The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
While doing some research today, I came across a student article (known as a "note" in law review parlance) from the 2006 Yale Law Journal with a provocative title: "Grutter at Work: A Title VII Critique of Constitutional Affirmative Action."
The title made it sound like the note would argue that Title VII of the 1964 Civil Rights Act is an independent limitation on racial preferences in the workplace, and thus Grutter's "constitutional" rationale for the pursuit of "diversity" being lawful in the educational context, i.e., that academic freedom permits universities to take diversity into account if they think it will enhance students' education, could not be applied in the employment context.
I was surprised that a Yale law student would publicly take a position against affirmative action, even if only via statutory interpretation, even more surprised that the Journal would publish it, and also surprised that I had not heard about any controversy surrounding its publication.
Then I glanced at the author's name. A professor at Columbia now! Now my mind went from surprise to "virtually impossible."
I don't know the author personally and I'm not familiar enough with her work to know her ideology, but at that point I deduced that the title must be misleading, and the author must have been arguing in favor of affirmative action, and against importing any restrictions from the constitutional context of state university to the private employer context. I just couldn't imagine anyone getting hired by a school like Columbia these days who wrote her student note critical of affirmative action.
I then went to the abstract, which confirmed my deduction: "Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion's narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion's conception of narrow tailoring. Grutter, in turn, can productively inform employment discrimination law. The opinion reaffirms principles of contested Title VII precedent and suggests how employers might use affirmative action to meaningfully integrate their workforces."
There is something very rotten in the state of the legal academy when you can make the deduction I made, on the grounds I made it.