III. The Diversity Rationale in Affirmative Action Case Law

      The continued viability or ultimate demise of the diversity rationale in higher education admissions obviously has the potential to exert a significant effect on the representation of different races, cultures, and religions in the student populations of medical schools. The Supreme Court has interpreted the Equal Protection Clause to forbid state-funded [p690] colleges and universities from considering race in admissions unless the admissions policy is narrowly tailored and promotes a compelling governmental interest. In the late 1970s, the Supreme Court began to entertain the idea that racial and ethnic diversity in higher education serves important educational goals and can sometimes justify race-conscious admissions policies.

      In its famous 1978 decision in Bakke, the Court considered whether the University of California at Davis's medical school admissions process violated the equal protection clause of the United States Constitution and Title VI of the Federal Civil Rights Act of 1964. Three of the Justices believed that the Davis program ran afoul of Title VI. Four different Justices concluded that the Davis program was permissible under both the equal protection clause and Title VI. Justice Powell, who cast the deciding vote, believed that the program was invalid under the Equal Protection clause and therefore rejected admissions quotas and set-asides used by the University of California. Nevertheless, he concluded that some affirmative action admissions programs could survive constitutional scrutiny by considering race as one of several factors in making [p691] individualized admissions decisions.

      Justice Powell's separate opinion offered a different rationale in support of certain affirmative action admissions policies, discussing with approval the university's goal of attaining a diverse student body. The opinion concluded that diversity in the classroom could enhance education by introducing students to the novel opinions and experiences of their classmates. In favorably describing the admissions program at Harvard College, Justice Powell explained that all students benefit from learning in a diverse class setting:

       Contemporary conditions in the United States mean that if Harvard College is to continue to offer a first-rate education to its students, minority representation in the undergraduate body cannot be ignored by the Committee on Admissions. . . . [T]he race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. The quality of the educational experience of all the students . . . depends in part on these differences in the background and outlook that students bring with them.

      Nevertheless, the opinion provided only limited endorsement for the use of racial preferences in higher education admissions, rejecting Davis's procedure of setting aside a specific number of places for racial minorities and preferring Harvard's holistic approach to evaluating candidates, in [p692] which race may serve as a “plus” for an otherwise qualified candidate. In response to Powell's opinion, many institutions of higher education attempted to implement a holistic approach to admissions, including consideration of race.

      Interestingly, the Powell opinion briefly explored the operation of diversity specifically in the medical school context, although it also suggested that there may be “greater force to these views at the undergraduate level than in a medical school where the training is centered primarily on professional competency.” Justice Powell explained that, because physicians treat a heterogeneous population of patients, otherwise qualified medical students with diverse racial, ethnic, geographic, or other backgrounds may contribute to medical school ideas and viewpoints that enrich the educational experience for all students, making them better able to “render with understanding their vital service to humanity.” Most of the Powell opinion, however, considered the constitutionality of affirmative action in higher education as a general matter, suggesting that classroom diversity as a compelling governmental interest carries the same force in all higher education contexts.

      Finally, Justice Powell also evaluated the university's argument that its special admissions program would improve the delivery of health services to underserved communities. Although he acknowledged that a State's interest in facilitating health care to its citizens may sometimes be sufficiently compelling to justify the use of racial classifications, he noted that the record simply did not support the university's claim that giving a preference to candidates of particular racial or ethnic groups would [p693] advance this goal. Today, this argument in support of race conscious admissions rests on a far more developed record. Recent research evaluating the preferences of URM physicians to provide care to underserved populations now strongly supports the argument that minority physicians are more likely to choose to provide care to minority patients and that these patients prefer to receive care from physicians of the same race or ethnicity.

      In two federal decisions following Bakke, the Fifth and Ninth Circuits disagreed about whether to embrace Justice Powell's reasoning and the Supreme Court ultimately addressed the resulting circuit split in the Michigan litigation. In Gratz and Grutter, white applicants who were denied admission to the University of Michigan's undergraduate and law programs respectively challenged the university's use of racial classifications in admissions, claiming that the policies violated both the Equal Protection Clause of the Fourteenth Amendment as well as Title VI of the Civil Rights Act of 1964. The University of Michigan's law school admissions program, as described in Grutter, involved individual evaluation of each applicant in order to admit a class with a “critical mass” of students with diverse viewpoints and experiences and of diverse race and ethnicity.

      In Grutter, a bare majority of the Court embraced the concept of classroom diversity as a justification for a narrowly tailored race conscious admissions program and provided some additional clarity about the [p694] diversity rationale. Justice O'Connor, writing the opinion for a five-justice majority, made several separate points about the operation of diversity within the university classroom, two of which deserve emphasis here. Not surprisingly, she confined her consideration of the value of the classroom diversity to the law school context. First, Justice O'Connor endorsed Justice Powell's views about the value of classroom diversity as a compelling governmental interest, noting that a mix of students with varying backgrounds and experiences promotes stimulating intellectual discussion and exchange of viewpoints, and shared understanding of different races and cultures. Second, she observed that graduation from an elite law school enhances the graduate's chances of active participation in public life and in positions of power in government, Congress, and judgeships. Essentially, as commentators have noted, diversity in the classroom serves two distinct purposes. From an interpersonal relations perspective, the interaction of students of different races promotes interracial understanding, and from a utilitarian perspective, it creates a graduating body of students who are prepared to succeed in an increasingly diverse global economy and society.

      After concluding that classroom diversity constitutes a compelling state interest in legal education, Justice O'Connor next considered whether the law school's admissions program was narrowly tailored to promote that interest. As Justice O'Connor explained, the law school used a highly [p695] individualized evaluation of each applicant, considered race as one of many factors that might promote diversity, considered minority applicants in competition with other applicants, and sought merely to achieve a “critical mass” of racially diverse students but did not have a specific percentage as its goal. For these reasons, Justice O'Connor and the majority concluded that the program appropriately considered race and ethnicity and was narrowly tailored to promote the goal of achieving a diverse classroom experience for its students. Although Justice Kennedy dissented in the case, arguing that the University of Michigan School of Law's particular admissions scheme did not satisfy the narrow tailoring requirement, he agreed with the idea that a diversity rationale could serve as a basis for race-conscious admissions policies.

      In its most recent term, the Court once again addressed the question of racial diversity in education, this time in the context of public elementary and secondary schools. In Parents v. Seattle School District 1, Chief Justice Roberts, writing for a divided Court, concluded that school district plans that assign students to schools based on race violate the Equal Protection Clause, despite the fact that the school assignment plans were [p696] attempting to promote racial integration. Interestingly, Justice Kennedy, concurring in part and concurring in the judgment, argued that the plurality opinion inappropriately dismissed the government's legitimate interest in creating a diverse student body, suggesting that school districts could “adopt general policies to encourage a diverse student body . . . without treating each student in a different fashion solely on the basis of systematic, individual typing by race.” Almost immediately after the decision was announced, parent groups resurrected challenges to similar local school district policies. School assignment plans around the country designed to promote de facto desegregation now face renewed legal scrutiny. In the wake of these recent decisions, it is difficult to predict how the newly constituted Court would rule on the diversity rationale in the higher education context, were they to revisit the issue.

      The majority opinion in the school assignment cases, in distinguishing Grutter, treats the public school and higher education contexts differently, focusing primarily on the use of race for remedial purposes in public education but allowing for a separate consideration of the value of diversity in the higher education context. Moreover, the race-conscious admissions program in Grutter evaluated each student individually and holistically rather than simply trying to balance the presence ofdifferent minority groups within the school. Nevertheless, it is troubling that the five-justice plurality refused to acknowledge the very different purposes that consideration of race promotes in these modern districting plans compared with the old use of race to segregate schools in the years before Brown v. Board of Education was decided. Whatever the eventual fallout, the decision in the school assignment cases signals a significant adverse shift in racial desegregation policy and a continued erosion of support for [p697] integration in this country which will undoubtedly have a negative impact on higher education as well.