The Diversity Rationale for Affirmative Action in Employment After Grutter : The Case for Containment

The Supreme Court's decision in Grutter v. Bollinger suggested that the government had affixed its seal of approval on the widespread use of affirmative action in employment. It created a potentially expansive diversity rationale for affirmative action that reaches beyond higher education and extends to employment in both the public and private sectors. Other courts anticipated this doctrinal shift before Grutter and also cautiously expanded it after Grutter. The Supreme Court will be forced to contend with these severe implications at some time in the future. Though an expanded diversity rationale is a plausible result of the reasoning in Grutter, it is not a necessary outcome. Grutter concerned a factual context with arguable countervailing constitutional considerations that the employment contexts do not present. Therefore, the Supreme Court will confront a clear choice: Will it preserve the guarantee of protection from racial discrimination, or will it instead adopt the more expansive components of its earlier diversity rationale in new areas? The latter more permissive course appears consistent with the Grutter Court's policy views of the benefits of racial diversity, but the course of containment is more in line with the Court's longer established policy of confining the permissible bounds of exceptions to equal protection and Title VII. Furthermore, affirmative action in employment offers only marginal operational benefits to employers, needlessly injures innocent individuals, and promotes insidious group polarization. Accordingly, if it retains Grutter, the Supreme Court should confine Grutter to the context of higher education. The Court should declare affirmative action in public sector employment to be unconstitutional under equal protection, and it should declare affirmative action in private sector employment to be illegal under Title VII