Is this the Sandra Day O’Connor moment?

In Grutter v. Bollinger, the Supreme Court upheld the use of race-based preferences by the University of Michigan Law School, The vote was 5-4.

In her majority opinion, Justice O’Connor concluded that the University has a compelling interest in promoting diversity in the classroom. However, O’Connor also said:

[A]ll governmental use of race must have a logical end point. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

O’Connor wrote these words in 2003.

Many on both sides of the racial preferences debate questioned whether O’Connor’s expectation would be met. I did.

But now, 15 years after Grutter, there is reason to question whether racial preferences are still necessary to further colleges’ alleged interest in a racially diverse classroom. As I discussed yesterday, Harvard University told a federal court that without its system of taking race into account (favoring some races/ethnic groups while disfavoring others), its class of 2019 would have been 15 percent African-American and Latino.

Assuming this is true, and assuming attaining the 15 percent figure doesn’t entail undisclosed manipulation through which Blacks and Latinos are favored, then Justice O’Connor’s expectation has been met at Harvard. The majority opinion in Grutter didn’t define diversity as representation of minorities in proportion to their representation in the population. Rather, it spoke of the inclusion of minorities in meaningful numbers and of enrolling a “critical mass” of underrepresented minority students.

It should be clear that these objectives are accomplished in a student body that is 15 percent Black and Latino, assuming that these two groups are both well represented among the 15 percent. Thus, if what Harvard told the court is true, its use of racial preferences in admitting undergraduates is no longer necessary to further the interest approved in Grutter.

The same thing may well be true at colleges lower in the pecking order. We know that when top colleges like Harvard accept minority applicants who don’t meet the standards used to judge White and Asian-American applicants, it creates “mismatch” up and down the line.

Harvard ends up with minority students who are likely to be mismatched academically. And less challenging colleges lose minority students who are likely to succeed academically at their institutions — the students who couldn’t get into Harvard without being preferred, but who could have made it into colleges a step or two lower on the totem pole. These colleges then feel compelled, in the name of diversity, to accept a lesser set of minority applicants — ones who aren’t well-matched. And so forth.

But if Harvard’s student body were 15 percent Black and Latino — the number it allegedly would be without racial preferences — then the excess 13 percent would be available to fill the ranks of colleges like Dartmouth. Add some of the spillover from the Harvards to the minority students accepted by the Dartmouths without the need for preferences, and the Dartmouths likely would be sufficiently diverse without needing to racially prefer anyone. And so forth.

Thus, the next time the Supreme Court reviews the issue of race-based preferences in college admissions, it should consider whether the Sandra Day O’Connor moment has arrived at the defendant institution. In the meantime, lower courts hearing such cases should consider this.


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