Stigma's Opening: Grutter's Diversity Interest(s) and the New Calculus for Affirmative Action in Higher Education

The Supreme Court's Grutter v. Bollinger decision gave an opening to the argument that affirmative action in higher education stigmatizes racial minorities. This paper provides an alternative account of the meaning and significance of Grutter - particularly the opinions of Justices O'Connor and Thomas. It then considers the tenability of a post-Grutter lawsuit challenging the constitutionality of a university's affirmative action program because of the stigmatic injury it causes racial minorities. First, this paper argues that Grutter is significant not because a majority of justices endorsed Justice Powell's Bakke opinion and its diversity rationale for the first time. Rather, it is because Justice O'Connor's majority opinion relied on two additional rationales for affirmative action - not only diversity's educational benefits for white people and universities, but also the benefits for society at large and, most significantly, for racial minorities. Second, this paper challenges those who dismiss Justice Thomas's Grutter dissent as merely the angry, emotional rant of someone who benefited from affirmative action and then sought to pull up the ladder behind him. In reality, Thomas's dissent was a legal response to O'Connor's rationale that diversity in education benefits racial minorities. Countering O'Connor's statement that affirmative action makes the path to leadership visibly open to racial minorities, Thomas's opinion presented the possibility that such preferences may actually cause positive injury by stigmatizing those racial minorities being viewed. The old Bakke diversity rationale did not leave an opening for the stigma argument, but Grutter created a new legal calculus that did so. Accordingly, it is an open question whether Grutter's two additional diversity rationales have made the diversity interest as a whole -- and thus the constitutionality of affirmative action in higher education -- more or less vulnerable than it was in Bakke. This paper then illustrates stigma's opening into this new legal calculus by examining the potential for a post-Grutter lawsuit based on the stigma argument. It presents a hypothetical case in which the plaintiffs are racial minorities applying to a selective university with an affirmative action admissions policy who would be admitted during, but not necessarily because of, the policy's existence. It examines the standing of four hypothetical minority plaintiffs and the issues that may arise under the compelling-interest and narrow-tailoring prongs of strict scrutiny for those litigating such a suit. The new calculus for affirmative action in higher education allows for the consideration of a broader array of benefits and harms - particularly the benefits and harms to racial minorities. (Accordingly, the new calculus can dovetail with the empirical work of Richard Sander and others concerning affirmative action's effects on racial minorities' academic and career prospects, although this paper is distinct from that research in a number of respects.) The new calculus places concerns about stigmatization front and center, which is where they belong.