January 12, 2006

Alito on Diversity

Kudos to Judge Alito for his handling of Sen. Feingold's (D - WI) questions today about Grutter v. Bollinger, the 2003 Supreme Court decision which held that diversity was a "compelling interest" and, therefore, could justify the University of Michigan Law School's racial admissions preferences. Feingold pressed Alito about whether he thought "diversity in the classroom is a compelling state interest," but Alito's reply was as measured as it was for questions about Roe v. Wade. His answer to Feingold was simply "It's a precedent." His answer was of special interest to me, because I was on the losing side of Grutter while working as part of the Center for Individual Rights team that represented the plaintiffs in that case and the companion case of Gratz v. Bollinger.

Even better was Alito's recounting of how diversity "made an enormous contribution" to the law school seminar he taught on civil liberties and terrorism. Of the four examples of diversity he gave, only one involved race or ethnicity. The other three involved viewpoints, personal experiences, and job experience. Schools may not understand that diversity is more than skin deep, and courts may pay little more than lip service to the concept, but Judge Alito's seminar story subtly but effectively made the point.

Finally, for the record, Sen. Feingold was incorrect when he stated that "in Gratz and Grutter, seven of the nine justices – all but Justices Scalia and Thomas – reaffirmed . . . that the state has a compelling interest in promoting diversity in the classroom." The truth is that Chief Justice Rehnquist did nothing of the sort. He took no position on the compelling interest issue.

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