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

According to Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas, the majority failed to correctly apply strict scrutiny.71 While many of their disagreements are outside the scope of this Comment, Justice Kennedy's opinion identifies a central problem: "the Court confusefd] deference to a university's definition of its educational objective with deference to the implementation of this goal."72 In other words, the Court was right to give deference to whether racial diversity was central to the University of Michigan's educational goals, but should not have given such broad deference to whether the University's implementation of its critical mass program was narrowly tailored.73

C. Change in the Supreme Court

Since the Grutter decision, the Court has changed significantly. Justice O'Connor, the author and swing vote in Grutter, has been replaced by Justice Samuel Alito74 and the passing of Chief Justice Rehnquist brought the nomination of Chief Justice John Roberts.75 Justice Roberts appears to be as conservative as Chief Justice Rehnquist, and Justice Alito's previous record as a judge is more conservative than Justice O'Connor's.76

While "conservative" leanings may not prove how Chief Justice Roberts and Justice Alito will rule on race-based programs, the 2005 and 2006 Terms have hinted that they generally side with the Grutter dissenters.77 In the 2005 Term, Chief Justice Roberts sided with Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito eighty six and a half percent of the time.78 Additionally, Chief Justice Roberts only voted in a non-conservative way once in the 2005 Term, while Justice Alito never strayed from his conservative leanings.79 Further, a 2006 dissenting opinion authored by the Chief Justice and joined by Justice Alito stated that "divvying us up by race" was "a sordid business."80

If Chief Justice Roberts and Justice Alito continue to agree with the Grutter dissenters, it seems likely that the Roberts Court will apply a stricter interpretation of narrow tailoring to race-based affirmative action.81 While institutions of higher learning have been afforded a great deal of deference in their admission processes,82 that deference-as Justice Kennedy noted-does not extend to the implementation of an affirmative action program under strict scrutiny analysis.83 It seems likely that the new Justices, Chief Justice Roberts and Justice Alito, will follow Justice Kennedy's criticism and strictly apply narrow tailoring to the implementation of a race-based affirmative action program. Such narrow tailoring would reject phantom minorities' claim to race-based affirmative action, which is discussed in the next Part.

III. PROBLEMS WITH PHANTOM MINORITY DILUTION

Based on the Court's justifications for critical mass, phantom minorities pose a serious threat to the constitutionality of race-based admissions policies because they do not contribute to cross-racial understanding or promote diversity-based learning outcomes under a narrow tailoring requirement. By assuming all persons that claim racial minority status qualify for affirmative action, universities endanger race-based affirmative action. Even though Justice O'Connor's majority opinion re-legitimized the consideration of race in admission policies, it also acknowledged the possibility of "serious problems of justice" in race-based admissions and emphasized the need to carefully tailor admissions policies.84 For this reason, Justice Kennedy's dissent in Grutter argued that narrow tailoring must include emphasis on the way in which a university applies a race-based admission program.85 In order to filter out phantom minorities from the pool of qualified candidates, an affirmative action program must increase scrutiny on who is a racial minority or suffer phantom minority dilution.86