Ann Killenbeck, a professor at the University of Arkansas, offers a fresh perspective on Grutter v. Bollinger, in which the U.S. Supreme Court ruled the University of Michigan law school’s use of race in admissions was narrowly tailored to further a compelling interest in “obtaining the educational benefits that flow from” a racially diverse student body.
Killenbeck’s article, published in an academic journal, focuses on a rarely discussed aspect of Grutter, which she calls Bakke with teeth. From the press release:
“In Grutter, the court acknowledges that each institution has the right to adopt a mission and policies that embrace diversity as a central element of its educational objectives, Killenbeck said. But the proper use of admission criteria with this objective in mind will succeed only if an institution can show that use of such criteria reflects its mission and that benefits from diversifying its student body are actually occurring. In other words, simply adding admission criteria based on race preference, especially without being able to demonstrate relevant programming or outcomes, does not shield institutions and programs from legal challenges. Killenbeck said she would like to see a shift of perspective in which diversity is defined as the broad spectrum of characteristics, perspectives, values and assumptions associated with personal identity, rather than something that focuses solely on race and ethnicity. She argues that programs and policies that reduce people to a single denominator are unfortunate and shortsighted.
“She also argues, based on social science research, that it is not enough to simply admit a diverse group of students. Rather, institutions must engage in proactive programming designed to ensure that the values associated with diversity are actually realized. That is, what scholars call ‘structural diversity,’ simply having the right mix of students, is a first step in pursuing sound educational policies and practices that will benefit all students.”
Former Justice Sandra Day O’Connor, who wrote the majority opinion in Grutter, raised the legal standard for defending against challenges to racial preferences policies. Under University of California v. Bakke, the landmark racial preferences case before Grutter, schools had more wiggle room to justify the practice. Grutter requires schools to show real, rather than theoretical, educational benefits that justify accepting and denying students based on race.
Did Justice O’Connor intend to raise the legal bar for racial preferences?
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