In Grutter v. Bollinger, the Supreme Court ruled that the U.S. Constitution allows for race to be a factor in admissions decisions to further a compelling interest in student body diversity if the policy in question is narrowly tailored. Two prominent constitutional law scholars, Derrick Bell, and John Hart Ely, would criticize the majority’s ruling in similar and different ways. Ely provides a useful starting point for equal protection jurisprudence and a procedural framework centered around the prejudice of the majority towards a minority. However, Bell takes the issue a big step further to address social inequities and systemic barriers to more minorities in higher education which both Ely and the majority in Grutter neglect.
Ely believes that the role of the court is to make sure the political process of generating laws and policy is fair, especially for ‘discrete and insular’ minorities. For him, an equal protection challenge involving a suspect class arises when a law is intentionally designed to hurt a minority group or when it is based on inaccurate stereotypes of a minority group. When either of these prejudices is used to craft legislation, there is a suspect classification and heightened scrutiny should be applied, according to Ely. With affirmative action, the policy is crafted by the majority, so there is likely no intentional desire to hurt a group as the group being hurt is the majority itself. In a similar vein, the policies are not based on stereotypes of a group as it is the negatively conflicted group itself making the policy. The policies are also designed to help minority groups rather than hurt them. Ely would criticize the majority for rooting its decision in a compelling interest in diversity rather than what he sees as the core of the equal protection clause: that the majority in a community cannot exclude a minority and intrude on its rights. Hence, since no minority group is being harmed by the majority, Ely would affirm affirmative action as constitutional.
Bell would agree with Ely that laws based on stereotypes of minorities or that intentionally subordinate minority violate the Equal Protection clause. They both would say that the reasoning of the majority is incorrect as the equal protection challenge should not be about the interest of the school in achieving diversity. However, this is obvious to Bell and he would dislike Ely’s procedural approach because it is narrow and simplistic. Ely’s approach does not include the history of systemic oppression against minorities. Ely also does not address racial barriers to education and neither does the majority opinion. Bell’s approach emphasizes that racism in America is not a temporary occurrence but that it is deeply rooted and a permanent feature of society. Hence he would criticize the majority ruling in a different way, with an emphasis on the underlying structures of racism that the majority opinion fails to address.
Bell also argues Brown’s majority opinion focused on one side of the race equation—how blacks were subordinated by segregation—with no mention of how whites benefited from racial segregation. Applying Bell’s logic to Grutter, there are benefits already awarded to whites in college admissions that he would argue the court overlooks. Beyond race, law school admissions rely deeply on test scores. Often, high scorers on standardized tests such as the LSAT are from families that can afford expensive test prep courses. These wealthy individuals also tend to be white. Bell would contend that the majority opinion enables the school to keep unfair admissions standards such as the LSAT that innately give preference to whites while utilizing affirmative action as a make-believe way of helping minorities. Just as Bell described the Plessy fiction of separate but equal, the Grutter court holds the fiction of affirmative action and the interest of diversity to be enough in achieving racial justice. If Michigan relied less on criteria that inherently privilege white, wealthy applicants, they would not need an affirmative action policy. Yet, Bell would also point out that reducing reliance on these admissions standards does not serve the majority’s interest so they use affirmative action as a cover for achieving diversity. This differs from Ely’s criticism which would not include an analysis of the institutional roots of racism and the systemic barriers to education for minorities in society. It would stop at the tip of the iceberg of racism, rather than pounce at its underbelly.
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Bell critiqued the Brown majority for avoiding the discussion of socioeconomic class. He argued race was a veil to an obscure conversation about a class where rich whites are able to control poor whites in society. He says blacks are ‘othered’ in a way that enables poor whites to effectuate their own racial integrity and neglect to see the economic plight they suffer because of rich whites. In Grutter, Bell would highlight the irony that poor whites are disadvantaged like poor minorities in the college admissions process yet tend to attack affirmative action policies instead of the real barriers of wealth and privilege. Neither poor whites nor poor minorities have the money to pay for the expensive test classes that can solidify admission to a top school. The main population that can pay for these classes is rich whites. Bell would add that these systemic obstacles for poor people will not be removed until they are seen to serve the interests of white people and the state. Bell would conclude rich whites have deluded poor whites into demonizing affirmative action but not the unfair admissions standards that harm them much more.
In a similar vein, Bell would criticize the majority in Grutter for not discussing the centuries of legally-sanctioned racism and discrimination blacks have endured. Rather, they address the value of diversity in higher education which diverts attention from racial justice and correcting a long history of oppression. Putting more focus on diversity also shifts from the fact that many students of color do not reach college because of poverty. Bell would say that the focus on diversity rather than socioeconomic equality and opportunity will keep minorities entrenched in poverty and block their advancement in society.
Ely’s criticism of the majority in Grutter wouldn’t go beyond saying that their reasoning for achieving diversity is flawed. He would say that since no group that is politically powerless is being discriminated against, there is no equal protection violation. Bell would instead elevate the issue by critiquing the majority for their appreciation of increasing diversity being rooted in the benefits for the state and society rather than for minorities. In his dissent against Brown, Bell argued that the main reason the court granted civil rights was that it was in the interest of the state to do so. American foreign policy was at stake as communist nations spread anti-American propaganda for its hostile treatment of racial minorities. Similarly, the majority in Grutter cites the benefits to society from minorities receiving preferential treatment. O’Connor outlines how a diverse student body better prepares students as professionals, benefits institutions like the military, and helps train the nation’s future leaders. This highlights Bell’s point from his Brown dissent that racial minorities will not receive any relief for historical racism until helping them means helping advance a superior state interest. The companies and military institutions that the majority cites as supporting a diverse and educated workforce are the impetus for the majority’s ruling, not the continuous racial and socioeconomic barriers to higher education for minority applicants. Bell would say that minorities are lucky in this case as they benefit from policies that the court upholds for reasons other than their socioeconomic progress.
Both Ely and Bell would criticize the majority for their 25-year expiration date on affirmative action but for different reasons. The majority says that eventually affirmative action would no longer be necessary but does not say that this would be because racial equality has been achieved. Ely would contend that until minorities have achieved equality with whites, affirmative action is permissible. Bell, on the other hand, would say that the end of affirmative action will come when the policy no longer serves the interests of the majority and the state.
In conclusion, both Ely and Bell would take issue with the majority opinion’s reasoning for its judgment, but for different reasons. Ely would criticize the majority opinion for not conducting his specific procedural analysis and instead rooting its argument in a compelling interest analysis. He would also disagree with the application of strict scrutiny, as he would see no suspect classification in Grutter. In contrast, Bell would criticize the majority for using diversity as the end and affirmative action as the means, which gives colleges a lifeline to keep unfair admissions policies in place. As a result, the majority of applicants who are admitted to top schools will remain ones coming from wealth and privilege.
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