Racial Classification and the Flawed Pursuit of Diversity: How Phantom Minorities Threaten "Critical Mass" Justification in Higher Education

Brigham Young University Law Review, 2007 by Thomas, Edward C

I. INTRODUCTION1

In December, 2006, the Supreme Court heard oral argument in a pair of cases that once again thrust racial classification to the forefront of public debate. The two cases, Meredith v. Jefferson City Board of Education2 and Parents Involved in Community Schools v. Seattle School District3 are the Court's first review of racial classification under the leadership of Chief Justice John Roberts. Amidst the controversy surrounding whether or not government can constitutionally engage in racial classification, however, a crucial question is all too often overlooked: who, in a society that increasingly reflects a kaleidoscope of different ancestries and heritage, qualifies as racially diverse?

The Supreme Court last considered race-based affirmative action in Grutter v. Bollinger, where the Court upheld the University of Michigan's affirmative action plan based on critical mass.4 Legal scholarship has widely praised and criticized that decision.5 Affirmative action advocates generally argue that the Grutter majority correctly applied a heightened level of scrutiny while permissibly adapting traditional strict scrutiny analysis.6 More conservative-minded scholars argue that Grutter was a legal aberration because any racial preference not only invites, but requires the application of strict scrutiny to all aspects of a racial-preference system.7 Unfortunately, largely absent from these popular arguments is the important debate concerning mixed-race individuals who are rapidly becoming the face of modern America.

The Grutter majority's failure to provide a clear definition of who is a racial minority makes the concept of racial preference somewhat illusory. The Court sanctioned the use of racial preference, but gave no direction regarding how to go about making that classification.8 American society is itself increasingly diverse,9 making any absolute definition of who is included in the definition of "minority" particularly elusive.10 Now the Roberts Court is tasked with determining whether diversity is still a compelling government interest, and if so, how to correctly apply narrow tailoring, yet it must do so without any clear criteria as to what actually constitutes diversity.

All men may be "created equal," but not all minorities are similarly situated. At one extreme of a racial continuum exist minorities who have a dramatically different outlook on life than the typical middle-class Caucasian: a decidedly racial perspective.11 They contribute to racial diversity through their very appearance and life experience.12 At the continuum's other extreme are what may be best described as "phantom minorities": they look white,13 have Anglo names, and come from backgrounds void of racial-life experience, but nevertheless, exploit race-based affirmative action. Like a phantom that passes through a crowded room undetected, they are otiierwise unidentifiable as minorities; their ethnicity emerges only momentarily when filling out applications for work or school, only to quickly disappear once again. Phantom minorities have the same advantages and perspectives as their white counterparts, but in contrast, can check the proverbial "box"14 and use dieir marginal minority status to reap the benefits of affirmative action widiout contributing to racial diversity. Furthermore, phantom minorities provide an easy solution for schools and employers to satisfy their "diversity" goals without actually increasing diversity.15

This Comment argues that a clearer metiiod to determine who qualifies as an ethnic minority is necessary in order for affirmative action to survive stringent, narrow tailoring requirements16 and enjoy continued implementation in institutions of higher learning.17 The lack of scrutiny on minority status undermines the legitimacy of critical mass rationale and seriously threatens the constitutionality of affirmative action itself.18 In order to legitimize the pursuit of a critical mass, programs that rely on racial classification must clearly articulate the criteria of what "racial minority" includes, and look beyond simply whether or not the proverbial box was checked to account for the presence of phantom minorities.19

Part II of this Comment reviews Grutter and its strict scrutiny analysis, focusing on why student body diversity (i.e. racial diversity) is a compelling state interest. Part II also identifies several of the reasons the Grutter Court held that the University of Michigan's racial preferences were narrowly tailored, and considers how the Supreme Court's perspective on narrow tailoring may shift given the additions of Chief Justice Roberts and Justice Alito. Part III sets forth how the presence of "phantom minorities" jeopardizes the pursuit of legitimate "diversity" and cripples narrow tailoring. Part IV considers several possible solutions to achieve diversity in our modern society in which race is becoming an ever more fluid and intangible criteria. Self-identification coupled with a university's good faith effort to parse out phantom minorities is the approach most likely to assure a meaningful contribution to critical mass. Such an approach promises to overcome the problem of "phantom minority dilution" while increasing overall diversity.