In Grutter v. Bollinger, the Court recognized student body diversity as a compelling state interest that justified the use of racial preferences in selecting applicants for admission to public university law schools. Normally, any state action reviewed under a strict scrutiny approach is destined for invalidation. But in Grutter, the Court bucked the trend and upheld the race-based admissions policy against a racial discrimination challenge brought under the Fourteenth Amendment’s equal protection clause. Given the rarity of a state action surviving strict scrutiny review, it is instructive to examine the nature of the diversity interest recognized by the Court in Grutter, especially since it is a diversity that seems to completely transform the way strict scrutiny is applied.
Instead of rigorously examining the stated purposes and aims of the racial discrimination at issue, the Court appeared to give great deference to whatever goals and justifications the government offered. The Court did not, as it so often does in other applications of strict scrutiny, conduct an independent, skeptical inquiry into the stated rationales for the government’s action; nor did the Court seriously consider whether the government failed to pursue other less discriminating alternatives that would have produced the same desired racial diversity among its students; nor did the Court engage in any real effort to determine whether the government had even established a sufficient trustworthiness in matters of diversity so as to be rewarded with such deference.
This Article will examine the nature of the diversity interest recognized in Grutter. It will ask the questions that courts normally ask during a strict scrutiny review, but which Grutter failed to ask. And in doing so, this Article will question whether higher education, in connection with the issue of diversity, should be given the deference that the Court granted it.