ON AFFIRMATIVE ACTION AND "TRULY INDIVIDUALIZED CONSIDERATION"[dagger]

Article excerpt

INTRODUCTION

In its most recent affirmative action decisions, the Supreme Court has declared that, in order for an admissions program to permissibly take race into account, it must give each applicant "truly individualized consideration.'" Each applicant, it has said, must be "evaluated as an individual."2 The rhetorical power of the opinion rests on the contrast between crude, mechanical sorting and an admissions process in which applicants are treated as the unique people they are, and in which each of them gets precisely the result that he deserves.

This rhetorical move is a cheat. Nobody ever gets exactly what he deserves. In any case, giving people what they deserve is not the business of an admissions office. The Michigan Law School process that the Court approved flunks this standard. So does Northwestern 's, which is even more individualized. So does any other possible admissions program. Truly individualized consideration is impossible.

The authors of this paper know something about the admissions process.3 Northwestern University School of Law has the most individualized law school admissions program in the country. We do not, however, delude ourselves that we are achieving perfect justice in our admissions decisions. We are making intelligent guesses, based on inevitably limited information, about the quality of our applicants. We are proud of the care with which we select our students. But we do not think that we are doing justice to the unique personalities of each applicant. No admissions process can do that. The Supreme Court has tried to make a vain dream into a constitutional requirement.

In Grate v. Bollinger, the Supreme Court invalidated the University of Michigan's use of affirmative action in its undergraduate admissions program because the program was excessively mechanistic in its use of race as a criterion, and thus failed adequately to treat applicants as individuals.4 In Grutier v. Bollinger, decided the same day, the Court upheld the same school's law school admissions program, because the law school "engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment."5 When a fixed value is assigned to race, as the undergraduate admissions program did, applicants are not treated as individuals and equal protection is violated. "[TJruly individualized consideration demands that race be used in a flexible, nonmechanical way."6

The individualized consideration requirement is an odd one. As Robert Post has observed, the requirement originated in Justice Powell's opinion in Regents of University of California v. Bakke.1 For Powell, individualized consideration was relevant because it helped the courts to determine whether an affirmative action program was serving the compelling interest in diversity, understood as a broad range of differences among students that could contribute to the richness of the educational environment. If rigid quotas were used, then race was being singled out as a special qualification, and the interest in educational diversity was not really being served.8 The Court that decided Grate and Grutter does not share Powell's view of the importance of educational diversity, since it is willing to allow universities to single out race as a special consideration in admissions in order to assemble a "critical mass of underrepresented minority students."9 It thus leaves the requirement severed from its rationale.

Here we are making a different point: the "highly individualized, holistic review of each applicant's file" that the Court insists on does not really treat people as individuals, rather than as members of categories. Some decisionmaking processes try to tease out the unique particularities of individuals. The clearest example is the discretionary exercise of mercy in the criminal justice system, preeminently with respect to the death penalty. …