3. Resolving the Conflict
The above examples illustrate the binary that exists in numerous settings between two nationally important objectives: institutions can either aggressively pursue diversity or endorse strict colorblindness-but in most instances, not both. Accepting this premise, the obvious issue is how the Supreme Court should resolve Fisher, in which Judge Higginbotham's pro-diversity deference to the UT administration's assessment of how it should consider race in structuring its entering class stands in stark contrast to Judge Garza's cogent articulation of the importance of adhering to strict colorblindness. In resolving this conflict of loyalties, it is important to note two things specific to Fisher and Grutter.
First, based on the examples above, it appears that Judge Garza is correct that the admissions processes at issue in Gratz (which was struck down) and Grutter (which was upheld and served as the basis for the process at issue in Fisher) are not distinct from a strict colorblindness perspective. Judge Garza asks in his special concurrence:
If two applicants, one a preferred minority and one nonminority, with application packets identical in all respects save race would be assigned the same score under a holistic scoring system, but one gets a higher score when race is factored in, how is that different from the mechanical group-based boost prohibited in Gratz?
From a strict colorblindness perspective, there is no difference-in both instances, race is a dispositive consideration.
But the recognition that strict colorblindness conflicts with even the narrowest considerations of race is not alone dispositive; the question of whether it should ever be permissible to privilege diversity over colorblindness remains. Thus, the second point worth considering relates to the unusual fact pattern in Fisher. Recall that UT's race-neutral Top Ten Percent Law consistently produced a not insignificant amount of diversity in UT's entering class, but not enough in the estimation of UT administrators to stop them from considering race as a small factor for some applicants. This fact presents the Court with an opportunity to resolve Fisher without directly abandoning either its diversity or colorblindness aspirations. Were it to strike down UT's use of race in admissions while lauding the diversity it has been able to achieve through the Top Ten Percent Law, as at least one commentator has suggested it might, the Court could ostensibly reaffirm the importance of both principles while privileging neither.
Resolving the case in this way would undoubtedly be less extreme than holding that race-consciousness is per se unconstitutional and might seem to avoid resolving the conflict that this Article has argued lies at the core of Fisher. But in reality it would represent a privileging of colorblindness at the expense of diversity. An opinion barring UT's extraordinarily narrow use of race would be in alignment with Judge Garza's observation in Fisher that
[t]here are no de minimis violations of the Equal Protection Clause, and when government undertakes any level of race-based social engineering, the costs are enormous . . . . Changing the color of the group discriminated against simply inverts, but does address, the fundamental problem: the Constitution prohibits all forms of government-sponsored racial discrimination.
In striking down UT's use of race-which contributes to the admission of only a small fraction of its students -the Court would send the message that entities are no longer permitted to determine for themselves, in good faith, the point at which they have reached a critical mass of underrepresented minorities such that they need no longer consider race. Though attempting to uphold both diversity and colorblindness as co-equal aspirations the simple resolution described above does not successfully sidestep the debate. While University of Texas can admit a relatively diverse class without considering race via the Top Ten Percent Law, other entities are not able to do the same, meaning that there is no way for them to produce the diversity they seek in a race-neutral fashion.
The most likely effect of a Supreme Court opinion strongly endorsing colorblindness and supporting Judge Garza's position-that the consideration of race in admissions amounts to “race-based social engineering” and that race-conscious decisionmaking by public universities is nothing more than “government-sponsored racial discrimination,” which the “Constitution prohibits” -would be a diminution in the enthusiasm and resources devoted to race-conscious efforts aimed at promoting diversity in settings far beyond public university admissions. To the extent that use of race at UT as “a factor of a factor of a factor of a is held to be an unconstitutional form of discrimination, it follows that the practices of many current entities, public and private, that consider race are presumptively illegal. To be sure, it is possible that some entities might be able to find race-neutral end-arounds in order to continue promoting diversity or persist in employing prior race-conscious efforts at diversification despite the increased threat of litigation begat by a pro-colorblindness Fisher holding. But due to the fundamental tension between fostering diversity and colorblindness, the more likely result of even a narrow opinion striking down UT's use of race would be a significant hampering of race-consciousness, leading to a reduction in diversity.
It is for this reason that Fisher is so crucial a case and why it is essential that the Court reaffirm the principles of Grutter, which permit limited, individualized, good faith deviations from the colorblindness ideal. The alternative, justified by a belief that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of would, regardless of how it is written, equate the perfectly reasonable step of considering race in an effort to promote diversity with invidious discriminatory acts aimed at racial subordination. Were the Court to go down this path and go on to endorse strict colorblindness, it would mark a radical shift away from the pro-diversity norms that have arisen in recent decades and are today as strong as they have ever been. To the extent diversity is an aspiration worth pursuing, the law must permit entities to consider race in a manner they deem fit in pursuit of their legitimate objectives. This belief should not be controversial.
Unfortunately, the current Supreme Court contains at least four Justices who are likely to disagree. A fifth, Justice Kennedy, dissented in Grutter, voting to strike down the University of Michigan Law School's use of race in admissions, which served as the basis for the UT plan under consideration in Fisher. This means that the future of race-conscious efforts aimed at promoting diversity could well hinge on the hope that Justice Kennedy might change his mind. But an examination of two of Justice Kennedy's opinions suggests that he recognizes the important space that consideration of race occupies in the path toward greater inclusion and equality.
In his dissent in Grutter, Kennedy declares, “There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions There is reason to believe that the UT plan under consideration in Fisher might satisfy this criterion. Moreover, in his opinion in Parents Involved, in which he rejected diversification plans that placed students in schools based on binary racial designations, Justice Kennedy endorsed the use of “a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component” as an alternative and asserted that such an approach “would be informed by Grutter.” How Justice Kennedy will vote in Fisher remains to be seen, but there is at least some possibility that he will recognize the differences between the affirmative action plans in Grutter and Fisher and vote to uphold the latter.
But the real hope is that Justice Kennedy, or perhaps one or more members of his conservative colleagues, will recognize the significant costs of endorsing strict colorblindness. As this Article has shown, the Court cannot simultaneously promote serious commitments to both diversity and colorblindness. Given this choice and the cataclysmic costs of a Supreme Court holding that UT's consideration of race amounts to unlawful discrimination, the case for remaining loyal to the principle of diversity is strong, and it is clear that anyone who values diversity and recognizes the reality of the current state of affairs must reject the rhetorical and aspirational appeal of strict colorblindness. The alternative, a steadfast, unwavering loyalty to colorblindness, would render many or perhaps most race-conscious efforts aimed at diversification illegal and result in a significant diminution of the diversity thousands of entities have struggled to achieve over the last forty years.
As Justice O'Connor has observed, “Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution's written terms embody ideas and aspirations that must survive more ages than In our current generation, diversity is an aspiration in both the private and public sectors, and its promotion in most instances conflicts with colorblindness. Notwithstanding the importance of precedent, our jurisprudence is both backward- and forward-looking, and the Court should remain reflective of current attitudes and preferences. Here, in deciding whether to remain loyal to principles promoting diversity or strict colorblindness, it is incumbent upon the Court to recognize that where the latter is an abstract ideal, the former is a national imperative.
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. Associate Professor, Drexel University Earle Mack School of Law. A.B., Princeton University; J.D., Yale Law School.
