A Rational Basis for Affirmative Action: A Shaky but Classical Liberal Defense

I am honored to participate in a symposium on the occasion of the lOOth anniversary of one of America’s preeminent law reviews. I am saddened, however, to write, at what should be a moment of celebration, with the knowledge that both the Law School and the College of Literature, Science and the Arts are enmeshed in extensive litigation over the critical and explosive issue of affirmative action. To find striking evidence of the deep split of learned judicial views on this issue, it is necessary to look no further than the sequence of opinions in Gratz v. Bollinger and Grutter v. Bollinger. Gratz was bought by a rejected white applicant to the College of Literature, Science and the Arts; Grutter by a rejected white applicant from the Law School. The two district courts reached opposite conclusions on what they perceived to be the central issue in this running dialogue: did the racial diversity of the student body count as a compelling state interest that justified a departure from the color blind norm established under the equal protection clause of the Fourteenth Amendment? Diversity, at the district court level, counted as a compelling state interest for the University of Michigan College of Literature, Science and the Arts, but not for its Law School. This division of opinion was erased when Grutter was reversed on appeal, most fittingly, by a bare five to four majority.3 No one seriously thinks that the matter will rest here, for the tensions within the Sixth Circuit and beyond make it likely that at long last the Supreme Court will revisit this issue.