HOW COMPELLING DOES COMPELLING HAVE TO BE?: A MISSED OPPORTUNITY TO REFRAME A COMPELLING GOVERNMENTAL INTEREST IN AFFIRMATIVE ACTION IN THE STUDENTS FOR FAIR ADMISSIONS CASES
By: Chad Nowlan, Volume 107 Staff Member
This fall the Supreme Court heard oral arguments in two cases brought by Students for Fair Admissions (SFFA), a self-described “nonprofit membership group of . . . students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.” The two cases––one against Harvard College and the other against the University of North Carolina (UNC)––ask the same key question: should the Supreme Court overturn Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions?
This Post examines whether the major stakeholders in these cases missed an opportunity to reframe what the government’s compelling interest in affirmative action is. After an evaluation of the Supreme Court’s most significant affirmative action decisions to date, this Post analyzes social science research indicating that an increased representation of Black and Latino students on college campuses decreases the incidence of hate crimes and bias incidents. Finally, this Post advocates for this decrease in violence to be considered the government’s compelling interest, which would survive strict scrutiny since even some of the Court’s most conservative Justices have indicated that stopping or reducing violence could be a compelling enough government interest to justify distinctions based on race.
I. THE GRUTTER PRECEDENT DICTATES THAT THE CONSIDERATION OF RACE IN COLLEGE ADMISSIONS IS ALLOWED WHEN NARROWLY TAILORED
In 2003, the Supreme Court ruled in Grutter that the Constitution “does not prohibit [a school]’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the education benefits that flow from a diverse student body.” To achieve this “compelling interest,” schools must aim to enroll a “critical mass” of underrepresented minority students. Writing for the majority, Justice O’Connor stated: “[this] Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved.”
Nearly twenty years later, the progress of meaningfully enrolling underrepresented minority students has been “painfully slow.” With two cases explicitly asking the Court to reconsider this decision, the government must examine whether the compelling interest it advocated for in 2003—“obtaining the educational benefits that flow from a diverse student body”—is still the best argument to survive a strict scrutiny analysis of affirmative action programs, assuming they are narrowly tailored.
II. SFFA CHALLENGES THE “CRITICAL MASS” FRAMEWORK WHILE QUESTIONING THE BENEFITS OF A DIVERSE STUDENT BODY
SFFA filed suit against Harvard in 2014, representing a group of anonymous Asian American students who were denied admission. The suit against UNC was filed the same year. Both cases allege that each school’s holistic admissions process is unconstitutional, and violates Title VI of the Civil Rights Act by engaging in racial balancing, overemphasizing race in the admissions process, and rejecting workable race-neutral admissions alternatives. In its brief to the Supreme Court, SFFA calls into question the “critical mass” framework and states that “the Court [in Grutter] required no proof that a critical mass of underrepresented minorities was actually necessary to secure any educational benefits.”
But this brief is not the first time that dissatisfaction with the concept of a “critical mass” has been expressed. In a partial dissent in Grutter, Justice Scalia stated that the goal of obtaining a “critical mass” would fool only “gullible” people since he viewed the concept “a sham cover scheme of racially proportionate admissions.” In Fisher v. University of Texas at Austin, another case concerning affirmative action, Chief Justice Roberts signed onto Justice Alito’s dissenting opinion which questioned the “critical mass” terminology, considering it unworkable since “the term remains undefined” and insists that colleges and universities seek “blind deference” from the Court in their effort to obtain a critical mass of minority students through this lack of a definition.
However, the term need not be treated as undefinable jargon. A “critical mass” is commonly understood in the physical sciences to be “a specific amount of material that will start a chain reaction, causing a sudden, irreversible change of state.” Utilizing a commonly understood, plain textual meaning of “critical mass,” this framework could still be used to support a new compelling government interest in affirmative action: reducing violence.
III. THE GOVERNMENT FAILS TO ARTICULATE A BETTER, WORKABLE JUSTIFICATION FOR MAINTAINING AFFIRMATIVE ACTION
As has been said of the existing rationale for affirmative action: “the premises underlying the diversity rationale for race-based affirmative action are empirically tenuous and theoretically implausible.” Even with a timely opportunity to evoke a new, less amorphous compelling interest in defense of affirmative action, the government has failed to make any meaningful inroads that will save it from the conservative supermajority on the Supreme Court. The solution to this problem rests in Justice Thomas’s partial dissent in Grutter.
In discussing the limited circumstances in which he believes the government may have a compelling interest in drawing distinctions based on race, Justice Thomas stated that this interest must be a “pressing public necessity.” He went on to opine: “I conclude that only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a pressing public necessity.” Here, Thomas grants an opportunity: if the government can establish that a narrowly tailored affirmative action program prevents incidents of violence, it may just survive strict scrutiny.
IV. THERE IS A CLEAR CORRELATION BETWEEN DIVERSITY AND PREVENTING VIOLENCE
Recent research indicates that “the occurrence of racial incidents on college campuses . . . seems to be increasing.” Hate crimes, which can be defined as “criminal offense[s] that [are] motivated, in whole or in part, by the perpetrator’s bias against the victim(s) based on their race, ethnicity, religion, sexual orientation, gender, gender identity, or disability,” are among the racial incidents that are becoming all too common college campuses. Data from the U.S. Department of Education shows that 757 of the bias incidents that occurred on college and university campuses in 2019 were classified as hate crimes. “This translates to an average of 5.1 hate crime incidents occurring per 100,000 full-time-equivalent students enrolled.” From this same data year, “[r]ace was the motivating bias in 45 percent of reported hate crimes (341 incidents), while 12 percent (94 incidents) were motivated by ethnicity.” Even with these staggering numbers, “there are strong reasons to believe that the problem of hate crimes is more widespread than any statistics are likely to report” due to the reluctancy of victims to come forward and confusing reporting policies and procedures.
Despite this trend, studies have demonstrated that campuses with meaningfully larger numbers (what one may dare to call a critical mass) of underrepresented minority students have a decreased likelihood of hate crimes and bias incidents. One such study found that “the percent of students who were Black or Latino at [certain] institutions of higher education had a significant relationship with reported hate crimes,” specifically finding that “as the percentage of Black and Latino students increased, the overall reported ethnic/race-based hate crimes decreased, even when controlling for a variety of other factors that can influence reporting rates.” Researchers have hypothesized that “as tokenism is avoided and more Black and Latino students are enrolled and the overall composition of the student body is more diverse,” there is a corresponding decrease in bias incidents as “diversity seems more commonplace.” While it is not clear whether this decrease in racially-motivated incidents “is due to changes in the institution’s climate from institutional sources or from the students themselves,” it seems glaringly obvious that enrolling a “critical mass” of minority students does, indeed, push a campus into an “irreversible change of state.”
V. THE MISSED OPPORTUNITY
By failing to argue that affirmative action’s benefit could be that it decreases bias incidents and hate crimes, the government forces Harvard and UNC to fall back on the same arguments used to defend affirmative action nearly twenty years ago. While more research on the topic would be helpful, the existing scholarship clearly shows that the number of racially motivated bias incidents and hate crimes decreases significantly at colleges that enroll more underrepresented minority students (particularly Black and Latino students). The abstract idea of “cross-racial understanding” will likely fail to garner enough support among the current justices on the Supreme Court, leading, unfortunately, to Grutter’s demise.
If the government had successfully re-framed its compelling interest to be one of increasing safety and decreasing violence for students of color, the days of Grutter may not feel so fleeting. In a society which battles over facts and truth there is no room for abstract. The government, Harvard, and UNC would all benefit from evaluating whether the meaningful presence of minority students on their campuses does more than just benefit the learning, development, and cross-racial understanding of white students. They should conclude that protecting Black and Latino students from bias incidents and reducing the number of hate crimes on campus are compelling interests in and of themselves. Perhaps even Justice Thomas would agree.
 About, Students for Fair Admissions, https://studentsforfairadmissions.org/about/ [https://perma.cc/4KX9-SEFP] (last visited Oct. 10, 2022); see also Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 20-1199 (U.S. argued Oct. 31, 2022), Students for Fair Admissions, Inc. v. Univ. N.C., No. 21-707 (U.S. argued Oct. 31, 2022).
 539 U.S. 306 (2003).
 Nina Totenberg, Can Race Play a Role in College Admissions? The Supreme Court Hears the Arguments, NPR (Oct. 31, 2022, 5:00 AM), https://www.npr.org/2022/10/31/1131789230/supreme-court-affirmative-action-harvard-unc [https://perma.cc/ER6W-2PC7].
 Grutter, 539 U.S. at 343.
 Vijay S. Sekhon, Maintaining the Legitimacy of the High Court: Understanding the “25 Years” in Grutter v. Bollinger, 3 Conn. Pub. Int. L.J. 301, 307 (2004).
 Grutter, 539 U.S. at 343.
 See generally, Sade Calin, Coming Full Circle: Affirmative Action in Higher Education, 2018 N.J. Law. 51, 52 (2018) (explaining that “strict scrutiny is the proper standard by which to consider any classifications based on race or ethnic background, as they are inherently suspect.”).
 P.R. Lockhart, The Lawsuit Against Harvard That Could Change Affirmative Action in College Admissions, Explained, Vox (Oct. 18, 2018), https://www.vox.com/2018/10/18/17984108/harvard-asian-americans-affirmative-action-racial-discrimination [https://perma.cc/G9ZD-94PJ].
 Background, Admissions Case, https://admissionslawsuit.unc.edu/lawsuit/background/ [https://perma.cc/36MP-L2CM] (last visited Oct. 10, 2022).
 Id.; The Lawsuit, Harvard Admissions Lawsuit, https://www.harvard.edu/admissionscase/lawsuit/ [https://perma.cc/4PBL-EV84] (last visited Oct. 10, 2022).
 Brief for Petitioner at i, Students for Fair Admissions (2022) (No. 21-707); but see Transcript of Oral Argument at 57–60, Merrill v. Milligan, No. 21-1086 (Oct. 4, 2022) (highlighting Justice Jackson’s argument that the Fourteenth Amendment does not require race-neutral alternatives since it is clear, through an originalist interpretation, that the Amendment was adopted “in a race conscious way.”).
 Brief for Petitioner, supra note 13, at 54–55 (internal citations and quotation marks omitted).
 Grutter v. Bollinger, 539 U.S. 306, at 346–47 (U.S. 2003) (Scalia, J., concurring in part and dissenting in part) (internal quotation marks omitted).
 579 U.S. 365 (2019).
 Id. at 391 (Alito, J., dissenting).
 Jessica Kalbfeld, Critical Mass for Affirmative Action, The Sociologue (Nov. 25, 2019), https://www.jessicakalbfeld.com/blog/2019/11/22/critical-mass-for-affirmative-action [https://perma.cc/LCL9-MCK4].
 Peter H. Schuck, Assessing Affirmative Action, 20 Nat’l Affs. 76, 76 (2014).
 Grutter, 529 U.S. at 353 (Thomas, J. concurring in part and dissenting in part) (internal quotation marks omitted).
 Id. (internal quotation marks omitted) (emphasis added).
 Juan Carlos Garibay, Felisha A. Herrera, Marc P. Johnston-Guerrero & Gina A. Garcia, Campus Racial Incidents, Hate Crimes, and White Male and Female Students’ Racial Attitudes, 91 J. Higher Educ. 1, 1 (2019).
 National Center for Education Statistics, Hate Crime Incidents at Postsecondary Institutions, Condition of Educ. (2022), https://nces.ed.gov/programs/coe/pdf/2022/a22_508.pdf [https://perma.cc/F9ZB-RJ3W].
 See, e.g., Nella Van Dyke & Griff Tester, Dangerous Climates: Factors Associated with Variation in Racist Hate Crimes on College Campuses, 30 J. Contemp. Crim. Just. 290, 291 (2014) (“In contrast to the race-blind image provided by some social commentators, U.S. colleges and universities are often racialized settings that present barriers and hostility to minority students.”); Ryan A. Miller, Tonia Guida, Stella Smith, S. Kiersten Ferguson & Elizabeth Medina, A Balancing Act: Whose Interests Do Bias Response Teams Serve?, 42 Rev. Higher Educ. 313, 314 (2018) (citing seven studies from the past twenty years to highlight the negative experiences faced by students of color, LGBTQ+ students, students with disabilities, and women on college campuses).
 National Center for Education Statistics, supra note 22 at 3.
 Id. at 5.
 U.S. Dep’t of Just., Hate Crimes on Campus: The Problem and Efforts to Confront It, at 4 (2001).
 See, e.g., Rebecca L. Stotzer & Emily Hossellman, Hate Crimes on Campus: Racial/Ethnic Diversity and Campus Safety, 27 J. Interpersonal Violence 644 (2012) (finding that “those schools that are most successful in recruiting the hardest to recruit minorities . . . report fewer hate crimes on campus.”).
 Id. at 654–55.
 Id. at 655.
 See supra note 18 and accompanying text.
 See supra note 7 and accompanying text.