Don't Tell, Don't Ask: Narrow Tailoring after Grutter and Gratz

68 Pages Posted: 27 Aug 2008 Last revised: 20 Mar 2009

Ian Ayres

Yale University - Yale Law School; Yale University - Yale School of Management

Sydney Foster

Harvard Law School

Date Written: February 10, 2007

Abstract

The Supreme Court's affirmative action decisions in Grutter v. Bollinger and Gratz v. Bollinger changed the meaning of narrow tailoring. While the narrow tailoring requirement has always had multiple dimensions, a central meaning has been that the government must use the smallest racial preference needed to achieve its compelling interest. We might have expected, therefore, that if the Court were to uphold one of the two programs at issue in Grutter and Gratz, it would, all other things being equal, uphold the program with smaller racial preferences. We show, however, that the preferences in the admissions program upheld in Grutter were larger than the preferences in the admissions program struck down in Gratz.

This result was not necessarily wrong, but the Court's analysis was wrong. The Grutter and Gratz Courts replaced the minimum necessary preference requirement with a requirement that admissions programs provide individualized consideration, which we show amounts to a Don't Tell, Don't Ask regime. The Court will not ask probing questions about the size and differentiation of preferences as long as the government decisionmaker does not tell the Court how much of a racial preference it is giving. Indeed, as an example of the differential standards the Court applied, we demonstrate that while the Court impugned the admissions program at issue in Gratz for making race decisive for virtually every minimally qualified minority applicant, in fact the fraction of qualified minority applicants for whom race was decisive was smaller in the admissions program struck down in Gratz than it was in the admissions program upheld in Grutter.

We call for a return to the minimum necessary preference requirement. Instead of examining whether preferences are individualized, courts should determine whether the constitutionally relevant benefits of granting preferences of a given size outweigh the constitutionally relevant costs, both overall and at the margin.

Keywords: affirmative action, Grutter, Gratz, narrow tailoring, individualized, strict scrutiny, Michigan

Suggested Citation

Ayres, Ian and Foster, Sydney, Don't Tell, Don't Ask: Narrow Tailoring after Grutter and Gratz (February 10, 2007). Texas Law Review, Vol. 85, No. 3, 2007; Yale Law School, Public Law Working Paper No. 171; Yale Law & Economics Research Paper No. 375. Available at SSRN: https://ssrn.com/abstract=1215125

Ian Ayres

Yale University - Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-7101 (Phone)
203-432-2592 (Fax)

Yale University - Yale School of Management

135 Prospect Street
P.O. Box 208200
New Haven, CT 06520-8200
United States

Sydney Foster (Contact Author)

Harvard Law School ( email )

Cambridge, MA 02138
United States

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