Grutter: Some Issues to Think About

•  Notice that the Court makes clear "that all racial classifications imposed by government 'must be analyzed...under strict scrutiny.' This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests." (p. 858) 
• Justice Kennedy in dissent says "The Court ...does not apply strict scrutiny."(p. 864) Is he correct?
• What is the difference between a permissible "critical mass" and a forbidden "quota"? What is the difference between the permissible "racial plus" in Grutter and the impermissible racial "20 points" in Gratz? Is the real difference only "cosmetic" in the sense that the policy in Grutter simply conceals the fact that race is the decisive factor in admissions for those who are part of the critical mass?
  
• What about less restrictive means of getting a racially-diverse class? Why shouldn't Michigan Law School decide on minimum qualifications for law students and then use a race-neutral lottery to select a class from this very large pool of minimally-qualified (as opposed to highly-qualified) applicants? Is maintaining its status as an "elite" law school a compelling state interest? How so? Does Michigan want to have it both ways--to use a very high standard of qualifications to select roughly 80% of its law school class (even though almost no minorities are admitted under this standard of merit) and then use race as a "determinative factor" or as an "extremely large" factor in selecting the other 20% of its class?
• The Court says that the Law School's "race-as-a-plus" admissions program does not unduly harm members of any racial group."  (p. 862) What does that mean? If a "critical mass" of the seats in the class are determined by the use of a large racial plus, doesn't this necessarily mean that non-preferred students, who would have been admitted had others not received a large racial plus, are seriously harmed by losing out on an educational and career opportunity? The Court says that since all students are considered on an individualized basis and race is only used as one factor, the program is fair and does not unduly harm non-minority students. Do you buy this? If "but for" the racial plus given to B, A would have been admitted instead of rejected, hasn't A suffered a serious race-based harm? Is this "fair?" How so?
• In Gratz, Justices Breyer and Ginsburg argued that "government decisionmakers may properly distinguish between policies of inclusion and exclusion." (p. 870). Do you agree? If admissions offers are limited, and if A is preferred over B for a scarce seat in the class on the basis of A's race, is it not true that B has been excluded on the basis of her race? In another words, if race is the basis of assigning a place in the class, is it not true that to include A is necessarily to exclude B? Is this not just the cold logic of scarcity and racial preferences?
• If you oppose racial preferences, are you willing to live with a law school student body that has few or no members of racial and ethnic minority groups? If not, what is your solution or plan?
• I remember a few years ago a supporter of racial preferences said "we are going to get racial equality in this country even if it means sacrificing an entire generation of white [and Asian?] children." What do you think he meant? Is this a little like Justice O'Connor saying that there must be a durational limitation of, roughly, 25 years on racial preferences in admissions? (p. 862) Since racial preferences have already been in force for at least 30-40 years [DeFunis was decided in 1974 and Bakke in 1978], we should probably be talking about 2-3 generations, not just 1 generation. Is this a price worth paying? How do you explain to White and Asian children whose dreams are taken for this "sacrifice" that this is a fair and good policy? The recent case involving Harvard's affirmative action admissions process suggest that Asian-American students may bear much of the cost of racial preferences.
• Which minority students are more likely to benefit from affirmative action preferences in law school and medical school--those from poor families or those from more affluent families? Which non-preferred students are more likely to lose opportunities due to being on the wrong side of racial preferences--those from affluent families or those from poor or working class families?
• I recently heard a law professor give a presentation in which she argued that an African-American student from an upper income family (e.g., both parents lawyers or doctors) is more deserving of a large scholarship than is a white student from a humble economic background? Her point was that diversity means more than an offer of admission; it also means recruiting minority students to accept the school's offer of admission, and that may mean giving large racially-exclusive scholarships even to wealthy minority students. Is this just an application of Economics 101 and its teaching about supply and demand--scarcity increases price--and thus minority applicants are "worth" more (precisely because of their race) than non-minority applicants and thus deserve large racially-based scholarships without regard to need? Is this fair? Should it be constitutional?
• William Voegeli says that equal opportunity and meritocracy, not racial preferences, are most consistent with American values: "Working hard and playing by the rules...[advance] the idea that effort, self-discipline, and family cohesion still count in a country that is not perfect but also not beset by 'systemic' racism."  (Voegeli, A Tale of Two Propositions, Claremont Review of Books 2022)
•   Ibram X. Kendi, however, supports what he calls "anti-racist" policies: “'A racist policy yields racial disparities,' he wrote in the New York Times. 'An anti-racist policy reduces or eliminates racial disparities.'"  Id.
• Do you agree with Voegeli or Kendi? Should race--or merit--determine who gets admitted, who gets a scholarship, and who gets a job, an internship, or other scarce opportunities? Should the law guarantee equal results, or equal opportunities?