1. The Incompatibility of Diversity and Colorblindness

      The argument for strict colorblindness is fairly straightforward. As Justice Harlan observed in his dissent in Plessy v. Ferguson,

       Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied [sic] by the supreme law of the land are involved.

      Justice Harlan's view has been endorsed by a number of members of the current Supreme Court, celebrated by past Justices, and widely praised in academic literature. Few today would object to Harlan's basic premise that all citizens should, as a general matter, be equal before the law. To be sure, the colorblind ideal has been and continues to be subject to a great deal of criticism, but it remains a widely-held and important national aspiration.

      At the same time, the aspiration to promote diversity and increased access for formerly excluded individuals and groups is also frequently articulated and forms the basis for a separate set of deeply held beliefs. Indeed, one commentator has observed that “a plurality, and probably a majority of the Supreme Court” has recognized “that diversity can constitute a compelling state Devotion to principles of both diversity and colorblindness raises certain challenges, for while it may be true in theory that “the value of racial diversity and a commitment to colorblindness are orthogonal rather than directly opposed,” as a practical matter, diversity and colorblindness frequently conflict. This is because “in the actual circumstances of our society, meaningful racial diversity can be achieved in certain contexts only by directly selecting for Accordingly, “even though a commitment to colorblindness is not logically inconsistent with regarding racial diversity as valuable, it can create a practical impediment to bringing it

      Accepting that strict colorblindness is a worthy ideal, one must recognize that it does not come without costs. Put plainly, for a number of institutions, colorblind gatekeeping processes would fail to produce diverse populations. In the law school admissions context, in which the Court decided Grutter, for example, the most recent data available show that in 2008-2009, there were only fifty-seven African-American law school applicants who had a grade point average of 3.5 or above and an LSAT score of 165 or above, which represents the consensus threshold for race-neutral consideration for admission among the most elite (top ten) law schools. Basing acceptances on just these two numbers-by far the two most significant in law school admissions-would net each elite law school an average of 5.7 African-Americans in their entering classes, which range from roughly 150 to 560 students. In reality, however, the few African-American students admitted to such schools under a colorblind regime would most likely flock to the most elite of them, meaning “it would be mathematically impossible for many other selective law schools to enroll even one black student with numeric scores in the highest This means that “if a selective law school wants to admit a racially and ethnically diverse class, then it may be impossible for the school to limit itself to minority students whose grades and test scores are equal to those of other admitted

      Although this is perhaps an extreme illustration, colorblindness is an impediment to diversity in a number of other realms, including undergraduate college admissions, the corporate sector, and government diversity efforts. Taking colorblindness seriously means never considering race under any circumstances; diversifying a student body, work force, board of directors, or a historically predominantly white industry such as financial services without at least some regard for race and ethnicity poses a significant, if not impossible, challenge.

      The reasons for this challenge should be obvious. How, for example, can a university committed to increasing the diversity of its student body not consider race? Sure, it could remove the racial identity check-box on the application, but as Devon Carbado and Cheryl Harris have shown, “excising race from admissions is far from simple” because personal statements and letters of recommendation often contain racial or ethnic signifiers. Whether these signifiers are direct or implicit, they can and often do convey the applicant's cultural identity. To be sure, admissions officers could be instructed to attempt to ignore even the clearest racial signifiers, but “the fact that an admissions officer understands that she is not supposed to take race into account, does not mean that she is in a cognitive position to do Thus, short of barring personal statements and letters of recommendation, race and ethnicity will continue to influence the thinking of admissions officers regardless of what the Supreme Court mandates because “preventing the explicit consideration of race is not the same thing as preventing any consideration of

      Similarly, given that an interview is a customary component of earning a job, a corporation or law firm seeking to diversify its workforce, as many currently are, would be hard-pressed and perhaps foolish to attempt to do so without considering the race of its applicants at least to some extent. The same goes for companies seeking to diversify their boards of directors, and the recent amendments to Regulation S-K explicitly acknowledge that diversity, including racial diversity, is a relevant consideration for at least some public companies.

      The other recent legislation discussed above similarly conflicts with strict colorblindness. How, for example, can a federal government contractor “make a good faith effort to include minorities . . . in their or can a medical care provider create a “community-based governing or advisory board that reflects the diversity of the communities in a strictly colorblind manner? The answer of course is that they cannot-again, the practical reality is that a steadfast commitment to colorblindness is in many, if not most, settings a practical impediment to bringing about diversity.

      In some settings, however, gatekeepers have successfully employed race-neutral means to increase racial and ethnic diversity. But as shown below, it would be a mistake to set policy based on these rare exceptions. Automatic admission schemes such as the University of Texas's Top Ten Percent Law provide a useful example. Although the Top Ten Percent Law resulted in greater numbers of underrepresented minorities at UT, the plan is in many ways, as Judge Higginbotham notes, “at war” with the diversity the Court embraced in Grutter. By focusing narrowly on geographic diversity, which acts in part as a proxy for race, the plan ignores other types of diversity and “restricts the University's ability to achieve the maximum educational benefits of a truly diverse student More importantly, by granting default admission to some, such plans eschew individual consideration of many candidates regardless of their racial or ethnic identity, which flies in the face of the type of diversity championed by the Supreme Court in Grutter. As Justice Ginsburg notes in her dissent in Gratz, “‘percentage plans depend for their effectiveness on continued racial segregation at the secondary school level’ and ‘encourage parents to keep their children in low-performing segregated schools, and discourage students from taking challenging classes that might lower their grade point “In short,” as Judge Higginbotham explains, “while the Top Ten Percent Law appears to succeed in its central purpose of increasing minority enrollment,” it does so only “at a high cost and is at best a blunt tool for securing the educational benefits that diversity is intended to

      Despite these shortcomings, it is tempting, particularly for advocates of strict colorblindness, to cite the Top Ten Percent Law and the resulting increase in the percentage of minority enrollment at UT as proof that universities can address at least some diversity objectives without resorting to race-conscious admissions. While perhaps superficially true in this narrow instance, this position cannot serve as an adequate basis for mandating colorblindness more broadly for two reasons. First, despite a general consensus to the contrary, the Top Ten Percent Law is not truly race-neutral, as “underrepresented minorities [are] its announced target and their admission a large, if not primary, Although the automatic admission of thousands of students pursuant to the plan is indeed colorblind, the Top Ten Percent Law owes its existence to a direct and explicit consideration of race. It is unclear from a strict colorblindness perspective why it might be unconstitutional for the University of Texas to consider race, yet constitutional for the Texas legislature to do the same.

      Second, the University of Texas has the luxury of being a world-class institution located in a large, diverse state. It is unclear, however, how institutions that draw a significant portion of their students from out-of-state, state institutions in less diverse states, or highly selective institutions that currently attract and admit applicants from throughout the country could replicate the Top Ten Percent Law to increase institutional diversity through automatic, race-neutral admissions procedures. Even less clear is how employers and other non-academic institutions could similarly diversify their populations based on a set of automatic entry criteria without compromising their other objectives.

      Another purportedly colorblind approach aimed at increasing diversity is to refrain from asking applicants' racial identity, but permit them to disclose in the application process any hurdles they have overcome in life that they believe the admissions committee should consider. But for the reasons discussed above, and in light of the relatively greater significance that race tends to play in the life narratives of underrepresented minorities, such an approach would inevitably invite racial and ethnic disclosures, thereby permitting administrators to consider race indirectly. As others have noted, the line between direct and indirect consideration of race is blurry at best, and it would seem that both are fundamentally incompatible with strict colorblindness-to the extent the Constitution prohibits one, it should prohibit the other. In short, notwithstanding the limited, ambiguous examples to the contrary, true colorblindness and most efforts aimed at promoting diversity cannot coexist.