Problems with Minimalism
Sunstein, Cass R., Stanford Law Review
INTRODUCTION I. AFFIRMATIVE ACTION, RULES, AND TRANSPARENCY II. RULES, STANDARDS, AND MINIMALISM A. Minimalism and Its Discontents B. The Case for Rules? 1. In defense of rules 2. Meta-questions 3. Minimalism's domain III. DEMOCRACY CONCLUSION
Consider two admissions programs:
* Program A gives a specified number of points to every African-American applicant. More particularly, every such applicant receives ten points, simply by virtue of being African-American. Ten points are not trivial, but they are far from enough to ensure admission. Children of alumni, for example, receive fifteen points; specified academic achievements produce thirty points; athletic accomplishments result in the addition of fifteen points. Admission is unlikely unless an applicant receives at least sixty points.
* Program B dispenses with a point system. Every applicant receives individualized consideration from one of eight admissions officers. In hard cases, the admissions officers meet in "teams" of three; in the hardest cases, all eight admissions officers meet as a group. For African-American applicants, race counts as a plus, though numbers are not assigned.
Under existing law, Program A is unconstitutional because it is too rule-bound. (1) Program B is permissible because it calls for "holistic" consideration of individual applicants. (2) More than anyone else, Justice Sandra Day O'Connor is responsible for the fact that constitutional law distinguishes so sharply between the two programs. While Justice O'Connor and Justice Breyer voted to strike down a variation on Program A and to uphold a variation on Program B, (3) the seven other Justices would treat the two the same, either upholding or invalidating both programs. (4)
Consistent with its general opposition to rigid affirmative action programs, the Court has long made clear that educational institutions cannot "insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants." (5) Extending that principle, the Court has also invalidated a point system, analogous to Program A, used for undergraduate admissions at the University of Michigan. (6) In that system, students received a specified set of points for various attributes, including academic performance (up to 110 points), in-state residence (ten points), having alumni parents (four points), athletic recruitment (twenty points), and being a member of an underrepresented minority group (twenty points). (7)
The Court did not rule that the twenty points were too high; it ruled instead that a point system, in the context of racial preference, is invalid as such. The Court stressed "the importance of considering each particular applicant as an individual, assessing all of the qualities that the individual possesses, and in turn, evaluating that individual's ability to contribute to the unique setting of higher education." (8) The problem with the point system is that its automatic nature simply does not allow for individualized consideration. And the easy administrability of this automatic system does not constitute an adequate excuse, for "the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system." (9)
By contrast, in Grutter v. Bollinger, Justice O'Connor wrote the Court's opinion permitting educational institutions to create affirmative action programs if they do not assign points or impose quotas but merely include race as a "plus" within a system of highly individualized judgment. (10) At least such programs are acceptable if they remain "flexible enough to ensure that each applicant is evaluated as an individual." (11) Hence, the Court permits raceconscious admissions if, in the words of Justice O'Connor's opinion, there is "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. …