Muller Mulls Scalia On Michigan

Eric Muller, a UNC law prof who is a temporary Volokh Conspirator, usually disagrees with Justice Scalia, but he was mightily impressed with a question Scalia asked the lawyer defending the University of Michigan’s law school admissions preferences.

He asked the lawyer for the University of Michigan’s law school a question that I thought was just plain fascinating. The Court’s precedents require that an affirmative action plan be in the service of a state interest that is “compelling” (rather than merely “legitimate”or “important.”) There is precious little law out there on the question of what makes an asserted interest rise to the level of “compelling.” Scalia’s thrust went as follows: The state of Michigan has decided that it wants to have not just a law school, but an elite law school — on a par with schools like Harvard, Yale, Stanford, Chicago, Columbia, NYU, Penn, Stanford, Berkeley, and the University of North Carolina. (OK, OK, I included that last one in case my dean is reading.) So, argued Scalia, while a state might have a “compelling” interest in racial diversity at some law school it runs, the State of Michigan does not have a compelling interest in diversity at this particular law school. At this particular law school, Scalia was implying, the only genuinely compelling interest should be its interest in achieving “academic excellence.”

This was something new, at least to my ears. I liked the fact that Scalia was pushing for clarity on the “compelling interest” piece of the analysis. For far too long, I think, the Court has been simply asserting that a particular state interest is compelling without telling us why, and I think some clarity and guidance here are overdue.

Now, if I had the character to refuse to succumb to self-promotion (one’s blog is one’s self, isn’t it?), I would refrain from pointing out that I made pretty much the same point here, and especially here, when I argued that if Michigan really believed “diversity” was as compelling as it claimed it could achieve it by changing its admissions requirements in perfectly race-neutral ways, such as reducing the importance of tests and grades:

… [M]erit is not a Constitutional imperative. The Constitution does not compel the University of Michigan to require the SAT, the LSAT, high grades, or any other measures that tend to diminish the number of minorities. The fact that Michigan obviously places a high value on merit as traditionally defined does not give it a license to engage in racial discrimination in order to preserve some of it.

Now that I’ve wallowed in self-promotion, let me cleanse myself (at least a bit) by hastening to add that, alas, I wasn’t being original either. My point was based directly on a point emphasized in the Solicitor General’s brief in the Grutter (law school) case:

Nothing in the Constitution prevents public universities from achieving these laudable goals because there are a variety of race-neutral alternatives available to achieve the important goals of openness, educational diversity and ensuring that all students of all races have meaningful access to institutions of higher learning. For example, universities may adopt admissions policies that seek to promote experiential, geographical, political or economic diversity; modify or discard facially neutral admissions criteria that tend to skew admissions results in a way that denies minorities meaningful access to public institutions; and open educational institutions to the best students from throughout State or Nation.

Michigan argues that racial preferences for selected minorities are “compelling” only because it is unwilling to sacrifice the traditional measures of merit — grades and test scores — for everyone else. But that argument assumes, as Scalia observed, that having a state law school that is competitive (by traditional measures of merit) with the best in the country is itself a “compelling” interest. But that view was assumed, not argued. Scalia and, er, others have argued that if the desire for “diversity” and the desire for excellence conflict, Michigan is perfectly free to choose which to pursue.

Muller points out that, in Michigan’s view as well as his own, this either-or choice is false.

The State of Michigan, of course, contends just the opposite; its position is that racial diversity is one crucial component of elite-level academic excellence. I’m inclined to agree….

At this point the pro-preference argument seems to reduce to one of academic freedom: universities should be free to define academic excellence for themselves without being second-guessed by courts. But since we would not be hearing that argument from the same quarters if, say, David Duke State University determined that “diversity” detracted from academic excellence, the academic freedom argument doesn’t really work.

There is no escaping the fundamental question of whether we want to carve a gaping and permanent “diversity” loophole into the principle of non-discriminatory equal protection. Indeed, this loophole looms so large that it would soon swallow the principle altogether, if it hasn’t already.

Others may find some solace in “D’s” observation on Sub Judice that the loophole has always been there and that Justice Harlan and all the others who have claimed that our Constitution is colorblind are wrong. I don’t.

Say What?