Inside Higher Education
The Supreme Court’s leading race-based admissions case remains Grutter v. Bollinger, which was decided in 2003. In the course of upholding the use of race in the admissions policy at the Michigan Law School, the Supreme Court, with Justice O’Connor writing for a majority of five, decided that diversity can be a compelling interest the pursuit of which can justify the narrowly tailored use of race in selecting applicants.
O’Connor said the policy has “the potential to enrich everyone’s education.” Which can be done by enrolling a “critical mass” of underrepresented minority students, thus ensuring their ability to make “unique contributions” to the character of the school. For the record I should note that among the costs of such contributions are rejections of well-qualified applicants not of the correct race. Discrimination, in a word.
Having studied critical mass, perhaps even taken it too seriously, I can report that it made no appearance in the opinions in the 1978 Bakke case, not even in Justice Powell’s, which endorsed, with no Justice joining him, diversity as a compelling governmental interest.
I count at least 15 references to critical mass—none critical!— in O’Connor’s majority opinion in Grutter. And from the record the term is pretty clearly a creation of the Michigan law school.
Certain aspects of “critical mass” would not seem in dispute. The dictionary definition of mass is “a large body of people,” with “large” being a relative term, and “people,” in context, being the minority students admitted. The students who constitute a critical mass of underrepresented minority students must be, each of them, underrepresented minority students. And whether a minority applicant is an underrepresented minority student or not turns on the presence of the student’s particular minority group in the general population. Thus, in Michigan, blacks and Hispanics are at population levels that make them underrepresented, and Asians and Jews at levels that make them overrepresented.
The question persists as to whether those in overrepresented groups (again, Asian Americans and Jews) are discriminated against inasmuch as they are held to higher academic standards than underrepresented minority students are. (In the trial in Gutter one representative of 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.”)
You might think that elite schools are also pursuing critical mass; after all, Grutter is the decisional law. But there is one school—rather famous—that is not. Harvard University is defending itself against a private lawsuit by individuals alleging in the context of admissions that the school is “not using race to achieve critical mass.” Harvard concedes that it’s not. The argument being made against the Ivy presents its leadership as ignorant about critical mass, even intentionally so. Harvard’s responses indicate that Harvard isn’t going to quit its way—very possibly a losing one in the Supreme Court.
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Critical Dissents and their Educational Benefits
In his dissent in Grutter, Justice Scalia offers some litigation scenarios: Here are a few, lightly edited:
Some future lawsuits “will focus on whether a university has gone beyond the bounds of a “good faith effort” and has so zealously pursued its “critical mass” as to make it an unconstitutional de facto quota, rather than merely “a permissible goal.”
Other lawsuits may focus on whether, in the particular setting at issue, any educational benefits flow from racial diversity.
Still other lawsuits may claim that the school’s racial preferences have gone below or above critical mass.
Litigation can be expected on behalf of minority groups intentionally short changed in the school’s composition of its generic minority “critical mass.”
