"If diversity served institutional goals rather than individual justice, then who was it really for?
Too often, the answer was: everyone else."
These lines really stuck with me. If the Court instead had reasoned that students of color should be admitted because they deserved opportunity or because the law demanded a remedy for past discrimination, would we be where we are now? Is the reasoning behind Grutter v Bollinger, (which centers the benefits of diversity for all rather than the benefits of diversity for those personally impacted by its enforcement) the core vulnerability that led to the law being overruled? How else could this have gone, or what other type of reasoning could have been used?
The Court could have emphasized remedial justice, but that path was largely closed off by cases like City of Richmond v. Croson and Adarand v. Peña, which made race-based remedies permissible only when tied to *specific* findings of *intentional* past discrimination by the same actor. If affirmative action was framed as a remedy, it would likely fail strict scrutiny under that narrow standard. So the Court turned to “diversity” as the only argument that could survive.
Other paths the Court could’ve used: that the law should fight subordination, or that equal access to elite schools is a constitutional value. Or it might have stressed democratic legitimacy—that leadership pipelines must be inclusive.
But in 2003, the Justices didn't want to use that framing; they wanted something narrower and technocratic instead, because they didn't want to sound like they were sanctioning race-conscious policies across the board. In short, it was the only way to uphold affirmative action while still signaling a strict, skeptical stance on race.
"If diversity served institutional goals rather than individual justice, then who was it really for?
Too often, the answer was: everyone else."
These lines really stuck with me. If the Court instead had reasoned that students of color should be admitted because they deserved opportunity or because the law demanded a remedy for past discrimination, would we be where we are now? Is the reasoning behind Grutter v Bollinger, (which centers the benefits of diversity for all rather than the benefits of diversity for those personally impacted by its enforcement) the core vulnerability that led to the law being overruled? How else could this have gone, or what other type of reasoning could have been used?
The Court could have emphasized remedial justice, but that path was largely closed off by cases like City of Richmond v. Croson and Adarand v. Peña, which made race-based remedies permissible only when tied to *specific* findings of *intentional* past discrimination by the same actor. If affirmative action was framed as a remedy, it would likely fail strict scrutiny under that narrow standard. So the Court turned to “diversity” as the only argument that could survive.
Other paths the Court could’ve used: that the law should fight subordination, or that equal access to elite schools is a constitutional value. Or it might have stressed democratic legitimacy—that leadership pipelines must be inclusive.
But in 2003, the Justices didn't want to use that framing; they wanted something narrower and technocratic instead, because they didn't want to sound like they were sanctioning race-conscious policies across the board. In short, it was the only way to uphold affirmative action while still signaling a strict, skeptical stance on race.