Narrative Highground: The Failure of Intervention as a Procedural Device in Affirmative Action Litigation

Abstract

This article examines the history of intervention in higher education affirmative action cases from Bakke to the recent Michigan affirmative action cases, Grutter and Gratz. The article focuses on the efforts of minority students to become intervenors in these cases, and to persuade the courts to adopt their unique narrative in support of race conscious admissions programs. The minority student intervenors in these cases have consistently put fourth a unique narrative, namely the position that race conscious admissions policies are primarily justified by past societal discrimination and racial discrimination at the university level. Intervention, a procedural tool traditionally utilized for transforming the litigation process from solely a bipolar conflict, to a process that acknowledges and protects third party interests, has failed minority intervenors in these affirmative action cases.

Keywords: affirmative action, intervenor