Having labored in these vineyards for many years, I’d like to make just three quick points regarding the Harvard and UNC-Chapel Hill racial-preference cases that will be argued before the Supreme Court on October 31.
First, it’s essential that the Court revisit and overturn the Grutter v. Bollinger ruling that the purported educational benefits of a diverse student body are “compelling” enough to justify racial discrimination at all. A ruling that Harvard’s policy was simply not “narrowly tailored” to this end will accomplish little or nothing, since schools (including the defendants in the current cases) will just claim (however fancifully) to meet whatever narrow-tailoring restrictions are set out.
Second, it’s important on this “not compelling” point to recognize not only that the purported benefits of “diversity” are dubious, but that the undeniable costs are enormous (getting the damning evidence of mismatch, among other things, before the Court). On that point the Court might find useful Chief Justice Roberts’s quote in this piece I wrote ten years ago, urging (successfully) the Court to take the Fisher v. University of Texas case — and by the way, except for one paragraph specific to that litigation, I think that everything I said then remains relevant; see also the post here urging (again successfully) the Court to take the Harvard case. There was a useful paper by Althea Nagai last year that discusses the social science buttressing this point — that is, that the purported benefits of “diversity” are dubious while the costs are undeniable and high.
Finally, here are links to three items that develop this approach and contain other odds and ends that in my humble opinion might be worth reading: (a) the amicus brief that my organization filed in Grutter itself; (b) my law review article expanding a bit on the points made in our Grutter brief, but written just after that decision came down; and (c) this post from SCOTUSblog, which addressed the Fisher case but is still all relevant.