Affirmative action is one of the most controversial topics for constitutional scholars, perhaps for American society at large as well. Education seems to be the favorite context for such discussions. The debate over whether it should be constitutionally permissible to consider race when allocating public benefits and burdens has overwhelmingly concentrated on the admissions policies of competitive public institutions, mainly universities and colleges, and to a lesser extent elementary and secondary schools.1 On May 14, 2002, a bitterly divided Sixth Circuit, sitting en banc, upheld the University of Michigan Law School's race-conscious admissions policy aimed at furthering diversity in the student body,2 thus renewing the affirmative action debate. On December 2, 2002, the United States Supreme Court granted certiorari to review the Sixth Circuit's decision.3 Moreover, in a rare procedural move, the Court granted review of a District Court decision on the constitutionality of the University of Michigan's undergraduate admissions program still pending before the Sixth Circuit.4 Oral argument for both these cases took place on April 1, 2003 and the Supreme Court's decisions are expected by the end of the Court's 2002-2003 term.
Despite the abundance and diversity of views expressed in the literature, the discussion on affirmative action has three characteristics that render it constitutionally inconclusive and even misleading. First, the doctrinal analysis has overwhelmingly concentrated on the formal question of the applicable standard of review, instead of exploring the functional question of the circumstances under which race-conscious policies pass constitutional muster.5 Second, when the courts do proceed past the applicable standard of review, several arguments that are being set forth actually focus on whether affirmative action reflects a wise public policy instead of its constitutionality. Third, because the values of the proponents and opponents of affirmative action frequently conflict, the whole discussion is extremely polarized.6 While opponents argue that any consideration of race as a goal is inherently odious, proponents insist that this exact consideration is necessary to eliminate the system of racial oppression that perpetuates the effects of past racial discrimination.
This focus of the debate has provided little help in determining the extent to which race-conscious policies in the allocation of educational benefits are constitutionally permissible. The Supreme Court settled the question of the applicable standard of review in City of Richmond v. Croson and Adarand Constructors v. Pena, handed down respectively in 1989 and 1995, in favor of strict scrutiny.7 However, this determination by itself does not provide material guidance as to the mode of application of strict scrutiny. To be sure, the applicability of strict scrutiny indicates the Court's conviction that policies which include the consideration of race are statistically less probable to be upheld than policies that are subject to a looser standard of judicial review. Beyond statistics, however, the Supreme Court offers no substantive guidance as to the circumstances under which a race-conscious policy or practice passes constitutional muster, unless the standard of strict scrutiny is mechanically correlated with invalidation as the judicial outcome. This last option, though, was unequivocally rejected in Adarand, in which at least six Justices dispelled the notion that strict scrutiny is "strict in theory, but fatal in fact."8
Furthermore, the arguments that both proponents and opponents of affirmative action set forth at the application stage of strict scrutiny lack constitutional foundation. For instance, neither the original understanding nor the moral reading of the Constitution can offer a constitutionally conclusive answer to the question whether the benefits of educational diversity, including a racial component, are important enough to justify a race-conscious admissions policy. …