The issue of affirmative action promises to play a large role in future considerations of both US law-makers and the US Supreme Court. The striking contrast between the Grutter v. Bollinger decision in 2003 by the US Supreme Court which implicated that using factors of race as determinant factors in University admission policies, specifically, in the admissions policy of the University of Michigan Law School, was constitutional.
The more recent decision by the Supreme Court in the so-called “New Haven Firefighters” case resulted in a “5-4 ruling in favor of white firefighters who sued New Haven Mayor John DeStefano Jr. and the city over promotional exams” (Carter, 2009, p. 1). Within the span of less than a decade, the Supreme Court has, obviously, reflected a degree of ambiguity regarding the pragmatic function of affirmative action legislation.
In order to understand the reasons for this ambiguity, and the probable consequences of future legislative and judicial action in the area of affirmative action, it is useful to review the history of the two, disparate Supreme Court rulings. The ruling of the Supreme Court regarding Grutter v. Bollinger (2003) invited spirited debate as to whether or not the majority opinion in the case, which concluded that “factoring race into the admissions decisions of the University of Michigan Law School was compatible with the Constitution” (Pollak, 2005), in fact, represents an attempt of the court to engage in judicial activism.
Justice O’ Connor , writing for the majority opinion relied heavily upon the “Equal Protection Clause of the Fourteenth Amendment” (Robinson, Franklin & Epermanis, 2007) which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (Robinson, Franklin & Epermanis, 2007).
However, the provision does not explicitedly state that diversity itself is a desired goal, nor that the promotion of diversity by the government or the court should pursue diversity as an end, but rather, should simply be “color blind. ” The majority opinion in Grutter v. Bollinger rests not only upon an avowed allegiance Fourteenth Amendment and the Constitution, but to the interest of promoting diversity itself as a perceived strength for the country as a whole.
The evolution of affirmative action included the proliferation of research in cognitive psychology which believed in “an association between learning and the experience of novelty” (Pidot, 2006). In other words, stated quite simply, many adherents of affirmative action subscribed to the idea that diversity creates a positive opportunity for people to “learn differently when they leave their comfort zones” (Pidot, 2006). The University’s court case relied heavily upon these and other studies which asserted “that racial and ethnic diversity leads to tangible educational benefits” (Pidot, 2006).
In returning to the original ideas presented in the Fourteenth Amendment, O’ Connor acknowledged that while “”government may treat people differently because of their race only for the most compelling reasons,” (Robinson, Franklin & Epermanis, 2007), she also found that diversity, itself, could “serve such an interest” (Robinson, Franklin & Epermanis, 2007). It is in these last assertions that the most egregious example of judicial activism is likely to be convincingly demonstrated.