constitutional law, affirmative action, diversity, equal protection, employment, financial aid
In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling -- specifically, a public law school’s interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well. The switch to instrumental justifications for affirmative action appears a strategic response to the Court’s narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning whether a focus on forward-looking rationales signals a retreat from a commitment to articulating the moral justification for affirmative action. This Article suggests that forward-looking justifications may open the door to revisit the moral roots of affirmative action by showing that diversity can be instrumentally valuable precisely because it is morally justifiable. More specifically, this Article tests Grutter’s observation that “[c]ontext matters when reviewing race-based government action under the Equal Protection Clause.” Part I examines a decisionmaking context very similar to that presented in the University of Michigan cases: race-conscious financial aid decisions by public institutions of higher education. This is a question of real contemporary significance, as schools struggle to determine how to proceed with virtually no judicial precedent as guidance. The Article concludes that Grutter opens some doors for race-based government decisionmaking in this context, while closing others. On one hand, newly-available forward-looking rationales may enable governments to rely on more generalized factual predicates to justify instrumentally-motivated race-conscious decisionmaking. They may also help re-shape our understanding of undue burden to include an assessment of diversity’s countervailing benefits to nonminorities, again increasing the possibility that certain affirmative action programs will survive scrutiny. The Article predicts, however, that many race-exclusive scholarships face substantial – but not necessarily insurmountable – barriers to a finding of narrow tailoring. Part II pushes further afield to examine a very different set of decisions by a different set of government decisionmakers: public entities’ employment decisions. Here, too, Grutter opens new doors to race-based decisionmaking, some more promising than others. This Part predicts that forward-looking rationales may well extend to the employment context, although their application may be limited and – in at least one case – dangerous. For example, instrumental justifications that rely on race or national origin as proxies for other attributes – e.g., skill in managing a diverse workforce or anticipating the needs of a diverse consumer base – are themselves steeped in the sort of discriminatory stereotypes that remedial rationales seek to challenge. Particularly intriguing, on the other hand, is the rationale suggested in an amicus brief filed in Grutter by a variety of retired military leaders and cited by the Court with apparent approval. Based on their experiences in the 1960s and 1970s, when an overwhelmingly white officer corps led a racially diverse enlisted corps, the military leaders concluded that “the absence of minority officers seriously threatened the military’s ability to function effectively and fulfill its mission to defend the nation,” leaving it “on the verge of self-destruction.” The Article observes that such an all-white leadership presiding over a racially diverse community may be seen as mirroring the race-based master-servant dynamic too often played out in this country so as to undermine confidence and, ultimately, order. Indeed, the military experience demonstrates how maintaining the perception, if not the reality, of a racial caste system is not only morally but also instrumentally suspect. The Article concludes that, under this rationale, race-conscious employment decisions may be justified when a racially diverse leadership team communicates a visible rejection of racial caste systems that otherwise subvert the legitimacy – and thus the effectiveness – of the military, law enforcement, and perhaps other public entities.