California Law Review Volume 94|Issue 2 Article 5 March 2006 Stigma's Opening: Grutter's Diversity Interest(s) and the New Calculus for Affirmative Action in Higher Education Joshua M. Levine Follow this and additional works at:https://scholarship.law.berkeley.edu/californialawreview Recommended Citation Joshua M. Levine,Stigma's Opening: Grutter's Diversity Interest(s) and the New Calculus for Affirmative Action in Higher Education, 94 Calif. L. Rev. 457 (2006). Link to publisher version (DOI) https://doi.org/10.15779/Z38WH80 This Article is brought to you for free and open access by the California Law Review at Berkeley Law Scholarship Repository. It has been accepted for inclusion in California Law Review by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact [email protected]. Stigma's Opening: Grutter's Diversity Interest(s) and the New Calculus for Affirmative Action in Higher Education Joshua M. Levinet INTRODUCTION "In summary, the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."1 So concluded Justice Sandra Day O'Connor's ma- jority opinion in Grutter v. Bollinger upholding the University of Michigan Law School's affirmative action policy. Affirmative action in higher edu- cation, it seems, is now on more solid ground because a majority of the Court for the first time has endorsed Justice Lewis Powell's lone opinion in Regents of the University of California v. Bakke' affirming the value of diversity in such a setting.' Bakke was the first-and before Grutter, the only-case in which the Supreme Court examined the constitutionality of affirmative action in the context of university admissions. Since O'Connor herself referred to the Bakke decision and wrote that "today we endorse Copyright © 2006 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t J.D., School of Law, University of California, Berkeley (Boalt Hall), 2005. Email: [email protected]. I am deeply grateful to Professor Goodwin Liu for being so generous with his time, feedback, and kindness during the development of this project. t am indebted to David Alban, Shawn Bayern, Michael Gilbert, Pop Kessler, Emily Pan, and Emily Zarins for their help at various stages. I have also benefited from my conversations with countless others about the Michigan cases and the overall topic of affirmative action. The people I just thanked do not necessarily agree with everything contained in this Comment and should not share the blame for any of its shortcomings. 1. Grutter v. Bollinger, 539 U.S. 306, 343 (2003). 2. 438 U.S. 265 (1978). 3. Four other Justices signed on to O'Connor's opinion, but six Justices in total seem to have accepted the diversity rationale. Justice Kennedy wrote separately in Grutter to state that he agreed with Chief Justice Rehnquist's dissent that the Court's opinion did not really apply strict scrutiny because it accorded too much deference to the University of Michigan. Yet he also agreed with the majority that diversity is a compelling state interest. See Grutter, 539 U.S. at 387-88 (Kennedy, J., dissenting). CALIFORNIA LA W REVIEW [Vol. 94:457 Justice Powell's view that student body diversity is a compelling state in- terest that can justify the use of race in university admissions, 4 it would be only natural to think of her decision for the Court as an emphatic endorse- ment of Powell's opinion twenty-five years earlier. Could Justice O'Connor have been any clearer about what Grutter stands for? How can we not take her at her word? Most of the mainstream press and legal commentary surrounding the Court's decisions in Grutter and its companion case, Gratz v. Bollinger5, agreed that the Court, through O'Connor's majority opinion in Grutter, firmly endorsed Powell's Bakke opinion for the first time-and that this was Grutter's significance.6 I concur in part and dissent in part. Although Bakke's diversity interest survived and gained the support of a majority of Justices in the Michigan cases, this common account of these cases fails to capture the full significance of what O'Connor's Grutter opinion really did. Contrary to O'Connor's seemingly conclusive statements, Grutter's reasoning relied on much more than the educational benefits of diversity, 4. Id. at 325 (majority opinion). 5. 539 U.S. 244 (2003). 6. See, e.g., Susan Low Bloch, Essay, Looking Ahead: The Future of Affirmative Action, 52 AM. U. L. REV. 1507, 1513 (2003) (stating that the Court in Grutter "made the very significant decision that the University's desire to achieve diversity in its student body was in fact a compelling governmental interest, relying heavily on the reasoning of Justice Powell's lone opinion in Bakke"); Erwin Chemerinsky, October Term 2002: Value Choices by the Justices, Not Theory, Determine Constitutional Law, 6 GREEN BAG 2D 367, 369 (2003) ("The bottom line is that the Court adhered to the position articulated by Justice Lewis Powell in Bakke a quarter century ago: Diversity is a compelling interest in education and universities may use race as a factor to ensure diversity, but quotas or numerical quantification of benefits is impermissible."); Linda Greenhouse, In a Momentous Term, Justices Remake the Law, and the Court, N.Y. TIMES, July 1, 2003, at Al ("Justice O'Connor's majority opinion in Grutter v. Bollinger ... found that the program, both in its operation and in its diversity rationale, comported with the controlling opinion by Justice Lewis F. Powell Jr. in the Bakke case 25 years ago."); Editorial, Supreme Court Quotas, WALL ST. J., June 24, 2003, at A16 ("In a part of his [Bakke] opinion that was joined by no other Justice, Powell argued that 'diversity' is a compelling state interest.... Now Justice O'Connor, writing for the majority on the law-school case, has given that view the fifth vote it needed to become the law of the land."); Peter Schuck, Reflections on Grutter, JURIST, Sept. 5, 2003, http://jurist.law.pitt.edu/forum/symposium-aa/schuck.php ("The Grutter majority famously ratifies Justice Powell's embrace in Bakke of student diversity as a compelling state interest sufficient to justify university admissions preferences .... "); cf Vikram David Amar & Evan Caminker, ConstitutionalS unsetting?: Justice O'Connor's Closing Comments in Grutter, 30 HASTINGS CONST. L.Q. 541, 548 (2003) ("The centrality of Justice Powell's Bakke opinion is further illustrated by how tightly Justice O'Connor's writing in Grutter tracks not only Powell's reasoning, but also his exact language. Even putting aside the part of the Grutter opinion before the Court said it was endorsing Powell's approach, Justice O'Connor quoted extensively from Justice Powell a whopping sixteen times. To endorse and cite a case and suggest independent agreement with it is one thing; to cannibalize all its key formulations suggests that the case is doing a great deal of the work."). But see, e.g., Kenneth L. Karst, The Revival of Forward-Looking Affirmative Action, 104 COLUm. L. REV. 60, 60 (2004) ("The Grutter opinion also takes the Court a step further, justifying affirmative action for a purpose Justice Powell had not mentioned."); Robert C. Post, The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 59 (2003) ("Although Grutter casts itself as merely endorsing Justice Powell's opinion in Bakke, Grutter's analysis of diversity actually differs quite dramatically from Powell's."). 2006] STIGMA 'S OPENING and in doing so went far beyond the bounds of the diversity rationale in Powell's Bakke opinion. While some say the most significant change the Michigan cases brought to bear on affirmative action law and policy was their emphasis on the need for "individualized" admissions procedures, this Comment argues that the real legal significance of Grutter is that it not only reaffirmed the diversity rationale in Bakke but also gave two addi- tional rationales for affirmative action-not only the benefits for white people and universities, but also the benefits both for society at large and for racial minorities.7 Another common view of Grutter, at least among some of the most ardent supporters of affirmative action, was that Justice Clarence Thomas's dissenting opinion was merely the emotional rant of an angry, ungrateful African American who had benefited from affirmative action but now sought to pull up the ladder behind him.' Specifically, these commentators pointed to his arguments regarding affirmative action's stigmatizing effects as being personal and somehow less than legal in character.9 This, too, is a 7. On this subject, Professor Goodwin Liu's definitions are useful and apply to my Comment as well: Although I use the term "minority" to label applicants who benefit from affirmative action and the term "white" to label those who do not, I recognize that some minority applicants do not benefit from affirmative action and that some affirmative action programs may benefit disadvantaged whites. Given this reality, it is probably more precise to use the generic terms "preferred" and "nonpreferred" applicants. But I stick to the terms "minority" and "white" in order to track the usage in common discourse on affirmative action. Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 MICH. L. REV. 1045, 1046 n.7 (2002). Minority applicants who "do not benefit from affirmative action" refers to members of those minority groups not "preferred" by universities-those groups that are not "underrepresented" and, accordingly, for whom no "plus" is given in admissions. 8. See, e.g., Maureen Dowd, Editorial, Could Thomas Be Right?, N.Y. TIMES, June 25, 2003, at A25 ("[Thomas] knew that he could not make a powerful legal argument against racial preferences, given the fact that he got into Yale Law School and got picked for the Supreme Court thanks to his race. So he made a powerful psychological argument .... The dissent is a clinical study of a man who has been driven barking mad by the beneficial treatment he has received."); cf Mary Kate Keamey, Justice Thomas in Grutter v. Bollinger: Can Passion Play a Role in a Jurist's Reasoning?, 78 ST. JOHN'S L. REV. 15, 26 n.67 (2004) (recounting other opinion articles strongly criticizing Thomas's dissent). 9. See, e.g., Michael C. Dorf, The Supreme Court's Divided Rulings in the University of Michigan Affirmative Action Cases: What Does it All Mean?, FINDLAW'S WRIT, June 25, 2003, http://writ.news.findlaw.com/dorf/20030625.html ("Is Justice Thomas a Radical Egalitarian? No, He's Just Angry.... [T]he real heart of Justice Thomas's dissent in Grutter is more personal. He harbors an almost visceral hatred for what he terms 'know-it-all elites.' ... How did this graduate of Yale Law School come to despise the sort of institution that opened so many doors for him? The answer, it seems, is that he believes affirmative action stigmatizes not only its beneficiaries, but all people of color .. "). Doff does, however, acknowledge that Thomas "has a point" in that stigmatization occurs. ld. For similar arguments, see also Dowd, supra note 8; Kearney, supra note 8, at 24-26, 35 (describing Thomas's stigma argument as part of a "move away from the legal analysis of the earlier sections of his opinion" and characterizing it as a "a more personal critique of the majority's analysis," though finding Thomas's rhetoric appropriate in that its "passion... infused his reasoning with a power that is difficult to ignore"). CALIFORNIA LAW REVIEW [Vol. 94:457 misconception, and it is related to the one above. Part II of this Comment explains how the O'Connor and Thomas opinions in Grutter shed impor- tant light on one another and ought to be read together to understand the path the legal and policy debates over affirmative action (at least in the education context) will likely take in the coming years. In doing so, Part II demonstrates that Thomas's dissent was a legal response to O'Connor's rationale that diversity in education benefits racial minorities; among other things, Thomas's opinion asserted that the affirmative action does "positive injury" to those it purportedly aims to help.1" Chief among these injuries to minorities is the stigma carried by those whom affirmative action policies supposedly help.11 Part II shows how the old Bakke diversity rationale did not leave an opening for this counterargument, but that O'Connor's new diversity rationales allowed Thomas to legitimately advance his argument of racial stigma. If stigmatic harm ends up undermining the diversity ra- tionale for racial minorities, this would raise important questions about the very nature of the Grutter diversity interest(s) that are currently the law of the land. Contrary to the conventional wisdom, Grutter may actually be weaker than Bakke. In short, Part II demonstrates how affirmative action in higher education has a new constitutional calculus after Grutter. Part III begins to illustrate stigma's opening into this new calculus. Building on the doctrinal analysis of the first two sections, Part III exam- ines the potential for a lawsuit challenging the constitutionality of a univer- sity's affirmative action program because of the stigmatic injury it causes racial minorities.'2 Under the normal affirmative action litigation paradigm, the plaintiffs are white people who were not admitted to a selective univer- sity, supposedly as a result of affirmative action.13 Part III lays out a new model in which the challengers are racial minorities applying to a selective university with an affirmative action policy who would be admitted to the university during, but not necessarily because of,4 the affirmative action 10. Cf Grutter v. Bollinger, 539 U.S. 306, 350 (2003) (Thomas, J., concurring in part and dissenting in part). 11. This argument goes against the assumption widely held by both conservatives and liberals that affirmative action policies benefit racial minorities and harm whites. Indeed, the question is often how much whites are harmed and how much racial minorities are helped. For example, in the context of admissions chances, see Liu, supra note 7. 12. Professors Eric Posner and Adrian Vermeule have observed that "there are few, if any,... examples of challenges to race-based affirmative action programs by beneficiaries claiming that the program is stigmatizing or demeaning. The stigma critique of affirmative action remains mostly a rhetorical trope of its opponents rather than a litigated issue for the courts." Eric A. Posner & Adrian Vermeule, Essay, Reparationsf or Slavery and Other HistoricalI njustices, 103 COLUM. L. REV. 689, 724 (2003). As a result, "the absence of litigated challenges to race-based preference schemes by beneficiaries also means that the relevant legal questions are largely terra incognita." Id. at 724-25. Part III of this Comment aims to begin to map this terrain. 13. See generally Liu, supra note 7. 14. Cf infra Parts III.A.l.a (hypothetical plaintiff Adams) and llI.A.l.b (hypothetical plaintiff Baker). 2006] STIGMA 'S OPENING policy's existence. Part III opens with an inquiry into the standing of vari- ous hypothetical plaintiffs, not only to raise doctrinal challenges and other issues associated with bringing such litigation, but to look more closely at the kinds of stigmatic injury that may be asserted. It then examines the stigmatic challenge under the new, post-Grutterc alculus set forth in Parts I and II, raising issues that may arise under both the compelling interest and narrow tailoring prongs of strict scrutiny.5 For example, what kinds of in- formation can be used to help determine whether stigmatic harm defeats a compelling interest? Are there ways to acknowledge stigmatization but narrowly tailor affirmative action policies to minimize or eliminate it? The ambition of this Comment is to present an alternative account of the diversity interest(s) in Grutter, and therefore an account of what the Michigan cases may mean for the future legality of universities' affirma- tive action programs. As such, it is mainly an analytical examination of what Grutter leaves open. This Comment concludes, however, with a few thoughts on why this opening-stigma's opening, in particular-is a posi- tive development. But regardless of what one thinks of the merits of this opening, Grutterh as wrought a significant doctrinal change that future liti- gants and others would do well to heed. Since future cases will inevitably build on the experience of the most recent ones, this Comment ultimately concludes by setting forth some lessons the Michigan litigation ought to teach both sides of the affirmative action debate, offering some predictions and recommendations to point a way forward for the next twenty-five years of litigation and policymaking under the new calculus. I DIVERSITY RELOADED: FROM BAKKE TO GRUTTER A. Powell and Bakke: The EducationalB enefits of Diversity The diversity interest that Powell's Bakke opinion endorsed was a nar- row one, based on pedagogical concerns and rooted constitutionally in Jus- tice Felix Frankfurter's "four essential freedoms" for academia- specifically, a university's freedom "to determine for itself on academic grounds ... who may be admitted to study."'6 As Powell wrote, "The atmosphere of speculation, experiment and creation-so essential to the quality of higher education-is widely believed to be promoted by a 15. Racial classifications are constitutional "only if they are narrowly tailored to further compelling governmental interests." Grutter, 539 U.S. at 326. 16. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (opinion of Powell, J.) (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring) ("It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail 'the four essential freedoms' of a university-to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.")). CALIFORNIA LA W REVIEW [Vol. 94:457 diverse student body."17 Powell extolled the value of diversity in the class- room-the educational benefits students derive from coming into contact with diverse viewpoints and the resulting "robust exchange of ideas." 8 Such interactions, Powell noted, are central to the mission of universities. Writing one year after the Bakke decision, Vincent Blasi wondered whether Powell's opinion, which bridged two camps of four Justices each, actually rested on any theory. Blasi concluded that "Mr. Justice Powell does have a theory. It is a theory which requires that admissions programs treat minority-race applicants as persons who have something valuable to contribute to the educational environment rather than as persons who need special help."'9 This is a fair characterization, and it is also revealing about the scope of Powell's opinion; such a theory, while not necessarily patron- izing to racial minorities or viewing them as inferior, is vulnerable to the charge that it does not seem to really care about benefiting them either. The Bakke diversity rationale, with its emphasis on minorities' "contribut[ion],""0 is about the use of people of color to advance the uni- versity's educational goals for its (mostly) white students. To illustrate this argument, imagine two portraits of a classroom on a selective university's campus. The first portrait--"Before"-is of a class- room without affirmative action, and the second portrait-"After"-is the same classroom with affirmative action. In the "After" portrait, which has far more people of color than "Before,"2 the students who actually encoun- ter this change and now benefit from the more "robust" learning environ- ment (which to Powell was affirmative action's only permissible rationale) are the (mostly) white students who were in the first picture. Powell's di- versity rationale is really a description of the benefits of diversity for (mostly) white people; in other words, the benefits from the vibrant "exchange of ideas"22 described above are for those students already there at the university. To be generous to Powell, it can be argued that the bene- fits from affirmative action for racial minorities were assumed-after all, they gain admission and access to the institution. But the Bakke decision concerns the educational benefits of diversity as a compelling interest- and the educational experience that is supposedly improved in Generic University's classrooms, compared to the earlier educational experience without affirmative action, is that of (mostly) whites.23 17. Id. 18. Id. 19. Vincent Blasi, Bakke as Precedent: Does Mr. Justice Powell Have a Theory?, 67 CALIF. L. REV. 21, 67 (1979). 20. See id.; Bakke, 438 U.S. at 313 (opinion of Powell, J.). 21. See also infra notes 216-217 and accompanying text. 22. Bakke, 438 U.S. at 312 (opinion of Powell, J.). 23. My use of the portrait imagery should not be construed as an argument that diversity is solely an aesthetic interest. Cf When Logic Fails, SLATE, Email from Walter Dellinger to Dahlia Lithwick, June 25, 2003, http://slate.msn.com/id/2084657/entry/2084857 (anticipating that valuing the "turn to 2006] STIGMA 'S OPENING To justify affirmative action in terms of its benefit to the racial major- ity seems odd at best and constitutionally questionable at worst.24 It is vul- nerable to the charge that the "academic freedom" logic underlying it has no logical endpoint: what can the university not do to attain the educational benefits of diversity? It is also vulnerable to the argument that the rationale itself should focus on racial minorities because of past injustices and their ongoing vestiges.25 Finally, the rationale is vulnerable to the charge that it uses minorities as props-voices of difference present solely to further the education of whites.26 The rationale, by not addressing the benefits to racial minorities, seems to allow universities to invite in certain students not (mainly) to study medicine or law but with an ulterior motive: to educate their fellow students. Technicolor" of the photographs of Duke Law School classes from the 1960s to the 1970s would be criticized by Justice Thomas as evidence of "racial aesthetics," and responding that "the vibrancy of the more recent class pictures is reflected in the classroom"). My point is that the difference that accounts for this change in "vibrancy" is that more racial minorities are in the picture and that the improved classroom experience is only "improved" for the group that would be there before-that is, for (mostly) whites. 24. It would also call into doubt some theoretical justifications for affirmative action. For example, if affirmative action were actually for the racial majority, its more relaxed scrutiny under John Hart Ely's theories would be imperiled. See John Hart Ely, The Constitutionality of Reverse Racial Discrimination,4 1 U. CHI. L. REV. 723, 727 (1974). 25. Cf DERRICK BELL, RACE, RACISM, AND AMERICAN LAW § 5.12.1, at 208 (5th ed. 2004) ("Justice Powell obviated the need for past discrimination by including minority admissions within the broad range of discretion that universities have long exercised in the admissions process to obtain, inter alia, diversity in the admitted student body. Thus, those minorities admitted are not receiving a benefit because of past discrimination, but rather are simply adding to the diversity of their classes."). According to Bell, "[tihe Grutter majority accepted Justice Powell's rationale," id., a characterization I contend does not fully capture what the Grutterm ajority did. See infra Part I.B. 26. E.g., CHARLES R. LAWRENCE III & MARI J. MATSUDA, WE WON'T Go BACK: MAKING THE CASE FOR AFFIRMATIVE ACTION 27 (1997). Speaking from white society's point of view, the authors say sarcastically: We also recognize that it would help the children of the powerful to learn more about the nonwhite world if a few nonwhites were around, but we will decide whom to invite. We will decide who is qualified to serve our purpose of creating an environment where we can learn what we need to know about them. Id. Responding to the charge "that students in effect serve as their professors' educational 'instruments,' to be used to develop points the professor believes germane to the topic of the course," Professor Sanford Levinson says he plead[s] guilty ....I believe that teachers often, and properly, do attempt to draw on the experiences of their students in order to illuminate matters under discussion .... One need not believe that students should be appointed full professors in order to recognize that even the most untutored first-year student may, because of his or her own life experiences, have something valuable to contribute to a particular classroom discussion. SANFORD LEVINSON, WRESTLING WITH DIVERSITY 41 n.98 (2003). Levinson surely is not alone in this belief. However, it is one thing to say that students teaching each other is good pedagogically; it would be quite different to say that this is the reason those student-teachers should be there-that this is a rationale for affirmative action. 27. Universities can be criticized for viewing even this rationale too narrowly-for example, by expecting racial minorities to educate their fellow students in certain subjects in which universities assume they might have special knowledge or expertise. On the television program 60 Minutes, then- Michigan Law School Dean Jeffrey Lehman said: CALIFORNIA LA W REVIEW [Vol. 94:457 Michael Dorf both echoes and softens this last criticism: "Broadly speaking, Powell's Bakke opinion had come to be read for the proposition that a voluntary university affirmative action program cannot be justified by the external impact of the university's graduates. Rather, it must be sustained on the basis of the internal effect of the student body's composition."28 One does not have to denounce the educational benefits of diversity as an aesthetic interest to notice the Bakke rationale's focus on internal educational effects. Schools may believe quite altruistically that they want their students not only to see difference but also to learn from those with whom--due to "white flight," self-segregation, or other rea- sons-they interact less and less in their formative years. Diversity may be more than a rationale for universities to achieve a smiling rainbow on their viewbook covers; it may also be about creating learning opportunities for students to be challenged. But believing in diversity's educational benefits is an internal rationale for the (mostly) whites who were already or about to be there. As I show in the next Section, however, Justice O'Connor's Grutter opinion shifted the focus of the diversity rationale away from Justice Powell's internal pedagogical effects, giving attention to the affirmative action policy's external impact (and more). B. O'Connora nd Grutter For many defenders of affirmative action, the months leading up to the Court's decisions in the Michigan cases were filled with worry that the Court would use these cases to turn its back on Bakke. Consequently, the fact that Justice Powell's rationale was not rejected outright was a great relief to many. That Powell's identification of the diversity rationale for affirmative action in higher education was actually endorsed for the first When we teach our students about difficult issues such as whether it's appropriate for police to be able to use race profiles when you stop people in traffic stops, when we ask our students whether it's appropriate to decriminalize crack cocaine, the discussion, the analysis, the learning that takes place is better in a racially diverse classroom. 60 Minutes (CBS television broadcast, Oct. 29, 2000), available at http://www.cir- usa.org/articles/michigan_60minutes.html. One hopes that this list of issues is neither exhaustive nor typical. Surely the school does not admit black students only to add their diverse viewpoints to discussions in which the subject of race is a central concern. Otherwise, one may doubt how much racial stereotypes are really being broken down through classroom discussions. 28. Dorf, supra note 9. He goes on: That may not have been quite what Powell originally meant. In any case, this contention was easily mocked: Was the real reason for affirmative action, critics asked, so that the minority students could enhance the educational experience of the non-minority students? Were minority students merely there to provide a kind of cultural exchange program for the non- minorities? 2006] STIGMA 'S OPENING time by a majority of the Court was cause for celebration by most affirma- tive action supporters.29 Moreover, Grutter went beyond Bakke in an obvious way: Bakke, de- spite offering the diversity rationale, had held UC Davis's admissions pro- gram unconstitutional. By contrast, Grutter not only affirmed the diversity rationale but also found an admissions program (that of the University of Michigan Law School) to its liking. The Grutter decision was also significant because it followed Bakke's forward-looking mindset. Professor Kathleen Sullivan, writing in response to three non-education affirmative action cases decided in the 1985 Term, lamented that the Court had never "broken out of sin-based rationales to elaborate a paradigm that would look forward rather than back, justifying affirmative action as the architecture of a racially integrated future. Quite the contrary, the Court has avoided such forward-looking justifica- tions .... "30 Sullivan observed that "such forward-looking visions appeared only fleetingly in the Court's opinions," noting how Powell's vote in Bakke, which "furnished a fifth vote for Bakke's second holding" that allowed race to be explicitly considered in university admissions so long as quotas were not used, was based on the compelling interest of stu- dent-body diversity3'-a rationale shared by no other Justice, since the four Justices Powell joined to produce a majority for this holding had based their opinion on a remedial, "backward-looking" justification.32 "The Court never produced a majority for such aspirational justifications, however,"33 such as that found in Powell's Bakke rationale, and this was still the situa- tion when the Michigan affirmative action programs were being litigated. Although it is beyond the scope of this Comment to consider whether a forward-looking rationale is normatively appealing,34 or whether it can, should, or will be extended to non-university settings, Sullivan and those of 29. See Charles Lane, Affirmative Action for Diversity Is Upheld, WASH. POST, June 24, 2003, at AOl (describing the reaction of University of Michigan President Mary Sue Coleman, among others). 30. Kathleen M. Sullivan, Supreme Court, 1985 Term-Comment: Sins of Discrimination:L ast Term's Affirmative Action Cases, 100 HARV. L. REV. 78, 80 (1986). 31. Id. at 84. 32. Id. at 82 (citing Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 362 (1978) (opinion of Brennan, White, Marshall & Blackmun, JJ.)). Sullivan also cited the dissent by Justice Stevens in Fullilove v. Klutznick as expressing a forward-looking vision. Id. at 84 ("And Justice Stevens wrote in his Fullilove dissent that he would have viewed Congress's set-aside for minority businesses as justified not only as a remedy, but also as a means of 'facilitating and encouraging the participation by minority business enterprises in the economy,' if he had found the set-aside actually tailored to either goal.") (citing Fullilove v. Klutznick, 448 U.S. 448, 542-43, 552 (1980) (Stevens, J., dissenting)). 33. Id. 34. Some critical race scholars criticize affirmative action policies for being forward-looking and not "rooted in [the] history" of blacks in America. See, e.g., Richard Delgado, Affirmative Action as a MajoritarianD evice: Or, Do You Really Want to Be a Role Model?, 89 MICH. L. REV. 1222, 1223-26 (1991) ("The system thus bases inclusion of people of color on principles of social utility, not reparations or rights.... The program was designed by others to promote their purposes, not ours.").