Defending Diversity: Affirmative Action at the University of Michigan

The Evolving Language of Diversity and Integration in Discussions of Affirmative Action from Bakke to Grutter

The Evolving Language of Diversity and Integration in Discussions of Af‹rmative Action from Bakke to Grutter Jeffrey S. Lehman U In December 1997, Barbara Grutter brought a lawsuit challenging the constitutionality of the University of Michigan Law School’s admissions policy. In June 2003 the United States Supreme Court issued its opinion in Grutter v. Bollinger, de‹nitively rejecting that challenge. I served as dean of the Law School throughout the ‹veand -one-half-year litigation, and my role gave me many opportunities to re›ect on the different factors that have made af‹rmative action such a dif‹cult issue. As one of the university’s public representatives throughout the litigation, I was often called upon to speak and write about the case. It was important to me that I be able to speak consistently— describing the issues in the same terms, regardless of whether my immediate audience was supportive or critical of our admissions policy. It was important that I be able to speak consistently with our published admissions policy. It was important that I be able to speak consistently with our court submissions. And it was important that I be able to speak in a way that I felt authentically captured the complexities of the issues. As I returned to the topic again and again, I found this to be an exceptionally challenging exercise. What made the topic so dif‹cult was the way in which Justice Powell’s opinion in Bakke had restricted the terrain on which university of‹cials could address af‹rmative action. A language that speaks only about the “educational bene‹ts of diversity” offers an incomplete vocabulary for talking and thinking about race and higher education. Over the duration of the lawsuit, therefore, I heard my own voice evolve. Most Americans resonate with the ideal of color blindness—that public and private institutions, and even individuals, should not allow their conduct toward a person to be in›uenced by that person ’s race or ethnicity. That ideal has found expression in many corners of our society, most notably in the legal doctrine that has interpreted the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Under that doctrine, departures from color blindness are not necessarily unlawful, but (to use the legal terms of art) they are always “suspect”; they demand justi‹cation in the form of a “compelling interest.” As I worked alongside many others to explain why, in the context of university admissions, carefully crafted departures from the ideal of color blindness can be both lawful and appropriate, I found myself referring more and more to an ideal that seems today to carry more resonance with most Americans than the pedagogic notion of diversity. More and more, I invoked the vocabulary of integration. The word diversity can feel somewhat one-dimensional , connoting only a property of racial heterogeneity that may or may not exist in a particular place at a particular moment in time. At least today, the word integration does a better job of capturing the special importance to our country of undoing the damaging legacy of laws and norms that arti‹cially separated citizens from one another on the basis of race. The enduring scars left by that history pose the greatest practical challenge to our nation’s prosperity and, for many, to its democratic legitimacy.1 A close reading of the Supreme Court’s opinion upholding our admissions policy reveals that, over the span of twenty-‹ve years Defending diversity 62 from Bakke to Grutter, the Court underwent a similar evolution. Justice Powell’s opinion in Bakke was succeeded by an opinion for the Court that drew on a more satisfying, weightier justi‹cation for universities’ departure from color blindness. The “compelling interest” is about more than just pedagogy. It is about the fundamental legitimacy of America’s approach to distributing educational opportunity. In this essay, I will trace the parallel evolutions of the vocabulary of Supreme Court doctrine and my own discussions of af‹rmative action in my role as a law school dean. I will begin with Justice Powell ’s opinion in Bakke and end with Justice O’Connor’s opinion in Grutter. In between, I will discuss the admissions policy adopted by the University of Michigan Law School in 1992 that became the subject of the litigation and then re›ect on several of my own public statements over...