The Path to Diversity | Center for Equal Opportunity

Law professor Eugene Volokh asks the useful question: “When does the U.S. Constitution allow government officials to discriminate based on race?” Courts have
said that “governmental racial classifications”—policies that sort people into racial categories—are presumptively impermissible, yet acceptable if the government makes a strong justification for them. “The legal rule is . . . the strict scrutiny test,” says Volokh. Accordingly, to be deemed constitutional, a race-based policy must be “narrowly tailored” to achieve a “compelling government interest.”

There is, of course, some pertinent history. Law professor Stephen A. Siegel says that by 1940 narrow tailoring had become “the oldest branch” of strict scrutiny and “a prominent part” of the Supreme Court’s First Amendment jurisprudence. It was a means of examining the government’s “precision of regulation,” as the Court said in a 1958 speech case. As for strict scrutiny and the compelling state interest test, Siegel locates origins of both in litigation in the late 1950s and early 1960s over First Amendment freedoms—speech, religion, and association. The reckoning was that government must have a compelling interest to justify infringing on fundamental rights.

Siegel quotes Justice Brennan from his opinion for the Court in a 1965 free exercise of religion case: “We must next consider whether some compelling state interest . . . justified the substantial infringement of appellant’s First Amendment right. It is basic that no showing of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, “[only] the gravest abuses, endangering paramount interest, give occasion for permissible limitation.” Siegel says this was “the first clear, succinct, and complete statement” of the term “strict scrutiny.”

Starting in 1969, with the end of the Warren Court, the compelling state interest standard spread within equal protection analysis. Says Siegel, “racial classification was perhaps the last area of constitutional law expressly brought within the scope of the compelling state interest standard.” Not until the late 1970s was an equal protection case effectively decided on the principle that the regulation at issue must be precisely tailored to serve a compelling government interest.

In Bakke, then, Justice Powell was recognizing relatively new developments in the law when he said, “We have held that, in order to justify the use of a [racial] classification, a state must show that its interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the . . . accomplishment of its interest.”

Powell proceeded to apply what “we have held” to the case before the Court—an equal protection case arising from higher education. It was not a segregation case but one about affirmative action. And the case could not have come about without a racial classification, and of course there was one, the dual admissions track created by the medical school and which provoked the complaint from Allan Bakke. The school might have a justification for its admissions program, however, if it were to persuade the Court that a particular state interest was compelling.

* *

The defendant medical school asserted several interests it believed were compelling: One was an interest in “reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession.” A second was in countering the effects of “societal discrimination.” A third was in increasing the number of physicians who seek to practice in “underserved” communities.

But with none of the proposed interests did Powell agree. Not with the first, as it would threaten admissions quotas, which are unconstitutional; nor the second, as it would disadvantage applicants like [Bakke], who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered; nor the third, as in the record there was virtually no evidence indicating that Davis’s admissions program was needed or geared to promote that goal. The school, said Powell, “has not carried its burden of demonstrating that it must prefer members of particular ethnic groups over all other individuals in order to promote better health care delivery to deprived citizens.”

For Powell none of the three interests was “substantial enough to support the use” of a racial classification.” There was a fourth interest, however, that Davis asserted and which Powell described as “obtaining the educational benefits that flow from an ethnically diverse student body”—also put rather tersely as “the attainment of a diverse student body.” Powell was friendly to this interest, which he said was “a constitutionally permissible goal” for an institution of higher education.

Powell saw the interest in terms of the First Amendment and the academic freedom it protects. Nothing less than 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.” In seeking the “right to select those students who will contribute the most to the ‘robust exchange of ideas,’” a university aims “to achieve a goal of paramount importance in the fulfillment of its mission”— “the educational diversity valued by the First Amendment.”

Powell agreed with the medical school that this last interest—diversity, in short—was substantial and necessary. That did not make it legal, however. . . .

From a soon-to-be-finished essay on “diversity” in the law.

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