How About 10 Percent?
Reading the district court’s decision upholding Harvard College’s use of race in its admissions program, I was struck by Judge Allison Burroughs’ treatment of the term “critical mass.’’ It entered the affirmative action vocabulary in 1992, when the University of Michigan Law School adopted a new admissions policy that would use race to admit a more diverse student body. Barbara Grutter sought entry to the school but was turned down. She sued the law school, ultimately losing in the Supreme Court in 2003. That ruling, Grutter v. Bollinger, is the leading case on “consideration” of race in admissions, the Court’s holding being “that student body diversity is a compelling state interest that can justify the use of race in university admissions.”
Justice O’Connor, who wrote for a majority of five, said the law school’s admissions policy aspired to “achieve that diversity which has the potential to enrich everyone’s education.” This educational enriching was to be accomplished by a certain group of students that the school dubbed a “critical mass.” They were to be “underrepresented minority students,” and as such, apparently, able to make “unique contributions to the character of the . . . school.” Why members of critical masses (at the schools that have them) are so uniquely endowed is surely wrong.
Be that as it may, 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 at the law school in a critical mass of underrepresented minority students had to be, each of them, without exception, underrepresented minority (URM) students. And whether a minority student was a URM or not turned on the presence of his particular minority group in the state of Michigan. Thus, blacks and Hispanics were at population levels that made them underrepresented, and Asians at levels that make them overrepresented and therefore non-critical massable. (A not incidental point, since the lawsuit alleges discrimination against Asian Americans.)
To generate a large enough critical mass, “meaningful numbers” are needed, as a director of admissions testified during the Grutter litigation. She understood that to mean “a number which encourages underrepresented minority students to participate in the classroom and not feel isolated.” There was no precise number or percentage that constituted critical mass. But the expectation was that at least 10 percent of the students in each class would make up a critical mass.
The term made it into Judge Burrough’s 130-page opinion in back to back sentences: “The Supreme Court [in Grutter] found that the law school’s goal of enrolling a critical mass of minority students did not run afoul of the requirement that a school not attempt to attain some specified percentage of a particular group merely because of its race or ethnic origin, which would amount to outright racial balancing and be patently unconstitutional. Instead as distinct from a quota, the concept of critical mass was defined by reference to the educational benefits that diversity is designed to produce, including, racial understanding, breaking down stereotypes, advancing leaning outcomes, and preparing students for a diverse workforce and society.”
This lengthy passage from Grutter distinguishes a critical mass from a specified percentage of a particular minority group; from outright racial balancing, which is patently unconstitutional; and from a quota, which is inherently unconstitutional. Critical mass, in other words, is none of the bad things the use of race in admissions is said to produce. But consider that a critical mass would seem at least able to be expressed as a specified percentage of URMs or as a quota of same. Perhaps sensing this, Judge Burroughs quotes Grutter in defense of critical mass: “The goal of attaining a critical mass of underrepresented minority students does not transform [the Harvard] program into a quota.” Interestingly, critical masses are intended to be racially exclusive.
I’ve been wondering whether critical mass might become a key issue on appeal. One of the four counts first brought against Harvard concerned critical mass. Harvard has largely ignored it, and the admissions officers, if you judge their answers about critical mass, would flunk a test on it. Critical mass, however, could persist into the circuit court and the Supreme Court. Would that it does.
* * *
Here’s Justice Scalia from his opinion in Grutter: The law school’s “mystical ‘critical mass’ justification for its discrimination by race challenges even the most gullible mind. The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions.
. . . I find particularly unanswerable [Justice Thomas’s] central point: that the allegedly ‘compelling state interest’ at issue here is not the incremental ‘educational benefit’ that emanates from the fabled ‘critical mass’ of minority students, but rather Michigan’s interest in maintaining a ‘prestige’ law school whose normal admissions standards disproportionately exclude blacks and other minorities. If that is a compelling state interest, everything is.”
