Lee C. Bollinger Discusses Affirmative Action in Harvard Law Review Forum

April 12, 2016

For the better part of four decades, the Supreme Court discussion about affirmative action, as it occurs in legal briefs, oral arguments and opinions, has been of one narrow stripe: the Court typically considers whether a white student has been harmed by allegedly unnecessary and overly broad university programs and policies for creating a diverse student body. The debate then centers on whether there is a state (i.e., public) interest in securing the educational benefits that flow from diversity and whether schools are employing the narrowest available means for achieving those benefits.

In a Harvard Law Review Forum article published today, "What Once Was Lost Must Now Be Found: Rediscovering an Affirmative Action Jurisprudence Informed by the Reality of Race in America," Columbia University President Lee C. Bollinger urges us not to accept these existing parameters uncritically. As president of the University of Michigan, Bollinger led the school’s legal defense in Grutter v. Bollinger and Gratz v. Bollinger, Supreme Court rulings that in 2003 preserved diversity as a justification for affirmative action. In the years since, he has continued to write and speak frequently about the value of affirmative action in achieving racial diversity in higher education.

His article reminds us that for a brief period, from the Court's landmark Brown v. Board decision in 1954 until its ruling in Regents v. Bakke in 1978, there was in fact an alternative and less constricted constitutional context for understanding affirmative action. When, in Bakke, the Court abandoned its post-Brown openness to considering the reality of race in America, Justice Marshall immediately called it an egregious and costly mistake. More recently, Justices Ginsburg and Sotomayor have advocated for a return to a broader framework for the constitutional debate over affirmative action. Tracing the path from Brown to Fisher v. University of Texas, the case soon to be ruled upon by the Supreme Court, President Bollinger suggests that we should move beyond the sterile and narrow range of discussion that the Court has enshrined as constitutionally permissible.