Idea Diversity

Now that the U.S. Supreme Court, as widely anticipated, has agreed to hear Grutter v. Bollinger, 2002 U.S.Lexis 8677 (U.S. Dec. 2, 2002), a rejected white applicant's challenge to the University of Michigan Law School's race-conscious admissions policy, the betting money remains that the court will strike down the policy as unconstitutional.
        In 1978, the court handed down Regents of the University of California v. Bakke 438 U.S. 265 (1978), a splintered opinion generally interpreted to hold that achieving a diverse student body by considering race as one factor in the admissions process satisfies a compelling state interest.
        Since Bakke, however, the court consistently has viewed programs that factor race into allocation of benefits with suspicion. For example, in City of Richmond v. J.A. Croson Co. 488 U.S. 469 (1989), the court, in evaluating a city's numerical set-aside program for minority businesses, concluded that "racial classifications are unconstitutional unless they are intended to remedy carefully documented effects of past discrimination."
        For those who view considering race in admissions a derogation from an otherwise merit-based, neutral process, Grutter is the long-anticipated opportunity to extend the reasoning of City of Richmond to university admissions policies and end ill-conceived and unfair efforts to achieve campus diversity.
        But as clear as this trend is, an alternative possibility is imaginable: The court, recognizing the unique nature of universities and their distinctive interests in promoting diversity, might defer to Michigan's efforts and uphold its admission policy.
        Regarding the university's interest in diversity, there are three related goals the court might consider, as described by Yale law professor Jack M. Balkin:
• Demographic diversity, ensuring that a broad cross-section of the population receives an opportunity to obtain an education at the university.
• "Diversty as community," ensuring that "people from the different groups in American society learn to live with and work with one another"; and
• " Diversity of perspective," the cultivation of an atmosphere in which different histories, experiences and ways of living give rise to a diversity of ideas.
        It is particularly the third - developing "diversity of perspective" - that resonates for universities. The historical mission of the university is to cultivate free thought through free speech, free association and academic freedom. Admitting students from a wide range of backgrounds and social experiences is calculated to propagate diverse perspectives and, in turn, diverse ideas.
        Commensurately, the court, in the Fourteenth Amendment equal-protection context of Grutter, might regard diversity of perspective as an elevated, compelling interest of a state university and view intelligent consideration of an applicant's race as it bears on campus diversity as an appropriate means to that end. It would not be entirely surprising because recently the court, in a First Amendment context, did something similar.
        In Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), a student challenged a mandatory student activity fee imposed on him and other students. The fee was used to support the political or ideological speech of student organizations. The backdrop of the student's challenge was the University of Wisconsin, Madison, whose motto urges students to separate "wheat from chaff."
        Because student fees generously fund every viewpoint imaginable there, the University of Wisconsin has become the über-areopagitica of idea competition. It is impossible for a student to walk from dorm to cafeteria to class to library to student union without being provoked by numerous exhortations, calls to meetings, debates, protests and all forms of organized and disorganized alternative points of view.
        No matter how insulated or self-involved a student is at the beginning of his or her studies, within weeks the Madisonian will be passionately involved in at least one cause célèbre. For most students and alumni, the idea-rich environment yields valuable wheat. For the student challenging student fees, however, the compulsorily funded political messages were worse than chaff - profoundly objectionable and offensive, and, therefore, a cause constitutionnel.
        Recognizing method in the madness, though, the court nonetheless upheld the program, providing that adequate procedures were in place to ensure that funding allocation remained viewpoint-neutral. Justice Kennedy, joined in the majority by Chief Justice Rehnquist and Justices O'Connor, Scalia, Thomas and Ginsburg, noted that "recognition must be given ... to the important and substantial purposes of the university, which seeks to facilitate a wide range of speech."
        Justice Kennedy added: "[The] speech the university seeks to encourage in the program before us is distinguished not by discernible limits but by its vast, unexplored bounds.
         "To insist upon asking what speech is germane would be contrary to the very goal the university seeks to pursue. It is not for the court to say what is or is not germane to the ideas to be pursued in an institution of higher learning." (Emphasis added.)
        In a concurrence backed by Justices Stevens and Breyer, Justice Souter emphasized the importance of a university's ability to define its own mission, quoting former Justice Felix Frankfurter, who, in turn, once quoted a statement on open universities in South Africa:
         "It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which prevails 'the four essential freedoms' of a university - to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study," Frankfurter quoted.
        Thus there is a basis rooted in academic freedom whereby the court might conclude that a university has a compelling interest in determining "who may be admitted to study," specifically for the purpose of developing "diversity of perspective."          Alternatively stated, benign consideration of race in university admissions is instrumental in promoting diversity of perspective and ideas, and therefore an element of academic freedom. If the court shows the same deference to Michigan as Wisconsin in developing diversity of perspective, all bets regarding the outcome in Grutter are off.