Sunday, May 27, 2018



Ann Mallatt Killenbeck

Excerpted from: Ann Mallatt Killenbeck, Ferguson, Fisher, and the Future: Diversity and Inclusion as a Remedy for Implicit Racial Bias, 42 Journal of College and University Law 59 (2016) (473 Footnotes Omitted)(Full Article)


Virtually every discussion of race and racial justice in this nation now takes place in the long shadows cast by events like the death of Michael Brown in Ferguson, Missouri. As one observer declared after the murder of nine people in a Charleston, South Carolina church, “America is living through a moment of racial paradox” within which “Black culture has become ... mainstream ... [but] the situation of black America is dire.” The Supreme Court, in turn, has been repeatedly criticized for “often rul[ing] against those most in need of its protection” and, especially in matters of racial justice, having a “blinkered view” and “naive vision.” Its critics argue that it is a “Court [that] in closely-contested rulings, has weakened or even wiped out affirmative action's race-conscious policies designed to overcome and rebalance our history of discrimination in employment and admissions.”

It is then hardly surprising that the Court's decision to once again take up the contentious issue of affirmative action in college admissions was viewed with alarm by those who support admissions preferences. As is invariably the case, the Court did not explain why it agreed to reexamine the admissions regime at the University of Texas at Austin in what is now styled as Fisher II. It simply announced that the petition for a writ of certiorari had been granted, presumably to undertake the inquiry suggested by the Question Presented crafted by counsel for Abigail Noel Fisher: to determine “[w]hether the Fifth Circuit's re-endorsement” of the Texas policy “can be sustained under this Court's decisions interpreting the Equal Protection Clause of the Fourteenth Amendment.”

That suggests that diversity will remain a constitutionally permissible goal. But supporters of affirmative action are at best skeptical. They believe the decision to take the case reflects a considered strategy by the Court's conservative members to find a way to end race-conscious admissions policies in higher education. That sentiment is understandable given recent events and the manner in which the Court has approached many of these issues over the past several Terms. It is also incorrect and short-sighted. The real problem confronting diversity's supporters is not the potential demise of the Court's holding in Grutter v. Bollinger that this nation's colleges and universities have “a compelling interest in attaining student body diversity.” It lies rather, in what a victory for Texas might portend.

My thoughts on Fisher II in this Article will be somewhat unusual. My threshold assumption is that the Court will use the case to reaffirm Grutter and clarify what is required when a college or university decides to adopt an affirmative admissions policy as a means of attaining student body diversity. As I will explain, the decision to grant review was both logical and necessary. It is actually a welcome opportunity for the Court to give badly needed guidance to both sides in this debate about how best to go about implementing those policies. Indeed, I believe that for those who wish to preserve the diversity victory in Grutter, the best possible outcome will be to have their implementation feet held to the fire of intense judicial scrutiny in Fisher II. That said, there are substantial perils in this process given the lackadaisical manner in which virtually all institutions have approached their actual educational obligations once they have taken the steps required to admit a diverse group of students.

I will also argue that this new round of litigation offers an important opportunity for affirmative action's proponents to do two interrelated things. The first is to recognize, account for, and undertake key obligations imposed by Grutter and Fisher I. The second is to seize the opportunities presented in the wake of Fisher II to strengthen their case for the value of diversity as a matter of educational policy by focusing our attention on implicit racial bias. The virtues of educational diversity identified by Justice Sandra Day O'Connor in her opinion for the Court in Grutter had solid social science foundations. The evidence cited by the Court at that time did not, however, account for an important aspect of our national malaise, the corrosive impact of implicit racial bias and stereotyping. Significant developments in this body of knowledge have the potential to bolster the Court's prior determination that diversity's “benefits are not theoretical but real.” This knowledge can, and should, be part of the dialogue as we reexamine these issues.

Part I of this Article sets the stage for this discussion by identifying what Fisher II is and is not about. In particular, I argue that supporters of affirmative action should set aside their fears that the Court will abolish affirmative action in higher education admissions systems and concentrate instead on what the Court will likely tell them about how such programs should be implemented. Fisher II is a case that verifies the maxim that “the devil is in the details.” In this instance, that demon is the need for colleges and universities to do with care what the Supreme Court expected when it decided Grutter: namely, adopt “‘means chosen to accomplish [their] asserted purpose [that are] specifically and narrowly framed to accomplish that purpose.”’

Part II connects Fisher II to what I believe to be two important lessons posed by the differences between Grutter and the Court's first take on this issue in Regents of University of California v. Bakke. The first is its focus on the reality that the case for affirmative action and diversity in Grutter turns on the premise that it will actually generate beneficial educational outcomes. Bakke, on the other hand, simply took higher educations' embrace of diversity at face value and spoke in vague terms of things that were “widely believed to be promoted by a diverse student body.” The second is to recognize and account for an important way in which Grutter expanded the case for diversity. Bakke focused almost exclusively on “[t]he atmosphere of ‘speculation, experiment and creation”’ that arises from “a diverse student body.” Grutter did more, extending the justifications for and acknowledged benefits of a diverse learning environment beyond the college years in ways that make its potential benefits all the more compelling.

Part III explores two aspects of the case for diversity. My goal is not to make that case. Rather, I explore its dimensions and, more importantly, discuss its implications. In each instance, the focus is on the evidence presented to the Court suggesting that the benefits of diversity are real. The social science foundations for Justice Sandra Day O'Connor's opinion for the Court in Grutter were important. They were also limited in two key respects. The first was its reliance on contact theory, a body of research that emphasizes the impact of “engaging and interacting with diverse peers.” The second was the failure to account for key aspects of how prejudice and stereotypes actually operate. In particular, the materials cited in Grutter did not acknowledge implicit bias, the “unwitting, unintentional, and uncontrollable” impulses that infect “normal, everyday human thought and activity” of even “the most well-intentioned people.” Careful attention to that phenomenon - and the development of interventions designed to deal with it - has the potential to go a long way toward explaining the promise of Grutter in an era where “racial discrimination [is pervasive] in a society that favors formal racial equality.”

Part IV reexamines all of this in the special and informative contexts provided by the obligations imposed on this nation's schools and colleges of law by their primary accrediting agency, the American Bar Association (ABA). Legal education is one of the very few segments of the higher education community where both the need for affirmative action and its use are routine. The ABA treats the use of affirmative action in pursuit of diversity as a duty, not an option, and its current rules track closely the outcomes-based approach taken by Justice O'Connor in Grutter. There are also aspects of how law schools are structured and operate that make them especially suitable venues for assessment and documentation. Taken together, these realities have important consequences and make legal education an especially apt exemplar of the obligations, challenges, and opportunities that lie ahead.

. . .

The social science suggests that there may well be good reasons to promote diversity. It also tells us that doing it right is a difficult process and that doing it badly could be dangerous. We do not at this point know what the Court will do in Fisher II. Regardless, this nation's colleges and universities have an obligation to act in educationally sound ways. If, as will almost inevitably be the case, a given institution lauds and pursues diversity it has a concomitant to engage in the sorts of programming and assessment I have described.

There are good reasons to debate diversity and affirmative action as matters of social policy and constitutional law. Principled diversity is more than simple numbers. Acceptance of diversity as a compelling interest and articulation of a legal narrow tailoring rubric are necessary first steps. Conscious programming and systematic assessment are their necessary companions. Indeed, they are essential elements for any institution that is required to defend its particular approach in a court of law. The fact that most institutions will not face that particular problem does not excuse them from undertaking the work. Sound educational policy requires every institution that embraces diversity must take care that what they do in the name of diversity is truly principled.


Professor Killenbeck is an Associate Professor at University of Arkansas School of Law.



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