From Equality to Diversity: The Detour from Brown to Grutter
Colin S. Diver   |   2004 U. Ill. L. Rev. 691
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In this article, the author discusses the Supreme Court’s recent decisions in Gratz v. Bollinger and Grutter v. Bollinger, in light of their relation-ship to Brown v. Board of Education, decided nearly fifty years earlier. Surveying decisions leading from Brown to Grutter, the author documents the evolution in the Court’s affirmative action cases from a remedial rationale to a diversity rationale. Testing the diversity justifica-tion against the Court’s strict scrutiny standard, however, the author finds that the diversity rationale is insufficient to meet the requirements of that test and urges the Court to return to the remedial logic of Brown.

First, noting persistent questions about the basis for and scope of the di-versity rationale, the author submits that diversity arguments fail to meet the Court’s requirement that racial preferences be narrowly tailored to serve a compelling state interest. Second, he suggests that continuing gaps in performance between black and white students show that the task Brown began is still incomplete, firmly establishing a continuing need to remedy past discrimination in education. Rather than restrict remedia-tion to those institutions guilty of past racial discrimination, however, remediation should be more broadly interpreted to permit educators to give racial preferences, but only to the extent that they can show a link between the current gaps in student performance and past discrimination. The author argues that such a broadened remedial rationale, with its re-sulting heightened burden of proof on educators, would provide both a persuasive reason for giving racial preferences in admissions and a natu-ral end to such racial preferences when the burden of proof can no longer be met. This article concludes by stating that the remedial rationale for considering race in admissions would keep such consideration visible and disciplined, while best fitting the spirit and result in Brown.