COMMENT: How The Diversity Rationale For Affirmative Action May One Day Limit The First Amendment Rights of Universities

By Pete Osornio, Associate Editor, Volume 19

I. Diversity (Re)affirmed

Grutter v. Bollinger definitively authorized the use of affirmative action policies in higher education,[1] resolving the circuit split[2] that followed the Supreme Court’s fractured opinion in Regents of University of California v. Bakke.[3] In Grutter, the Supreme Court endorsed Justice Powell’s view that diversity is a compelling state interest justifying the consideration of race and ethnicity in college admissions.[4] The Court approved the University of Michigan Law School’s affirmative action policy on the grounds that admitting individuals with diverse backgrounds “contribute[s] to the learning of those around them.”[5] Indeed, the Court lauded the Law School for aspiring to “achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.”[6]

While Grutter was in some respects a victory for proponents of affirmative action policies, the Court’s agreement with Justice Powell that diversity is the lone constitutionally permissible basis for such policies engendered an inconsistency. Citing Bakke, the Court said the right of the University of Michigan to seek a diverse student body is grounded in its First Amendment right to define its educational mission.[7] However, the Court did not address why, in light of the Fourteenth Amendment’s guarantee of equal protection of the laws,[8] the First Amendment nonetheless permits admissions offices to afford preferences to some racial and ethnic minorities but not others.

II. Education is the Very Foundation of Good Citizenship[9]

The importance of education in an individual’s life was the rationale underlying Grutter.[10] In its decisions on race and education, the Court frequently notes the role that a diverse educational environment plays in a person’s maturation and consequently on the development of a just society.[11] The Court should not be faulted for recognizing diversity as a compelling state interest, as research has substantiated the Court’s conclusion.[12] But if attainment of a critical mass of minority students is significant because it enriches every student’s education, then Grutter failed to adequately scrutinize the Law School’s policy. While Grutter sanctioned the Law School’s exclusion of individuals of Jewish and Asian American descent from receiving affirmative action preferences on the grounds that individuals from those groups were already enrolling in significant numbers,[13] it never addressed why the admissions office could exclude other minorities who were not enrolling at the school in critical mass quantities from receiving preferences. Instead, the Court implicitly endorsed the specific racial and ethnic categories afforded preference by the Law School without questioning whether providing preferences solely to those groups would actually allow the School to realize the educational benefits of diversity.[14]

As a result, under Grutter, a university can grant preference to a Hispanic applicant who is wholly integrated into American society over an Arabic-speaking applicant from Saudi Arabia.[15] Yet there is ample evidence that Arab Americans experience significant societal discrimination—a valid basis for granting affirmative action preferences under Grutter[16]—and that therefore the non-Arab American students of many universities would benefit from having a critical mass of Arab American classmates.[17] Likewise, under Grutter, a university can grant preference to white descendants of Spanish conquistadors while denying those preferences to children of Hmong parents.[18] In fact, Hmong applicants may find themselves at a disadvantage because Asian Americans are considered to be overrepresented at many institutions of higher learning,[19] even though Hmong students specifically are not well-represented.[20]

III. The First Amendment Rights of Admissions Offices Will Likely Come Up For Review at Some Point

It is unclear whether satisfactory reasons exist for permitting the particular preferences tacitly approved by Grutter. In that sense, Fisher v. University of Texas at Austin[21] was a missed opportunity. The University of Texas was granting preference to Hispanic applicants—even though Hispanics were enrolling at the school in significant numbers—while simultaneously denying preference to Asian Americans, a group whose enrollment lagged behind that of Hispanics.[22] The Court could have used the case to scrutinize affirmative action policies crafted under the pretense of improving student body diversity. Although the Court purported to apply strict scrutiny to the University of Texas’s policy,[23] it never forced the admissions office to offer a coherent explanation of why fewer Asian Americans than Hispanics were needed to attain the educational benefits of diversity.[24]

Given our increasingly multicultural society,[25] this issue is gaining importance because the collegiate admissions process is one of the few settings in which states may allocate benefits and burdens on the basis of race and ethnicity. Fisher reaffirmed admissions officers’ prerogative in this regard.[26] Nevertheless, given that diversity is the only constitutionally permissible justification for affirmative action in higher education, it is likely that universities will at some point be required to explain to the Supreme Court why the Equal Protection Clause permits affording preferences to some racial and ethnic minorities but not others.

Many assume that universities’ actual motive for adopting affirmative action policies is to rectify the lasting socioeconomic impact of slavery and discrimination,[27] but that basis for affirmative action was constitutionally foreclosed by Justice Powell’s opinion in Bakke,[28] and to some extent by the Court’s opinions in City of Richmond v. J.A. Croson Co.[29] and Adarand Constructors, Inc. v. Pena.[30] Thus, in Grutter the University of Michigan Law School likely put forth the diversity argument hoping that the Supreme Court would unequivocally adopt Justice Powell’s view. Although the Law School was ultimately successful, the result created tension in cases such as Fisher, where the University of Texas was already attracting a considerable number of Hispanic students. In those instances, the diversity rationale is questionable at best. Accordingly, it is likely that universities will at some point be forced to defend their freedom to define the details of their affirmative action policies. If no constitutionally permissible justification exists for granting preferences to some minority groups but not others, the Supreme Court may limit the First Amendment rights of universities.


[1] 539 U.S. 306, 343 (2003) (“In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”).

[2] Compare Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) (holding that diversity is not a compelling state interest), with Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188 (9th Cir. 2000) (holding that it is).

[3] 438 U.S. 265 (1978).

[4] 539 U.S. at 325 (“[T]oday we endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.”).

[5] Id. at 315.

[6] Id.

[7] Id. at 324 (“Justice Powell grounded his analysis in the academic freedom that ‘long has been viewed as a special concern of the First Amendment.’”).

[8] U.S. Const. amend XIX, § 1 (“[N]or shall any State deprive any person of … the equal protection of the laws.”).

[9] Brown v. Bd. of Ed. of Topeka, 347 U.S. 483, 493 (1954).

[10] To buttress its decision, the Court looked to the business world, which asserted that the skills needed in the “increasingly global marketplace” could only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Grutter, 539 U.S. at 330. The Court also pointed to the United States military, which contended in an amicus brief that a “highly qualified, racially diverse officer corps” was “essential to the military’s ability to fulfill its principle mission to provide national security.” Id. at 331.

[11] See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 782  (2007) (Kennedy, J., concurring in part and concurring in the judgment) (“The Nation’s schools strive to teach that our strength comes from people of different races, creeds, and cultures uniting in commitment to the freedom of all.”); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978) (“[I]t is not too much to say that the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” (citing Keyishian v. Bd. of Regents of Univ. of N.Y., 385 U.S. 589, 603 (1967))); Brown, 347 U.S. at 493 (1954) (“[Education] is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”).

[12] See, e.g., Patricia Gurin et al., The Benefits of Diversity in Education for Democratic Citizenship, 60 J. of Soc. Issues 17 (2004), available at; Patricia Gurin, Expert Report of Patricia Gurin, Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000) (No. 97-75321) and Grutter v. Bolinger, 16 F. Supp. 2d 797 (E.D. Mich. 1998) (No. 97-75928), reprinted in 5 Mich. J. Race & L. 363 (1999), available at

[13] Grutter, 539 U.S. at 319 (“[The Law School] acknowledged that other groups, such as Asians and Jews, have experienced discrimination, but explained they were not mentioned in the policy because individuals who are members of those groups were already being admitted to the Law School in significant numbers.”).

[14] See id. at 308 (“The Court defers to the Law School’s educational judgment that diversity is essential to its educational mission.”).

[15] Brief for Petitioner at 24, Grutter, 539 U.S. 306 (No. 02-241), 2003 WL 164185 at *43 (“The Law School’s daily tracking of the race and ethnicity of its applicants entirely omits many racial and ethnic groups, including, for example, Arab Americans, who receive no preferential treatment.”).

[16] See Grutter, 539 U.S. at 316 (“The policy does, however, reaffirm the Law School’s longstanding commitment to ‘one particular type of diversity,’ that is, ‘racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against . . . .’”).

[17] See, e.g., Christine Tamer, Arab Americans, Affirmative Action, and a Quest for Racial Identity, 16 Tex. J. C.L. & C.R. 101, 118 (2010).

[18] Brief for Petitioner, supra note 15, at 24 (“Asian Americans are treated as [an] undifferentiated mass[], receiving no preference for race or ethnicity, even though one could easily identify dozens of separate racial or ethnic groups contained in th[at] . . . categor[y].”).

[19] See, e.g., Sharon S. Lee, The De-Minoritization of Asian Americans: A Historical Examination of the Representations of Asian Americans in Affirmative Action Admissions Policies at the University of California, 15 Asian Am. L.J. 129 (2008).

[20] Rong Xiaoqing, Divided by Affirmative Action? A Diversified Asian Community Facing New Challenge, Voices of NY (Apr. 8, 2013, 12:37 PM), (“Unlike the Chinese, the Korean or the Indians, who are already regulars in the Ivy Leagues, smaller groups such as the . . . Hmongs are still far underrepresented in colleges. They could benefit when the racial background is broken down to subgroups on the application forms.”).

[21] 133 S. Ct. 2411 (2013).

[22] Brief for Petitioner at 20, Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013) (No. 11–345) 2012 WL 1882759 at *46 (“There are slightly more Hispanic students than Asian-American students enrolled at UT . . . yet UT discriminates between the two by using race in admissions decisions to benefit the former but not the latter . . . .”).

[23] Fisher,133 S. Ct. at 2420.

[24] Fisher argued that UT’s differing treatment of Asian Americans and other minorities amounted to racial balancing. Brief for Petitioner, supra note 22, at 26-28. The Supreme Court has repeatedly held that racial balancing is “patently unconstitutional.” See, e.g., Grutter v. Bollinger, 539 U.S. 306, 330 (2003).

[25] In the next fifty years, the United States is projected to become a plurality nation, with no single racial or ethnic group in the majority. Press Release, United States Census Bureau, U.S. Census Bureau Projections Show A Slower Growing, Older, More Diverse Nation a Half Century from Now (Dec. 2012, 2012), available at By 2060, Whites are projected to account for 43% of the population; Hispanics are projected to make up 31% of the population; African Americans are projected to amount to 14.7% of the population; and Asians are projected to constitute 8.2% of the population. Id.

[26] Id. at 2415.

[27] See, e.g., Erwin Chemerinsky, Making Sense of the Affirmative Action Debate, 22 Ohio N.U. L. Rev. 1159, 1161 (1996) (“The most frequently identified objective for affirmative action is to remedy past discrimination.”).

[28] Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 310 (1978) (“[T]he purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of ‘societal discrimination’ does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.”).

[29] 488 U.S. 469, 505-06 (1989) (“To accept [a] claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief’ for every disadvantaged group. . . . [S]uch a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.”).

[30] 515 U.S. 200, 227 (1995) (“[T]he Fifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle that all governmental action based on race . . . should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.”).