Affirmative Action: Looking Forward

The end of June brings a peculiar frenzy to those who follow the Supreme Court. After the long, slow winter months of unanimous rulings and technical cases that only a lawyer could love, the Court, like Hollywood, saves the blockbusters for summer. This summer did not disappoint. On the final days of the Term, the Court issued two decisions that drew marquee attention. Both were written by Stanford graduates. 

In one, the Court, overturning a 17-year-old precedent, declared that the right to privacy bars the state from treating sexual intimacy between consenting adults as a crime, including for those in gay relationships. Justice Anthony M. Kennedy CAB ’58) who will be our featured guest at Alumni Weekend 2003, wrote the majority opinion. 

In the other, the Court reaffirmed a 25-year-old precedent that had permitted the limited use of race preferences in university admissions, upholding the University of Michigan Law School’s admissions policy against an equal protection challenge by rejected white students. Justice Sandra Day O’Connor ’52 CAB ’50) cast the decisive vote and wrote the statesmanlike opinion of the Court. 

There have always been two very different defenses of affirmative action. One is backward looking, and sees race preferences as a remedy for past sins of discrimination.This rationale creates tension, however, if it appears that non-victims benefit and non-sinners pay. 

The other sees racial diversity as vital to the effective functioning of major institutions in society. This rationale, which is more forward looking and functional, was embraced by a host of amici curiae who filed briefs in support of Michigan, from Stanford University and the Association of American Law Schools, to Fortune 500 corporations and retired leaders of the U.S. military. 

Justice O’Connor’s opinion restated the diversity rationale beyond the contours sketched in the 1978 Bakke opinion. She reiterated that “attaining a diverse student body is at the heart of the Law School’s proper institutional mission,” in part because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when students have “the greatest possible variety of backgrounds.” 

Anyone who has taught at Stanford Law School can testify to that. Minority students comprise nearly one third of our student body, and US News & World Report ranks us among the most diverse of any top law school in its “diversity index.” Our classrooms are greatly energized as a result. And our “alphabet organizations”-BLSA, SLLSA, ALSA, and APILSA-also produce some of the best and liveliest events in our ongoing public intellectual life outside of class. 

But more important, as Justice O’Connor noted, racially diverse students become racially diverse alumni. Diversity, she wrote, is important because universities, particularly law schools, “represent the training ground for a large number of our nation’s leaders,” and “in order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” 

As of course the path to leadership from Stanford Law School well attests. Countless law firms, companies, courts, and government offices have minority graduates of Stanford Law School in major leadership positions. We celebrate this fact each year at our popular Alumni of Color event at Alumni Weekend. And our minority alumni help recruit each new class; we benefited especially this year from the work of devoted alumni who helped us to redress last year’s unusual shortfall in the number of African-American male first-year students. 

Of course we look in our admissions to diversity in its broadest sense-to all the many ways, not limited to race, in which a portfolio of different backgrounds, talents, and ambitions can produce the best mix of leaders and problem solvers in generations to come. 

We could fill the class many times over if we just looked to the very highest numbers. But as Justice O’Connor wrote approvingly of the Michigan Law School, we instead “engage in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.” This means that our graduates include Navy SEALS, jazz musicians, teachers, and start-up entrepreneurs, as well as the most accomplished students just graduating from college. 

We’re very proud of how we do all this. And we’re very pleased to have the blessing of the United States Supreme Court in paying attention to diversity while we do it.