Unfortunately, Gratz and Grutter failed to clarify the law concerning racial preferences. Underlying nearly fifty years of constitutional jurisprudence had been the idea that racial distinctions are inherently irrational and politically dangerous. For this reason, the Court rarely approved a racial classification that couldn’t be easily limited to a narrow, very clear and important objective.

In Grutter, the Court held for the first time that “diversity” is a compelling interest that justifies the use of racial classifications. Unfortunately, Grutter did not provide a means to distinguish between a legitimate interest in including many perspectives in order to, e.g. improve classroom discussion, and the entirely illegitimate institutional interest in simple racial balancing. While everyone agrees diversity may help create an enriching climate, everyone also understands that simply boosting minority enrollment to satisfy a political constituency does great damage not just to the educational mission of a school but to the principles of equal treatment and individual merit.

Cartoonist Bruce Tinsley uses his Mallard Fillmore strip to make fun of the UM’s system of racial balancing

Having failed to articulate a clear distinction between a legitimate interest in diversity and simple racial balancing, the Court was unable to articulate a principled distinction between the undergraduate systems that it struck down and the law school system that it upheld. In place of a principle, the Court pointed to superficial differences in the manner in which the undergraduate and law school systems worked: whereas the undergraduate system mechanically assigns an admissions bonus to preferred minority candidates, the law school system purports to do so only on the basis of an individual examination of each applicant’s file.

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