Liberals have generally cheered the Supreme Court's decision in Grutter v. Bollinger (1) as validating the continued use of affirmative action in the struggle against racial injustice. (2) But the Supreme Court's modern race cases rest on a misunderstanding of the nature of contemporary racial discrimination. From Brown, (3) to Bakke, (4) to Grutter, (5) the Court has advanced a color-blind conception of racial equality that treats race-conscious affirmative action as constitutionally suspect, because it deviates from an aspirational baseline of race neutrality that lies at the core of the equal protection clause. However, race neutrality is a hopelessly artificial concept in a Nation like ours, that continues to make race an operative factor in the allocation of nearly all significant societal resources. Rather, it is colorblind race neutrality that should be viewed as constitutionally suspect, because that is what now constitutes the culture's preferred form of racial discrimination. Contemporary "race neutrality" is simply a modern descendent of the more traditional forms of invidious discrimination that have been practiced in the United States since the Nation was founded. And the Supreme Court's current preference for race-neutrality over race-consciousness is a modern descendent of the Court's own tradition of complicity in racial discrimination.
Part II of this article describes the Supreme Court's current conception of racial discrimination, emphasizing the manner in which the Court has confused the concept of race neutrality with the concept of racial equality. Part III argues that the concept of race neutrality is constitutionally suspect, because it has now become a tool for discriminating against racial minorities. Part IV argues that the only way in which we are ever likely to remedy the systemic discrimination that continues to permeate American culture is by pursuing the precise racial balance goals that the Supreme Court has deemed to be unconstitutional. Part V concludes that the Supreme Court is once again impeding the Nation's progress toward racial equality, as it has done so many times in the past.
II. THE COURT'S CONCEPTION OF EQUALITY
The Supreme Court views racial equality as if it were largely synonymous with race neutrality. As a result, the Court treats all racial classifications as constitutionally suspect, and subjects them to strict scrutiny under the equal protection clause, whether they are invidious or benign. (6) The Court's preference for prospective neutrality has the effect of invalidating most uses of race-conscious affirmative action, which in turn makes it difficult to eliminate the existing inequalities that have been produced by centuries of prior discrimination. (7)
A. RACE NEUTRALITY
The Supreme Court's fondness for race neutrality is traceable to Brown v. Board of Education. (8) Brown invalidated the race-conscious, separate-but-equal regime of Plessy v. Ferguson, (9) holding that, in our racially stratified society, separate was "inherently unequal." (10) Brown, therefore, treated race-conscious governmental classifications as intrinsically objectionable, even if race was used in ways that were hypothetically "equal." But Brown also generated a logical dilemma. The Nation's long history of official discrimination left a legacy of existing inequalities that could not be remedied merely through the use of prospective race neutrality. Indeed, the ingrained and often unconscious racial attitudes that caused Brown to characterize racial segregation as inherently unequal meant that racial minorities could never make up for the considerable head start that whites had given themselves in the race for economic, political and social resources--unless whites were forced to slow down long enough for racial minorities to catch up. Therefore, the race-neutral society that Brown envisioned could come into existence only through use of the race-conscious means that Brown found objectionable. Brown and its progeny ultimately sought to resolve this dilemma by permitting the use of race-conscious measures only where necessary to remedy past or present constitutional violations. (11) However, Brown was unclear about precisely why race consciousness offended the Constitution. (12)
The Court's reason for treating race consciousness as constitutionally suspect was fleshed out by Justice Powell's opinion in Regents of the University of California v. Bakke. (13) Bakke stressed that the problem with racial classifications was that they stereotyped people as members of particular racial groups, rather than treating people as individuals. (14) Moreover, because that was true of all racial classifications--whether invidious or benign--all racial classification should be subject to strict scrutiny under the equal protection clause. (15) Affirmative action programs could not therefore use "racial quotas" to achieve "racial balance," because that would subordinate individual characteristics to group membership in a way that violated the tenets of liberalism on which the equal protection clause rested. (16) Once again, however, the Court's understanding of racial discrimination simply reposed the Brown dilemma. Because someone's race is an important component of his or her individual identity, individualized consideration must necessarily entail some degree of race-conscious consideration. Justice Powell sought to resolve the dilemma by permitting the use of race as a "plus" factor in what was otherwise an individualized assessment of merit. But that could only be done as part of a program that was narrowly tailored to advance a compelling state interest, thereby satisfying the demands of strict scrutiny. (17) Although the Bakke "holding" consisted largely of the views of Justice Powell, a five-Justice majority of the Supreme Court endorsed those views in Grutter v. Bollinger. (18)
Grutter reaffirmed the conclusion that strict scrutiny applied to benign as well as invidious racial classifications, (19) but for the first time since its infamous decision in Korematsu v. United States, (20) the Supreme Court upheld a racial classification after strict equal protection scrutiny. (21) The Grutter holding was largely unexpected, because several lower courts had invalidated similar affirmative action programs, (22) and because the Court's 1995 decision in Adarand Constructors v. Pena, (23) made it look as if strict scrutiny would be fatal for affirmative action. Although the Adarand Court expressly held open the possibility that some affirmative action programs might be adequate to survive strict scrutiny, (24) the program at issue in Adarand itself was so mild, that the Court's assurance appeared more rhetorical than real. (25) Justice O'Connor's majority opinion in Adarand also implied that racial affirmative action would be constitutionally impermissible if race-neutral alternatives had not first been proved inadequate, (26) but her majority opinion in Grutter curiously held that the Constitution did not require all race-neutral alternatives to be exhausted. (27) Nevertheless, Grutter continued the Supreme Court preference for race-neutral over race-conscious classifications, by subjecting only race-conscious classifications to strict scrutiny. (28)
Grutter reaffirmed the Bakke view that diversity could constitute a compelling state interest in an educational context, (29) but it also strongly endorsed Bakke's distaste for racial quotas. In upholding the racial affirmative action program used by the University of Michigan law school, the Grutter Court went to great pains to stress that the program was valid because it merely used race as a "plus" factor in "a highly individualized, holistic review of each applicant's file," (30) and did not entail the use of racial quotas that "would amount to outright racial balancing, which is patently unconstitutional." (31) The Court hammered the point home on the same day by invalidating, in Gratz v. Bollinger, (32) the separate racial affirmative action program used by the University of Michigan undergraduate college. It found that the undergraduate program's automatic award of a fixed number of points to minority applicants denied "individualized consideration" to each applicant, and had "the effect of making 'the factor of race ... decisive' for virtually every minimally qualified underrepresented minority applicant." (33) Although it is likely that future affirmative action programs will now be structured to emulate the program upheld in Grutter, the Court's insistence on holistic consideration of admissions files may increase the administrative burden imposed on admissions offices enough to reduce the amount of affirmative action that schools can afford to undertake.
The precedential value of Grutter is uncertain for at least two reasons. First, the case may or may not be limited to the educational context in which it was decided. Justice Scalia's contrary suggestion notwithstanding, (34) diversity may not be recognized as compelling in other contexts such as employment, where the goal is productivity rather than the exchange of intellectual ideas and perspectives. Second, because Justice O'Connor has become the swing vote on the issue of affirmative action, the precedential value of Grutter may be limited by both her personal policy preferences and her tenure on the Court. If a more conservative Justice were to replace Justice O'Connor, Grutter might be narrowly interpreted or even overruled. If the case were narrowly interpreted, Justice Kennedy's position in Grutter might become controlling, and the law of affirmative action could once again revert to its post-Adarand status. Affirmative action would remain theoretically permissible, but in actuality, no program would likely be found to survive strict scrutiny. (35) However, it may also be true that considerations of efficiency and collegiality will make the Court reluctant to revisit the racial affirmative action issue in the immediate future. Despite political changes on the Court, it took 19 years for Planned Parenthood of Southeastern Pennsylvania v. Casey (36) to supplant Roe v. Wade (37) with respect to the issue of abortion, and 17 years for Lawrence v. Texas (38) to overrule Bowers v. Hardwick (39) with respect to the issue of homosexual sodomy. (40) Perhaps Grutter will remain the law through inertia for a similar period of time.
Prior to Grutter and Gratz, the Supreme Court politics of affirmative action was fairly simple to ascertain. A five Justice conservative bloc--consisting of Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy and Thomas--virtually always voted against affirmative action. A four-Justice liberal bloc--consisting of Justices Stevens, Souter, Ginsburg and Breyer--virtually always voted in favor of affirmative action. (41) In the wake of Grutter and Gratz, things have become a bit more complicated. Justice O'Connor voted with the liberal bloc to uphold the affirmative action plan in Grutter, 5-4, (42) and Justices O'Connor and Breyer voted with the conservative bloc to invalidate the affirmative action plan in Gratz, 6-3. (43) There now seem to be seven votes to reject the proposition advanced by the Fifth Circuit in Hopwood v. Texas, (44) that race can never be used in an affirmative action plan, even to advance educational diversity. Because only Justices Scalia and Thomas would now support such an approach, (45) some form of racial affirmative action is likely to remain at least theoretically constitutional.
The diversity reasoning of Grutter could also undermine other lower court decisions. For example, Grutter might now authorize the use of minority scholarships, such as those invalidated by the Fourth Circuit in Podberesky v. Kirwin, (46) as a means of getting minority students actually to attend the schools that admitted them in the hope of increasing diversity. Similarly, Grutter might now authorize the use of race-conscious teacher layoffs, such as those invalidated in Taxman v. Piscataway Township Board of Education, (47) as a means of promoting faculty diversity in the exchange of ideas to which students are exposed. Grutter might even authorize efforts to increase diversity in the pool of doctors or lawyers available to serve minority communities, even though such an interest was expressly rejected as not compelling by Justice Powell in Bakke. (48) On the present Court, it appears as if Justice O'Connor will have the decisive vote in determining how such policy issues will be resolved.
B. SOCIETAL DISCRIMINATION
Liberal celebrations notwithstanding, Justice O'Connor's majority opinion in Grutter seems likely to prolong rather than ameliorate the problem of racial discrimination. It holds that affirmative action programs must be narrowly tailored in order to …