As mentioned, the original language of the Equal Protection Clause, which is the constitutional basis for the Court’s decision in Grutter v. Bollinger, fails to mention anything whatsoever about the preservation or enabling of diversity and, instead, seems to suggest that the elimination of prejudice and discrimination are the only goals set forth under the provision itself.
Because the concept of judicial restraint is that judges should limit their personal power in order to more accurately uphold the legislative and constitutional precedents which serve to shape the laws of the American democracy, the issue of diversity as a valued end in itself seems to be an example of judicial activism. Of course, the protection of minority rights is desirable in a democracy, the original impetus behind affirmative action targeted a limited and time-specific set of strategies to redress an historical imbalance in social-poltical justice which was based on ethnicity and race.
The idea that “diversity has become a legitimate organizational goal in and of itself–one which is sufficient to serve a compelling government interest” (Robinson, Franklin & Epermanis, 2007) is a concept which cannot be demonstrated to have been derived from the Constitution or the existing affirmative action statues which occasioned the Grutter v. Bollinger case. Under the Supreme Court’s ruling, the existing idea that affirmative action redress was to be of limited duration may have been skewed.
In effect, the “decision may have also eroded the requirement previously mandated under narrowly tailored that affirmative action programs must be temporary in duration” and this is, in itself, an extension of a legislative function more properly addressed, not by the court, but by the legislative branches of government. The decision by the Supreme Court in the case of Grutter v. Bollinger demonstrates a judiciary body activist force.
The more recent judicial action in the New Haven case represents, then, an opposing backlash to the idea of judicial activism; or rather, posits an equal measure of judicial activism in an attempt to balance or remedy the Grutter v. Bollinger precedent. Such a back-lash is grounded in the perception among those who oppose affirmative action that affirmative action is detrimental to a large number of white Americans, particularly white-males: “real-life people who lost jobs or promotions because of affirmative action may have been permanently crippled in careers and livelihoods […] when one person was quotaed in, another was ipso facto quotaed out. (Lynch, 1991, p. 1).
This point of view regards affirmative action, not as a redress to issues of racial inequality, but as an attempt to “restructure American society using race-and-gender preferences” (Lynch, 1991, p. 165). While the Supreme Court’s 2003 decision in the Grutter v. Bollinger case indicates a rejection of the “restructuring” argument.
However, the pivot by the court in 2009 in the New Haven case signals a dramatic shift in judicial tone and promises to inflame the already fevered debate over public policies which are grounded in the idea of affirmative action. References Lynch, F. R. (1991). Invisible Victims: White Males and the Crisis of Affirmative Action. New York: Praeger. Pidot, J. (2006). Intuition or Proof: The Social Science Justification for the Diversity Rationale in Grutter V. Bollinger and Gratz V. Bollinger. Stanford Law Review, 59(3), 761+.
Pollak, L. H. (2005). Race, Law & History: The Supreme Court from “Dred Scott” to “Grutter V. Bollinger”. Daedalus, 134(1), 29+. Robinson, R. K. , Franklin, G. M. , & Epermanis, K. (2007). The Supreme Court Rulings in Grutter V. Bollinger and Gratz V. Bollinger: The Brave New World of Affirmative Action in the 21st Century. Public Personnel Management, 36(1), 33+. Carter, Angela. (2009) Getting Down to Business: ‘New Haven 20’ Ruling has Implications for Employers. New Haven Register; Sunday, July 19, 2009.