Remembering Grutter's Promise: Bridging the Gap Between Colorblind Rhetorical Equality and Real Racial Inequality
Rutgers School of Law - Camden
October 7, 2013
The prospect of Grutter v. Bollinger’s demise hung heavy in the air in the weeks and months preceding the Supreme Court’s decision this term in Fisher v. Texas. Notwithstanding the debates that will continue to rage about what the decision in Fisher means, if anything, what is now clear is that Grutter remains the law. Grutter was significant for its articulation of the "diversity rationale" in support of race-conscious action notwithstanding the Court’s rhetorical commitment to constitutional colorblindness. Having survived the challenge in Fisher, it is a fitting moment to reflect on what Grutter’s "diversity rationale" represents − its import for, impact on, and as improbable as it may have seemed recently, its promise for the future of our equal protection jurisprudence. This paper undertakes that reflection.
Much of the literature to date concerning Grutter has focused on the tension created between our presumptive commitment to the aspirational principle of colorblindness and Grutter’s embrace of race-consciousness in the pursuit of diversity. This narrow focus on reconciling the tension between colorblindness and race-consciousness obscures not only the internal logic of the Grutter decision, but its larger import for our equal protection jurisprudence. By offering a broader view of Grutter, this paper reveals how the "diversity rationale" can be reconciled with the robust jurisprudential framework that has ordered the Court’s equal protection analysis. The individual analytical constructs that together form this framework have been treated in the literature separately, but never together. Viewed together, however, this framework reveals that Grutter follows in a long tradition of the Court interpreting the Equal Protection Clause to give effect to that principle of equality which best vindicates our constitutional ambitions while accommodating our present reality. This paper demonstrates that Grutter’s "diversity rationale" responds directly to a looming threat to our original constitutional ambitions for pluralist democracy and argues that the "diversity rationale" offers the promise of an equal protection doctrine that maintains the present commitment to aspirational equality, while also making real our constitutional commitment to substantive equality.
Number of Pages in PDF File: 66
Keywords: equal protection, affirmative action, diversity, pluralism, race, anti-subordination, anti-discrimination, representation-reinforcement, contextualismworking papers series
Date posted: October 7, 2013
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