Amankwah, H A --- "Editorial Comment: Balancing the Racial Equation" [2003] JCULawRw 1; (2003) 10 James Cook University Law Review 4

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EDITORIAL COMMENT: BALANCING THE RACIAL EQUATION

The Affirmative Action Doctrine Revisited, Grutter v Bollinger

HA Amankwah

In Grutter v Bollinger[1] , the affirmative action doctrine like the proverbial phoenix bird rose out of its ashes in the US Supreme Court. The University of Michigan Law School’s policy that was designed to achieve diversity of a student body through compliance with the guidelines enunciated in Regents of University of California v Bakke[2] was attached by the petitioner as discriminatory and unconstitutional. It will be recalled that in Bakke’s case, Powell J rejected the argument that there was a public interest in a policy that takes race into account in order to rectify ‘the historic deficit of the traditionally disfavoured minorities in medical schools and in the medical profession’.[3] The public interest then was in ‘increasing the number of physicians who will practice in communities currently underserved’.[4]

Powell J, however, approved the University of California Medical School’s race-based educational policy that was specifically and intentionally tailored for the achievement of a diversified student body[5] because His Honour recognised that the future of the United States of America ‘depends upon leaders trained through wide exposure to ideas and mores of students as diverse as this Nation [USA] of many peoples’.[6]

In Grutter v Bollinger, O’Connor J delivered the opinion of the court, in which Stevens, Souter, Ginsburg and Breyer JJ joined, and in which Scalia and Thomas JJ joined in part insofar as it is consistent with the views expressed in Part VII of the opinion of Thomas J. Ginsburg J filed a concurring opinion, in which Breyer J joined. Thomas J filed an opinion concurring in part and dissenting in part, in which Scalia J joined as to Parts I–VII. Rehnquist CJ filed a dissenting opinion, in which Scalia, Kennedy, and Thomas JJ joined. Kennedy J filed a dissenting opinion.

O’Connor J, in her Honour’s lead opinion, said the Court would defer to the Respondent Law School’s ‘educational Judgement’ because as Her Honour put it, the Court had a ‘tradition of giving a degree of deference to a University’s academic decisions within constitutionally prescribed limits’.[7] The avowed aim of the Respondents was the assemblage of ‘a class that is both exceptionally academically qualified and broadly diverse’ and that includes a ‘critical mass of minority students’.[8]

The Respondent’s claim of a compelling interest for their policy was buttressed by amici curiae briefs filed by the American Educational Research Association on behalf of educational institutions and by General Motors Corporation on behalf of commerce and industry. High ranking retired civilian and military officers of the United States military deposed to the fact that ‘a highly qualified, racially diverse officer corps… is essential to the military’s ability to fulfil its principal mission to provide national security’.[9]

In accepting as substantial the educational benefits ‘that diversity is designed to produce’ when coupled with the concept of ‘a critical mass’ component of minority groups, her Honour said, echoing Brown v Board of Education[10] : ‘education … is the very foundation of good citizenship’.[11] Recognising the importance of the role of educational institutions in the national existence, her Honour pointed out: ‘In order to cultivate a set of leaders with legitimacy in the eyes of a citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.’[12]

Affirmative action — first developed in the 1960s as the antidote for poverty of minorities, racial inequity and urban blight — has all but vanished from the American political landscape. Its death knell was tolled by the Bakke case in which the Court upheld the petitioners claim that the University of California Medical School’s reservation of places for minorities in the Medical School in pursuance of its affirmative action program was unconstitutional as violating the Equal-Protection Clause of the 14th Amendment. Characteristically, and echoing the ‘reverse discrimination’ platitude, Powell J rejected any public interest in remedying societal discrimination and historic injustice by resort to affirmative action programmes because such policy ran the risk of placing unnecessary burden on innocent third parties ‘who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered’.[13]

The present decision is symbolic of affirmative action in a new garb. In the current American political climate, it comes as a shock. There is on the US Supreme Court today only one Justice, Ginsburg J, who embraces the liberalism and humanism of the Thurgood Marshall and William Brennan mould. The Court itself is a strange admixture of liberals and conservatives. Respondents’ Counsel therefore emphasised more, the advantages of racial diversity than crippling racial inequality. So it was that Justice Sandra O’Connor was won over to the liberal side of the Bench. Her Honour’s conversion resulted in the swing vote that tilted the scale of justice in favour of the Respondents. Significant as the decision is, especially in the extant political climate, it poses a dilemma: who are the real beneficiaries of the decision, one may ask? As Eric Foner aptly puts it:

The diversity argument presents affirmative action not as a program that primarily aids minorities but as one that improves the educational environment, a more politically palatable case. But it runs the risk of suggesting that access for non-white students is desirable mainly because it enhances the educational experience of whites by exposing them to classmates from different backgrounds. Diversity is undoubtedly a worthy goal. But a single-minded focus on diversity deflects attention from the need to combat the numerous inequalities to which Ginsburg referred.[14]

It is ironical that America’s international interests — trade and commerce and military hegemony — should be the sling that catapults racial equality to prominence domestically. However, against the backdrop of corporate globalisation (and its devastating effects of deindustrialisation and unemployment among the lower segments of society) and the military complex (which drives minorities into fighting in ignominious wars abroad as the only avenue to social advancement and respectability, nationally), we ponder, what has become of the Western values — equality, compassion and humanism — of which the USA was once the leading exponent?

HA Amankwah

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[1] [2003] USSC 4414; 539 US 1 (2003) (‘Grutter’).

[2] [1978] USSC 145; 438 US 265 (1978) (‘Bakke’).

[3] Ibid 306–7.

[4] Ibid 306, 310.

[5] Ibid 311.

[6] Ibid 313.

[7] Grutter[2003] USSC 4414; , 539 US 1, 16 (2003) .

[8] Ibid 17.

[9] Ibid 18–19.

[10] 247 US (1954) 483, 493.

[11] Grutter[2003] USSC 4414; , 539 US 1, 19 (2003).

[12] Ibid 20.

[13] Bakke[1978] USSC 145; , 438 US 265, 310 (1978).

[14] National Magazine 14 July 2003.

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