The Legacy of Grutter: How the Meredith and Pics Courts Wrongly Extended the 'Educational Benefits' Exception to the Equal Protection Clause in Public Higher Education

Abstract

This term, the Supreme Court will decide two cases that will reshape the Equal Protection landscape. In 2003, the Court decided Grutter v. Bollinger, 530 U.S. 306 (2003), holding that the University of Michigan Law School had a compelling state interest in a diverse student body that justified its race-based admissions policy. With near-unanimous support of the academic literature, lower courts seized on Grutter's diversity rationale to uphold race-based assignment plans in K-12 public education. In June, 2006, the Court accepted certiorari in two of these cases - Meredith v. Jefferson County Public Schools, 126 S.Ct. 2351 (2006), and Parents Involved in Community Schools v. Seattle School District, No. 1 (PICS), 126 S.Ct. 2351 (2006) - to decide whether Grutter's diversity rationale could be extended outside the context of public higher education. This Article argues that the Meredith and PICS courts wrongly extended Grutter's rationale to K-12 public education. First, Grutter's diversity rationale is based on shaky social science and should for that reason be contained. Second, Grutter by its own terms limits the Court's holding to the context of public higher education and leaves undisturbed earlier precedent that governs race-based policies in K-12 public education. Third, the Grutter rationale, which the Court based on deference to the university's First Amendment right to decide that diverse viewpoints are necessary to its educational mission, has no application to school districts. Fourth, Grutter's diversity rationale opens a Pandora's Box when extended beyond public higher education. Fifth, even under Grutter, narrow tailoring demands that race-neutral alternatives be explored, but the Meredith and PICS courts failed to hold school districts to this requirement. As this Article explains, race-neutral alternatives are available to school districts - and such alternatives have worked - both to diversify classrooms and to enhance the academic achievement of all children.