Jurisprudence

The Empty Promise of the Supreme Court’s Landmark Affirmative Action Case

Black students like me are tired of taking on the emotional labor to educate white peers.

An empty library with chandeliers and marble walls.
The law library at University of Michigan Law School. Wikimedia Commons

In Grutter v. Bollinger, the 2003 landmark affirmative action case, the United States Supreme Court hid the ball of affirmative action in college admissions behind the veneer of academic diversity, declaring that the University of Michigan Law School had a compelling interest in obtaining the benefits that naturally flow from a diverse educational environment. A classroom with “a mix of students with varying backgrounds and experiences who will respect and learn from each other” would do the work to diminish stereotypes and enrich the course material. Grutter gave us the repetitive edict heard from companies and colleges throughout America: Diversity is our strength.

I always thought the open forum Grutter stood for would easily foster social inclusivity. But framing diversity crises as fixable through conversation alone just normalizes unhelpful, abstract discussions about race in America. Black Americans don’t have the luxury of abstraction. For us, the law can be measured in lifetimes.

Just before my father was born, the United States Supreme Court decided Brown v. Board of Education. The Brown decision promised my grandparents that the racial segregation infecting their classrooms would not permeate in their children’s classrooms. All they had to do was wait for its enforcement.

Regents of the University of California v. Bakke set precedent for race-conscious admissions policies without “quota systems.” The court finally confirmed for my father that the full weight of himself could and should be considered as a factor for admission. Already in his mid-20s and out of college, the promise came late.

When I was in the third grade, another promise came. In Grutter, the University of Michigan Law School defended an admission policy designed to obtain a “critical mass” of students from historically underrepresented groups to ensure their meaningful participation in the school’s diversity initiative. The school promised me that a diverse environment was enough to reckon with the lifelong sins of the American education system. All I had to do was make my way to a top 10 law school.

Michigan Law School won the day in Grutter. The value of diversity replaced the affirmative action mandate, which stipulated that institutions that had engaged in a history of systemic racism be held responsible for promulgating that racism.

After a week of national protests over the police killing of George Floyd, Michigan Law dean Mark West issued a public statement that did not say Black Lives Matter, though other institutions had done so. Clarifying the delay, he said, “Broad statements can seem superficial and irrelevant to your concerns, and if frequent, the efficacy of the messages decreases over time. So in this case, in accordance with our policy, I had no plan to issue a statement.” This tepid statement, only issued after urgent prodding, gave little comfort to Black students who already felt abandoned by their administration.

Michigan Law’s Black Law Students Association had begged the school for years to make curriculum changes and to diversify the faculty. In 2019 only 11.71 percent of the full-time faculty identified as a minority, placing the school 169th out of the 200 law schools reporting such data to the American Bar Association. That it took my law school longer than my favorite brand of ice cream to recognize that the Black Lives Matter movement was not “superficial” felt extremely disrespectful.

The University of Michigan Law School’s tone-deaf response to George Floyd’s murder is emblematic of the price Black America pays for White America’s comfort in higher education. Black students are not the ones who should be teaching others how not to be racist. Academia pays us lip service without addressing why there are so few Black voices in the first place: its own perpetuation of a racist system.

In my academic life, Grutter’s promise that diversity alone could cure racism meant that my pain has always served as a steppingstone for the education of my white classmates.

I was one of nine Black students in my high school’s graduating class. When history lessons stop after the Civil War and we lean on Black students to articulate the rest, we are agreeing to put children in dangerous and vulnerable positions. I didn’t have the language in high school to explain why I was uncomfortable when a white student asked me if I would dress up as Jim Crow for Halloween since she wanted to know what he looked like. I was a teenager. I didn’t know how to approach a teacher or administrator to advocate for myself.

I thought college would be better. Except even when I took courses in African American history at the University of Southern California, I was still waiting to advocate for myself. I wasn’t a lawyer yet. I didn’t think I had the credibility or the training to criticize the institutions around me.

I sat in predominately white classrooms learning curricula completely foreign to my real, lived experience as a Black woman in America. As one of the only “diverse” voices, I had to do the unpaid work of educating classmates, professors, and administrators countless times over. Other students had the privilege to learn uninterrupted while my time was spent agonizing over how to defend myself against racism.

Surely, I thought, when I got to Michigan Law and experienced Grutter’s promise in the home of its architects, I would finally see the diversity cure in action.

But during law school, I felt the same distress with far greater force. Black students were still expected to serve as unpaid race ambassadors. Underfunded campus affinity groups were constantly burdened with our own mentorship and recruitment. To have a cogent discussion on race in the law, we had to interrupt and fight the lesson plan. The university’s reporting system was purposefully opaque. Like everywhere else, the administration was frustratingly unwilling to acknowledge the real harms perpetuated against its Black students.

There is a flaw in the Grutter promise. Grutter told a generation of Black students that our primary function in the classroom was to offer our perspectives to our white classmates. But the unspoken rule at school always was that we must be diverse quietly and gently—as if our humanity were a matter of civil political debate. Talking too loudly would jeopardize our career prospects and reputations. In direct contradiction of the Grutter mandate, our silence was encouraged and rewarded.

After the dean’s statement was released, I have witnessed an emotional outpouring. Fellow Wolverines and students from other law schools commiserated in the open about our collective emotional labor. It was the same disheartening experience repeated over and over. We were all tired. Overwhelmed. Sick of waiting. At immense personal risk, we coordinated our efforts to be heard. It was the birth of #MLawLoud. The hashtag documents all the student experiences that administrators would rather have us keep quiet about, providing students with a public accountability mechanism. Soon students at other schools began sharing their own experiences.

Grutter finally came home to roost.

In Grutter, Michigan Law made us all a promise that diversity alone would transform our institutions. Today it is alarmingly clear that Grutter is not enough. Black law students have promulgated a list of demands, including curriculum changes and mandatory anti-racism programing for all students and professors. Some alumni have pledged to withhold donations to the school until satisfactory progress is made. I’m asking Michigan Law School and educational institutions everywhere to reimagine their responsibility for changing the educational environment. It is time to make a new promise.

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