BARBARA GRUTTER, PETITIONER v. LEE BOLLINGER et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 23, 2003]
Justice Scalia, with whom Justice Thomas joins, concurring in part and dissenting in part.
I join the opinion of The Chief Justice. As he demonstrates, the University of Michigan Law School’s mystical “critical mass” justification for its discrimination by race challenges even the most gullible mind. The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions.
I also join Parts I through VII of Justice Thomas’s opinion.* I find particularly unanswerable his central point: that the allegedly “compelling state interest” at issue here is not the incremental “educational benefit” that emanates from the fabled “critical mass” of minority students, but rather Michigan’s interest in maintaining a “prestige” law school whose normal admissions standards disproportionately exclude blacks and other minorities. If that is a compelling state interest, everything is.
I add the following: The “educational benefit” that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of “‘cross-racial understanding,’” ante, at 18, and “‘better prepar[ation of] students for an increasingly diverse workforce and society,’” ibid., all of which is necessary not only for work, but also for good “citizenship,” ante, at 19. This is not, of course, an “educational benefit” on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law–essentially the same lesson taught to (or rather learned by, for it cannot be “taught” in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens. If properly considered an “educational benefit” at all, it is surely not one that is either uniquely relevant to law school or uniquely “teachable” in a formal educational setting. And therefore: If it is appropriate for the University of Michigan Law School to use racial discrimination for the purpose of putting together a “critical mass” that will convey generic lessons in socialization and good citizenship, surely it is no less appropriate–indeed, particularly appropriate–for the civil service system of the State of Michigan to do so. There, also, those exposed to “critical masses” of certain races will presumably become better Americans, better Michiganders, better civil servants. And surely private employers cannot be criticized–indeed, should be praised–if they also “teach” good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring. The nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand.
Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today’s Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation. Some future lawsuits will presumably focus on whether the discriminatory scheme in question contains enough evaluation of the applicant “as an individual,” ante, at 24, and sufficiently avoids “separate admissions tracks” ante, at 22, to fall under Grutter rather than Gratz. Some will focus on whether a university has gone beyond the bounds of a “‘good faith effort’” and has so zealously pursued its “critical mass” as to make it an unconstitutional de facto quota system, rather than merely “‘a permissible goal.’” Ante, at 23 (quoting Sheet Metal Workers v. EEOC, 478 U. S 421, 495 (1986) (O’Connor, J., concurring in part and dissenting in part)). Other lawsuits may focus on whether, in the particular setting at issue, any educational benefits flow from racial diversity. (That issue was not contested in Grutter; and while the opinion accords “a degree of deference to a university’s academic decisions,” ante, at 16, “deference does not imply abandonment or abdication of judicial review,” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).) Still other suits may challenge the bona fides of the institution’s expressed commitment to the educational benefits of diversity that immunize the discriminatory scheme in Grutter. (Tempting targets, one would suppose, will be those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses–through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.) And still other suits may claim that the institution’s racial preferences have gone below or above the mystical Grutter-approved “critical mass.” Finally, litigation can be expected on behalf of minority groups intentionally short changed in the institution’s composition of its generic minority “critical mass.” I do not look forward to any of these cases. The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.
Notes
*. Part VII of Justice Thomas’s opinion describes those portions of the Court’s opinion in which I concur. See post, at 27—31.
