The diversity lie.

• Author: Fitzpatrick, Brian T.
• Position: In college admissions

Last Term, the Supreme Court considered the racial preference plans used by the University of Michigan's undergraduate and law schools. (1) In its opinions upholding the law school program and striking down the undergraduate program, it resolved a fierce debate that had occupied this country for an entire generation: Are the educational benefits of a diverse student body so important that they constitute a compelling governmental interest? The Supreme Court ruled affirmatively. (2) Accordingly, the Court held that, so long as its admission's office is careful about how it does so, a university is free to discriminate on the basis of race in order to maintain racial diversity on campus.

Or did it? The Court acknowledged that its holding was contingent upon one determination that it did not have occasion to consider: whether the University of Michigan was being sincere when it told the Court that the reason it discriminated on the basis of race was to obtain the educational benefits of a diverse student body. As the Court recognized, a governmental interest cannot be compelling if it is not sincere. (3) Because the disappointed applicants who had sued the University had not challenged the University's sincerity in this regard. the Court "presumed" that the University was acting in "good faith." (4) The Court noted, however, that this would not have been the case if there had been "a showing to the contrary." (5)

What follows is a showing to the contrary. It is quite clear that the University of Michigan lied to the Supreme Court when it claimed it discriminates to obtain the educational benefits of diversity, and well near every other elite university lies when they say the same thing. Accordingly, the diversity fight is not over--it has only just begun.

In the Michigan cases, the Court considered two different admissions plans employed by the University. The plan employed by the University's undergraduate school, which ranks applicants on a 150-point scale, awards 20 points to applicants who are black, Hispanic, or Native American; white and Asian applicants get no such points. (By contrast, a perfect SAT score merits only 12 points on the 150-point scale.) The plan employed by the University's law school similarly grants preference to black, Hispanic, and Native American applicants over white and Asian applicants, but does so in a less conspicuous fashion. (6)

Generally, of course, racial discrimination of this sort runs afoul of the Fourteenth Amendment to the Constitution, which guarantees all citizens "equal protection of the laws." (7) The Supreme Court has, however, decided that not all racial discrimination is illegal. Rather, if a state has a really good reason to discriminate, and if it is careful in how it goes about discriminating, then the state is free to do so. The Supreme Court evaluates the constitutionality of racial discrimination under what it calls the "strict scrutiny" test. In order to pass this test, the state must advance a "compelling interest" that it seeks to serve by racial discrimination, and the discrimination must be "narrowly tailored" to serve that interest. (8) Prior to its opinions in the Michigan cases, the Supreme Court had found this test satisfied on only two occasions. The first was during World War II, when it held that the internment of Japanese-Americans, although racial discrimination, was nonetheless justified by the compelling interest of national security. (9) The second was during the 1980s, when the Court held that the compelling interest of remedying the long history of discrimination against blacks by the Alabama Sheriff's Department justified the use of a 50% black quota in hiring by that department. (10)

The University of Michigan told the Supreme Court that it needed to discriminate on the basis of race, but not for the sake of national security and not to remedy its own prior racial discrimination. Instead, the University told the Supreme Court that it discriminates in order to provide its students with the educational benefits of a diverse student body. In particular, the University claimed that it must discriminate on the basis of race in order to enroll "meaningful numbers" or a "critical mass" of black, Hispanic, and Native American students. (11) The University argued that meaningful representation of these groups yields educational benefits insofar as it increases the number of merchants in the campus marketplace of ideas: If these groups were not included in meaningful numbers on campus, the University says, valuable and unique perspectives would be lost from classrooms, dormitories, and quadrangles. (12) As the law school argued to the Supreme Court, "'classroom discussion is livelier, more spirited, and simply more enlightening and interesting' when the students have 'the greatest possible variety of backgrounds.'" (13) A critical mass of these students serves to "introduce[] students to unfamiliar experiences and perspectives." (14)

The Supreme Court agreed with the University. In a rather surprising turn in its Equal Protection jurisprudence, the Court held that diversity is a compelling interest because: "The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer." (15) The Court failed to cite any other case in which it granted similar deference to an accused racial discriminator. Certainly, for example, the Kansas Board of Education in Brown v. Board of Education (16) was not granted deference to its "educational judgment" that whites and blacks receive better educations in separate schools.

The Court acknowledged, however, a potentially significant question it did not have occasion to consider: whether the University of Michigan was being sincere when it told the Court that the reason it discriminated on the basis of race was to obtain the educational benefits of a diverse student body. (17) The Court further noted that "strict scrutiny is designed to provide a framework for carefully examining the importance and sincerity of the reasons advanced by the governmental decision-maker for the use of race...." (18) Indeed, the Court has repeatedly held that, when a litigant comes before it and offers a justification for race or gender discrimination, the justification must be sincere. That is, the justification must be the actual reason the state decided to discriminate, not some post-hoc, litigation-driven rationalization.

For example, in United States v. Virginia, (19) the Court declared unconstitutional the Virginia Military Institute's ("VMI") admissions policy because it discriminated on the basis of gender by limiting enrollment to men. In defense of its single-sex policy, VMI advanced educational-benefits arguments not unlike Michigan's; it asserted that "[s]ingle sex education affords pedagogical benefits," and that "diversity among public educational institutions [serves] the public good. (20) Justice Ginsburg s opinion for the Court rejected these justifications for lack of sincerity: "Virginia has not shown that VMI was established, or has been maintained, with a view to...