The "Critical Mass" Mess

Two weeks have passed since the Supreme Court handed down its momentous decision on the Michigan affirmative action cases. While the Court's highly political "split decision" has prompted much discussion, nearly all commentary has overlooked the simple fact that the Court has read into constitutional doctrine a new and potentially powerful justification for race-based quotas in educational settings. In embracing the right of universities to seek a "critical mass" of minority students, Justice O'Connor's majority decision in Grutter v. Bollinger (the law school case) opened a door better left shut.

Analysis thus far has focused on the fact that the Court endorsed the principle of affirmative action but struck down strict formulas for achieving it and on the implied "twenty-five year" time limit on affirmative action. Meanwhile, observers have been slow to note that the Grutter decision serves to make numerical targets for race-based enrollment newly defensible.

In adopting the doctrine that diversity requires schools to attract "meaningful numbers" (a "critical mass") of minority students, the Grutter majority took a concept that had enjoyed little standing and stamped it with a constitutional imprimatur. Schools, colleges, and universities can now argue that efforts to attract "enough" minority students do not reflect a race-based agenda but an adherence to the meaningful diversity.

O'Connor's decision noted several justifications for schools to assemble a "sufficient number" of underrepresented minorities, including the need to ensure that minority students do not feel isolated or required to act as spokespersons for their race, that all students enjoy adequate opportunities for diverse interaction, and that all students are challenged to reexamine stereotypes. Toward that end, Michigan is empowered to seek "enough minority students to provide meaningful integration of its classrooms and residence halls."

What does this mean in practice? Pending further clarification from the Court, this is presumably one of the "educational" determinations left to the expertise of educational institutions.

Prior to Grutter, race-based enrollment goals were understood to constitute impermissible quotas. In endorsing "critical mass", O'Connor reopens the question. Particularly galling is that the Grutter majority's rationale for upholding narrowly tailored affirmative action did not require it to raise the issue at all.

Post-Grutter, schools and universities can readily argue that they need to attract a "critical mass" of minority students in order to achieve the full benefits of diversity and that such a practice is distinct from establishing "old-fashioned" quotas.

The danger is particularly stark because, as Justice Rehnquist's dissent scathingly observed, the concept of "critical mass" is never given definite form. Instead, its meaning is left open to future suits in which judges will be asked to differentiate a "critical mass" from a quota.

How the courts are to gauge the permissibility of efforts to assemble a sufficiently large group of Latino, Native American, or African-American students is unclear. After all, if universities or K-12 magnet schools are found to weight race ten or twenty times as heavily other "soft" considerations, like geography or artistic ability, institutions are newly able to argue that this is not because they are necessarily trying to advantage students of one race but only the incidental byproduct of assembling a minority population large enough to foster "real" diversity. Given the ambiguity of what "critical mass" means, it is not yet clear on what grounds a court might reject this claim.

If an educational institution has general "targets" of enrolling at least 20 percent underrepresented minorities or at least 9 percent African-Americans, it can explain that, in its "expert" judgment, such a cohort is required to create a critical mass of diversity. So long as the institution is careful not to commit these targets to paper, it may well be on solid ground. In short, "critical mass" resurrects quotas in less garish guise.

When it comes to "critical mass" it is not clear that the Grutter majority meant what it said or realizes what it has wrought. However, when the smoke clears we may see that--rather than bringing nearer the day when race-conscious policies will be a faint memory--the Court has ushered in a new era of quiet quotas.

Frederick M. Hess is a resident scholar at the American Enterprise Institute.

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