Tacking Left: A Radical Critique of Grutter
Roithmayr, Daria, Constitutional Commentary
[R]ace conscious policies must be limited in time ... We expect that twenty-five years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
Justice O'Connor in Grutter v. Bollinger (1)
In Grutter v. Bollinger, the Supreme Court announced its expectation that twenty-five years from now, U.S. educational institutions will no longer need to use racial conscious affirmative action in admissions to admit a racially diverse class. Of course, time will tell whether Justice O'Connor's expectation will be given the force of law or regarded as dicta. (2) But dicta or not, law schools are highly unlikely in the next twenty-five years to be able to admit diverse classes without using race-conscious affirmative action. Racial inequality at all levels--education, housing, income and wealth--has become a remarkably stable feature of racial hierarchy in the U.S. (3)
Certainly with regard to conventional measures of merit for law school admission (i.e., grades and standardized test scores), racial disparities are as pervasive as they were when the Court decided Bakke twenty-five years ago. For the 2002-03 academic year, the median LSAT score for black applicants was 142.2, compared to a median white score of 153.9. (4) Thus, at present, black scores are about 19 percent lower than white scores. The differences at the top end of the scale are far more dramatic: blacks make up less than i percent of those scoring 165 or above on the LSAT. (5) By most accounts, the gap has persisted for the last twenty-five years, despite improvements in the economy and a growing black middle-class. (6) Moreover, the racial gap in LSAT scores may now be increasing. Over the past five years, the racial scoring gap has increased by 0.9 points, or 1.5 percent]
For the last decade, the issue of affirmative action in higher education has bedeviled those of us on the left. Even the most radical of critical race theorists acknowledges that, in connection with Grutter, we needed to defend small-scale diversity-oriented programs in order to hold the line on affirmative action rollbacks. As a symbolic matter, affirmative action represented the most visible form of commitment to dismantling racial hierarchy. And, in the wake of Hopwood and Proposition 209, radical scholars had to acknowledge the very real possibility that an increasingly conservative Supreme Court would cut back even further on the vitality of race-conscious preferences. Holding the line in Grutter was of the essence in the battle with conservatives over affirmative action.
At the same time, as a practical matter, we recognized the limits of diversity-based affirmative action. The small-scale affirmative action programs adopted by law schools produced few material gains for most people in communities of color. We knew that in most elite schools, diversity programs admit relatively small numbers of students. (8) We acknowledged that diversity-oriented programs concealed the racial bias of ostensibly race-neutral standards. (9) And from experience within our own institutions, we were painfully aware that the diversity rationale permitted institutions to claim that they were "for affirmative action," without having to make a commitment to eliminating the legacy of past discrimination. (10)
Ultimately, in the period leading up to the Court's decision in Grutter, many of us committed ourselves and our scholarship (despite our ambivalence) to the very pragmatic task of defending diversity-based affirmative action. But now that the Court has approved some form of race-conscious affirmative action, the time may have come for the left to tack left again: to strongly reassert the far more expansive view of racial equality, and to argue for a much larger-scale, much more robust form of affirmative action to accompany that view.
In that spirit, this article advances three central critiques of the Court's decision in Grutter--one pragmatic, one utopian and the last deeply cynical. …