For nearly five decades, affirmative action was sustained on the opinion of Justice Louis Powell. The key vote in Bakke thought that a diverse student body could improve learning on campus. Ultimately, Grutter adopted Justice Powell’s rationale, and held that universities have a compelling interest to pursue the educational benefits that flow from a diverse student body. That simple premise spawned an entire institution around “diversity.” Universities were forced to frame every decision they took in terms of using “diversity” as a way to help students learn. Of course, the real justification for affirmation action could be found in Justice Marshall’s Bakke opinion. He grounded racial preferences for black students (and not other races) in the centuries of oppression, slavery, segregation, and discrimination. Indeed, the “educational benefits” approach tokenized minority students as curiosities for white students to learn from. Advocates for affirmative action had to grit their teeth to stay in the good graces of old white folk like Justices Powell and O’Connor.
Fast forward to Students for Fair Admissions. The majority opinion did not formally reverse Grutter–though I agree with Justice Thomas that the precedent is all but overruled. Still, the “educational benefits” rationale seems to have been nullified. Harvard identify several specific educational benefits it was pursuing:
Respondents have fallen short of satisfying that burden. First, the interests they view as compelling cannot be subjected to meaningful judicial review. Harvard identifies the following educational benefits that it is pursuing: (1) “training future leaders in the public and private sectors”; (2) preparing graduates to “adapt to an increasingly pluralistic society”; (3) “better educating its students through diversity”; and (4) “producing new knowledge stemming from diverse outlooks.”
The Court easily found those rationales were not sufficient:
Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. At the outset, it is unclear how courts are supposed to measure any of these goals. How is a court to know whether leaders have been adequately “train[ed]”; whether the exchange of ideas is “robust”; or whether “new knowledge” is being developed?
Of course, the shortcomings of the “diversity rationale” were apparent in Fisher II, and Grutter. Nothing has changed. The voluminous trial record was irrelevant. But the earlier Courts, stocked with “brave” judges of “wisdom,” did not ask the hard questions. They blindly deferred to the universities.