Second, I will argue that diversity-based affirmative action does little to address what may well be locked-in disparities. Experts insist that, to dismantle the self-reinforcing cycle, massive affirmative action is needed. Unfortunately, Grutter is the last in a long line of cases that forecloses the very sort of large-scale affirmative action programs in education that could assist in creating change.

Third, I will argue that, although Grutter provides little material benefit for communities of color, the decision materially and symbolically privileges white interests. The opinion prioritizes the interests of white students in breaking down their stereotypes about minorities and in adding diverse perspectives to classroom conversations. In addition, the Court's opinion allows institutions to conceal the bias of conventional admissions standards. Last but not least, the Court's opinion constitutionally protects elite meritocracy, in a way that further privileges white interests.

Part I provides a brief primer on the self-reinforcing lock-in model of inequality, which I have developed in previous work. Part II applies the lock-in model to the problem of persistent racial disparities in education. This section focuses on the broad self-reinforcing dynamic process that links a neighborhood's assets to those of families within the neighborhood. Drawing from the insights developed from the lock-in model, Part III fully fleshes out the three critiques of Grutter described above.

1. A PRIMER ON THE LOCK-IN MODEL OF INEQUALITY

   In previous work, I have developed the lock-in model of racial inequality to explain the dynamics of racial inequality. (12) Drawing from recent work in economics and antitrust, the lock-in model is designed to explain how monopolies can become self-reinforcing over time to become a permanent part of the economic landscape. More specifically, the model demonstrates how monopolies can persist even in the absence of intentional anti-competitive conduct.

   Locked-in monopolies can be produced in a variety of settings. In certain markets that are characterized by "increasing returns," a firm can acquire an early competitive advantage, which then becomes self-reinforcing over time. For example, some commentators argue that Microsoft engaged in exclusive contracts with suppliers and in other conduct designed to prevent the distribution of competitor technology. (13) This anti-competitive conduct created (and reinforced) a self-reinforcing advantage that linked software developers and consumers. Windows' popularity induced more software authors to write software, which in turn triggered an increase in consumers. The increase in consumers thereby induced even more software authors to write for Windows, and so on. (51) Thus, Microsoft's advantage became locked-in because of the positive feedback loop that permitted the advantage to reproduce itself.

   Beyond increasing returns markets, a market might become locked-in when consumers face high costs to switch ("switching costs") from the market incumbent to a more innovative competitor. (15) If consumers cannot make the switch easily, then their unwillingness to move may lock in the incumbent's early advantage. For example, when consumers choose to switch from a VCR to a DVD player, they must pay not only the cost of the new product but also the cost to recreate their library in DVD format and the cost of lost access to their video network--the group of friends, family, video stores and other sources of videos who may not yet have made the switch. (16) These additional switching costs may prolong the initial competitive advantage that the . VCR technology has over the more innovative DVD technology. (17)

   Finally, "path-dependent" markets will also produce locked-in monopolies. In path dependent markets, small historical events that happen early in the formation of the industry may explain a great deal about subsequent market outcomes. (19) In the most oft-cited example, Paul David asserts that a typing contest held in 1874 ultimately produced the monopoly position of a particular keyboard arrangement in the typewriter market. (20) Because the winning typist had used a QWERTY keyboard, the victory produced a small competitive lead over other keyboards. (21)

   This "early-mover" advantage then became institutionally self-reinforcing because of the "network" relationship between typists, employers and keyboards. Typists wanted to train on the most popular keyboard, and, in turn, employers wanted to adopt the keyboard on which most typists were trained. (22) Each increase in typists produced an increase in employers who adopted the keyboard, thereby triggering another increase in typists, and so on. (23) Ultimately, QWERTY came to dominate the field based on the self-reinforcing effects of...