117 Harv. L. Rev. 113, *

Copyright (c) 2003 The Harvard Law Review Association

Harvard Law Review

November, 2003

117 Harv. L. Rev. 113 THE SUPREME COURT, 2002 TERM: COMMENT: ADMISSIONS RITUALS AS POLITICAL ACTS: GUARDIANS AT THE GATES OF OUR DEMOCRATIC IDEALS Lani Guinier* * Bennett Boskey Professor of Law, Harvard Law School. Many thanks to colleagues and friends David Barron, Gerald Frug, Heather Gerken, Martha Minow, Pamela Karlan, Susan Sturm, Gerald Torres, and David Wilkins, who graciously reviewed drafts of this Comment. I am confident the piece would have been much better had I been agile and deft enough to follow all of their advice. I am also indebted to the following students who ably, often brilliantly, assisted in the research, editing, and development of the ideas discussed herein: Sarah Boonin, Garrett Moritz, Elizabeth Kennedy, and Samuel Spital. Danielle Gray, Bert Huang, and Jeannie Suk read and commented on earlier drafts, generously contributing their insights and critiques. Nicole Birch, Jennifer Hochschild, Elizabeth Lambert, Meaghan McLaine, David Montejano, Janet Moran, Stacey Sublett, and Geoffrey Wyatt provided skilled research assistance or help with sources, often under enormous time pressure. I also thank the editors of the Harvard Law Review for their patience, creativity, and meticulous attention to detail. SUMMARY: ... Institutions presumably align these high-stakes moments of civic pedagogy with their educational agenda: to produce knowledge, to promote learning, and to help individuals realize their intellectual, athletic, or artistic potential. ... In the end, sponsored mobility may be only marginally better than contest mobility at allocating access to higher education in a way that is consistent with democratic principles. ... Particularly revealing is the interplay between Justice O'Connor's opinion for the Court in Grutter, upholding the University of Michigan Law School's use of race to promote sponsored mobility, and Justice Thomas's dissent, criticizing sponsored mobility while shifting between a rhetorical preference for contest mobility and an analysis that is more compatible with structural mobility. ... Given the reality that race still codes opportunity, sponsored mobility mediated through a commitment to ideas of holistic diversity is certainly more benign than contest mobility mediated through a commitment to false notions of scientific precision. ... To the extent institutions of higher education make judgments that

tend to prefer those who are already privileged and then use diversity in the sense of sponsored mobility to cushion that preference, race remains a visible target that may be misused to undermine public confidence in the educational judgment of these institutions. ... TEXT: [*114] Just as the hierarchy of the Church was the main avenue of advancement for the talented and ambitious youth from the lower orders during the medieval period, and just as the business enterprise was responsible for the nineteenth-century rags-to-riches dream ... , so the campus community has now become the principal guardian of our traditional opportunitarian ideals. 1 Every year, selective colleges and universities engage in admissions rituals to reconstitute themselves. 2 Institutions presumably align these high-stakes moments of civic pedagogy 3 with their educational agenda: to produce knowledge, to promote learning, and to help individuals realize their intellectual, athletic, or artistic potential. The moment [*115] when admissions decisions are mailed is also fraught with political consequences that reach beyond the classroom to the boardroom, the legislature, and the kitchen table. 4 At selective institutions of higher education, admissions decisions have a special political impact: rationing access to societal influence and power, and training leaders for public office and public life. 5 Those admitted as students then graduate to become citizens who shape business, education, the arts, and the law for the next generation. 6 Admissions decisions affect the individuals who apply, the institutional environments that greet those who enroll, and the stability and legitimacy of our democracy. 7 They are political as well as educational acts. 8 [*116] At the same time that higher education is considered a democratic and educational necessity to many, it remains beyond the reach of all but a few. 9 Indeed, a variety of ideological, 10 demographic, 11 economic, 12 and sociological 13 forces have converged to make seats in college very dear and the criteria for obtaining them very stringent, in ways that correlate with class, geography, and race. 14 As a result, the few who enjoy access to higher education tend to be already quite privileged, although more low-income students now seek college degrees than ever before. In short, higher education has become a "gift from the poor to the rich." 15 [*117] In the last twenty-five years, however, it is the consideration of race that has dominated the conversation about admissions to selective colleges and universities. 16 The role of race in admissions has generated public and media attention through referenda, initiatives, and court challenges. 17 The Supreme Court's decisions last Term in Grutter v. Bollinger 18 and Gratz v. Bollinger 19 are

the latest and perhaps most significant evidence that race-based affirmative action was at risk until the business community, the military brass, and educational leaders rallied in its defense, filing an unprecedented number of amicus briefs with the Court. 20 In Grutter v. Bollinger, the case affirming the use of race in admissions decisions at the University of Michigan Law School, the Supreme Court recognized the relationship between equal opportunity and competence, and drew much of the Grutter opinion's energy from the public character of educational institutions and the role they play in a democracy. 21 The Court determined that diversity is a compelling governmental interest that justifies certain considerations of race. 22 The opinion is a sweet victory for those who have long championed [*118] the need to include underrepresented people of color in the educational elite. And because it embraces democratic legitimacy as a justification for diversity, the opinion also offers a long-overdue opportunity to refocus the conversation on the distributive and functional role of higher education in a democracy. Some have construed this opportunity as a warning, as Justice O'Connor's majority opinion in Grutter includes a puzzling clause stating that she expects the need for considerations of race in admissions decisions to expire after twenty-five years. 23 According to former Harvard University President Derek Bok, for example, this twenty-five-year expectation is more than simply a reminder of the need to reevaluate race-consciousness in order to satisfy the narrow tailoring element of strict scrutiny: rather, it is a "warning to do something about the underlying problem." 24 Universities, in other words, are not living up to their educational and democratic missions: they need to do more about the achievement gap that makes affirmative action necessary; 25 the environmental gap that socially isolates white students who, unlike students of color, spend most of their time with same-race friends in college; 26 and the teaching and learning gaps that disable [*119] professors from reaching out to mentor students of color. 27 At the same time, it is important to acknowledge that the appearance of sharp boundary lines in defining race is problematic for many members of the public and the Court. There is a pervasive reluctance to view race in categorical terms. 28 This resistance to racial categorization affects members of the public, not just the crusaders against affirmative action who, despite their defeat at the Supreme Court, seem [*120] to have lost none of their zeal. 29 Now, with the Court's imprimatur on affirmative action, perhaps those who still feel excluded will return the conversation to more foundational concerns about the democratic purpose of higher education. Indeed, despite the deep racial cleavages that continue to fragment our society, race has the potential to push educational and political leaders to align admissions choices with institutional mission in ways that open up access to higher education to poor and working-class whites as well as to blacks and Latinos. Properly deployed, racial literacy, or the ability to read race in conjunction with institutional and democratic structures, may enable the building of a coalition that

starts a larger conversation at the point where educational selection and democratic values meet. 30 Race, in other words, reveals rather than produces the stress on institutional resources that undermines the connection between education and democracy, a connection that the Court in Grutter and Gratz recognized as essential. 31 Because race is inextricably intertwined with every period in American history, from our founding as a constitutional democracy to current patterns of private wealth formation, it is a formidable diagnostic and sociological tool. 32 Used as a lens to peer beyond the pretense of the debate, race helps detect the deeper issues confronting public institutions of higher education. 33 [*121] In part because it is both visible and controversial, race will remain salient. 34 Yet the very salience of race extends well beyond the current controversy over whether it should be a fixed category for admissions choices. Race is the thin but highly visible edge of the wedge at the intersection of the value and scarcity of educational opportunity. Many Americans, for example, express their dissatisfaction with admissions protocols by focusing on the highly visible choices surrounding affirmative action. 35 But a more significant source of their dissatisfaction is our failure as a society to grapple with the complexity and arbitrariness of our current normative conceptions of merit. These flawed formulations of merit have failed to allocate scarce educational opportunities in a manner that is consistent with democratic values. 36 Thus, it is this overemphasis on test scores and school rankings, and not affirmative action, that leads to the exclusion of poor and working-class whites, especially those from rural areas. 37 Using race to probe the underlying inequalities in the admissions process may create surprising [*122] opportunities for grassroots coalitions that include both people of color and poor and working-class whites, and that unite urban and rural constituencies. 38 The controversy surrounding affirmative action has temporarily diverted the public's attention from a long-overdue conversation about the responsibilities of universities as engines of social mobility, producers of knowledge, and practitioners of democracy. A new public conception of race will be more likely to emerge if the civil rights community uses the Grutter and Gratz decisions to broaden the conversation about educational opportunity. Civil rights activists might seize this moment to build coalitions with working-class and poor whites by acknowledging that they too are underrepresented on selective public college campuses. After all, it was a broad coalition representing the military, business, and educational elite that created the opening for the Grutter decision. It may be that only a similar, albeit more grassroots and political, mobilization will protect that victory and begin the process of developing genuinely transformative approaches to combating the structural inequalities embedded in the admissions process. In this regard, it is useful to show the ways in which race operates in conjunction with, rather than in opposition to, class and geography. 39 The goal of this Comment is to explore the post-Grutter opportunity to move the conversation in a different direction. Race can help effect this change by linking

the educational and democratic missions of public colleges and universities. 40 The Court's opinions in Grutter and Gratz change the scale of what we are confronting. They allow us to take advantage of what has emerged as a national consensus among university, business, and military leaders on the value of racial inclusiveness. 41 Indeed, these decisions may bring us closer to what Bruce Ackerman calls a "constitutional moment" of "higher lawmaking" if they energize popular deliberation about the systemic and social purposes of higher education in a multiracial democracy. 42 Although the [*123] conversation thus far has focused on the role of race in admissions decisions, it has the potential to place "a new [agenda] at the center of American political life." 43 This Comment proceeds in five parts. Part I explores the democratic and public missions of higher education, both normatively and historically. I set the issue of college and university admissions - rather than simply affirmative action in admissions - on the table. 44 Part II examines the criteria that universities currently use to populate their classrooms, and evaluates those criteria using the normative and historical framework of Part I. I offer three different models of upward mobility for assessing these criteria: contest mobility, sponsored mobility, and structural mobility. I use these models to highlight the dominant role that upward mobility plays in understanding the democratic mission of higher education. An examination of different conceptions of upward mobility reveals that, in the university admissions context, the concept of merit is inexorably shaped by the broader public debate, or lack thereof, about the social purposes of higher education in general. Part III discusses the Supreme Court's decisions in Grutter and Gratz and attempts to situate the opinions of Justices [*124] O'Connor, Thomas, and Ginsburg in this larger framework. 45 In Part IV, I conclude that an analysis of these opinions suggests the need for a broader, racially literate conversation about the social purposes that universities fulfill. This conclusion is consistent with the forward-looking tone of Justice O'Connor's majority opinion in Grutter, as well as the warning that more must be done implicit in her expectation that race-consciousness will no longer be necessary in twenty-five years. The importance of this broader conversation also squares with Justice Thomas's skepticism about Justice O'Connor's deference to elites, as well as the reminder in Justice Ginsburg's Gratz dissent that social realities reflect huge and continuing racial disparities. Finally, Part V accepts the Court's invitation to continue this conversation about the social purpose of higher education, and concludes that universities are far from achieving equilibrium in their attempt to respond to the demands of the future while holding on to the best of the past. I argue that universities need to seek a new approach to admissions that is flexible enough to meet their own internal needs, as well as the external needs of the communities they serve. This approach should promote the widely held view of education as a means of upward mobility, legitimate the values of democracy, and use race as both a trigger and a continuous source of information for thinking about these complex issues. In addition, this approach should put the interdependence of race, class, and geography to work in

conjunction with a deliberative conversation about the future of higher education. Such a "reflective conversation with the situation" 46 may enable our society to confront directly the problem of apportioning scarce public resources in ways that align the educational and democratic missions of higher education with the broader social purpose these institutions serve at the local, state, and national levels. 47 [*125] I. The Democratic and Educational Missions of Higher Education: Admissions Judgments as Political Acts Institutions like the University of Michigan depend on public support and public confidence to operate. Public commitments inform their stated mission, 48 which is deeply rooted in principles of populist education and service to society at large. 49 The mission statements of selective public universities feature three common concerns: building students' knowledge, advancing existing knowledge, and producing a cadre of future citizens and leaders who are both willing and able to serve the public good. 50 These purposes date back to the founding of the American republic. Benjamin Franklin, for example, argued that colleges should teach citizens about practical subjects. 51 Thomas Jefferson believed that public higher education should "develop both leaders and the citizens capable of monitoring them." 52 When Jefferson [*126] founded the first public university, the University of Virginia, in 1819, he had explicitly democratic principles in mind, including the education of citizens and officials, and the training of public leaders. 53 A commitment to education as a vehicle for the advancement of individual opportunity and broader democratic values was also true of the land grant colleges, which obtained public land in exchange for explicit commitments to public service. 54 This broad commitment to public service also characterizes the present-day mission statements of many elite private institutions, which use the language of "service" to anchor their educational purpose. 55 Thus, the historical guiding principle [*127] of both public and private universities has been to educate people who would then better serve society as workers, citizens, and leaders. It is this dual commitment to individual opportunity and democratic principles that the Court in Grutter embraces. 56 Although education has been linked to opportunity since the early days of the republic, higher education was originally a province reserved for wealthy white men. 57 During the first half of the twentieth century, women, Jews, and blacks were the victims of arbitrary quotas or formal exclusionary policies sanctioned by law. 58 During the 1950s and 1960s, however, legal challenges, social movements, and a participatory conception of individual rights 59 helped pressure these institutions of higher education to open their doors - albeit only a crack - [*128] to those who had been shut out. 60 Institutions that had once been bastions of elite privilege began admitting women and people of color for the first time. 61 At the same time, American society increasingly highlighted the importance of

higher education to democratic values by extending the opportunity to attend college to more people. The GI Bill, Pell Grants, the Cold War, and the move to a global and information economy made higher education instrumental to our society's understanding of the relationship between an educated populace, a representative group of leaders, a commitment to public service, and national security. 62 These developments also turned college education into a primary engine for economic and social upward mobility in the last part of the century. 63 [*129] Meanwhile, as more people saw higher education as a necessity for societal as well as individual reasons, government funding for this essential public good shrunk: states shifted resources from education to the criminal justice system, 64 the federal government cut Pell grants, 65 and state revenues plummeted, leading to higher tuition and reduced financial aid. 66 This shift in funding priorities was driven in part by [*130] an ideological shift during the Reagan era. Higher education was presented as a private benefit to be financed by the individual, 67 instead of a public good to be funded by the government. 68 As a result, higher education became a scarce, indispensable, and competitive individual resource. As more people wanted in, colleges and universities became more selective. For example, in the 1960s, The University of Texas admitted almost all of its applicants; 69 for the 2001-2002 academic year, it admitted only 64% of its applicants. 70 Similarly, for the 1949-1950 cademic year, Harvard College admitted about 64% of its 2600 or so applicants, while for the 2002-2003 academic year, it admitted less than 10% of its 21,000 or so applicants. 71 Many of these institutions valued [*131] their "selectivity" as an element of their identity or chose for other reasons not to add sufficient resources to keep up with increased interest. 72 In his book The Big Test, Nicholas Lemann recounts this change, which was prompted in large measure following World War II by James Conant, then-President of Harvard University. 73 Conant wanted to see elite institutions shift from a WASP establishment of hereditary privilege that emphasized entitlement and obligation, to a more democratic accounting that fostered an even greater sense of social responsibility and a less paternalistic view toward public service. 74 In Conant's view, such educated talent would serve the nation in exchange for support from taxpayers. But while Conant wanted to disturb the view that college was a hereditary privilege, he also desired to maintain the elite and selective status of these institutions. Consistent with Conant's vision, institutions began to seek a fair and efficient set of selection criteria that would preserve their elite status, which had been derived from association with bloodlines and reinforced by the appearance of unattainability. Institutions that once used evidence of "good character" - a proxy for privilege and wealth - switched to ostensibly more democratic indicia of merit. 75 College [*132] admissions officers began to replace the pedigreed "natural" aristocracy of Edmund Burke's world that had dominated elite higher education through the middle of the twentieth century. In the 1950s a "meritocracy" began to substitute "aptitude" for "character" (or family) as the ticket into colleges and

universities. 76 Admissions would proceed from an open calculus rather than a set of private relationships. Excellence through brains, not blood, would become the basis for awarding scarce admission slots. Excellence did not simply cloak elitism, however. It was also associated with a fairness principle, derived from scientifically designed, and thus presumably more objective, criteria. One of the primary vehicles for apportioning access to an increasingly popular yet scarce public resource was the introduction of standardized tests and other potentially objective measures of excellence; such tests enabled university administrators to compare individuals from different demographic, geographic, and social cohorts. 77 This ability to compare had been previously either unnecessary for the public institutions that admitted almost every (white male) applicant, or reserved to headmasters at private prep schools. Because of the perceived ability to manufacture objective evidence of desert, excellence became measurable. Applicants who outscored or outranked their peers on standardized aptitude tests were therefore presumed to be the most qualified, regardless of social class. 78 The premium on allocating access to higher education more democratically and meritocratically led to the development of a testing industry that now functions as one of the primary gatekeepers to upward mobility. Deciding who "deserves" to benefit from admission to selective colleges and universities now occurs within a "testocracy" that claims to sort, evaluate, and rank measurable mental aptitude. 79 The resulting [*133] test scores, together with high school grades, purport to tell us in both real and relative terms about each applicant's potential capacity, which is then deemed the most important evidence of his or her "visible, rankable" merit. 80 To maintain their elite status in terms of democratic "merit" rather than inherited privilege, these institutions had to raise the stakes. 81 Thus, applicants who receive the thick envelopes in April have higher SAT scores than their parents did a generation ago. 82 Unfortunately, along with democratic "merit" came a sense of entitlement without the sense of obligation. 83 Ambition replaced pedigree, but the public spiritedness that Conant envisioned failed to materialize. 84 During the second half of the twentieth century, the pendulum swung dramatically from subjective measures of character to objective measures of excellence; for reasons I describe in the next Part, it soon swung back to more subjective evidence of character to supplement [*134] the quantifiable standards for measuring academic merit. 85 But now character would mean motivation, work ethic, and the ability to overcome obstacles, rather than charisma, athletic skill, and the ability to fit in. Diversity rather than homogeneity became a value. 86 Moving back and forth from subjective to objective to subjective measures, the admissions pendulum never settled on a single, fixed view of merit. Without a stable template for admissions choices, shifts in the values and identities of those

making the choices, as well as the process of selection itself, came to define qualification. 87 Yet the choice of who attends institutions of higher education, both public and private, has personal, institutional, and societal implications. 88 Thus, [*135] admissions decisions are both educational questions and political acts. 89 The task of constituting each class is a political act because it implicates the institution's sense of itself as a community, as well as the larger society's sense of itself as a democracy. 90 Such acts allocate resources in a way that affects those who are admitted to the institution, those who are rejected, those who fail to apply, and those who simply use the institution's selection criteria as an interpretive guide. Thus, they affect all members of society, both directly, as described above, and indirectly, by helping determine future political, economic, and social leaders. Directly or indirectly, taxpayers support these institutions, which function as gateways to upward mobility and help legitimize democratic ideals of participation, fairness, and equal opportunity. 91 At nonselective public colleges, the opportunity to attend is less a function of admissions criteria per se, and more a question of application fees and tuition costs, 92 as well as historical patterns of recruitment, information networks, social capital, and location that determine the demographics of the student body and faculty. Although the nature of the educational environment figures prominently in public discussion of these institutions, the political meaning of the admissions process is often less visible. The term "political acts" seeks to bring to the fore the public dimension, the democratic significance, and the social consequences of gaining admission to these institutions. 93 [*136] This is a descriptive argument: universities already perform an expressive, community-defining function that is not necessarily coextensive with the democratic role they "ought" to play. 94 It is also an intuition: a conversation probing the political act of admissions will trigger a much needed discussion about universities' wide-ranging public responsibilities. The term "political act" also describes inputs that inflect the process of decisionmaking, not just the outputs that help define it. Beyond the democratic significance, the social consequences, and the individual benefits of gaining admission to these institutions, admissions choices have an internal political dynamic. 95 They are located in the heads of the decisionmakers as well as in the world. [*137] II. Contest, Sponsored, and Structural Mobility: Alternative Ways of Conceptualizing the Relationship Between Education and Democracy In this Part, I explore two related aspects of admissions rituals: the process used to make admissions decisions, and the values or goals that seem to animate different views of the selection process. Starting with the goals that inform the process, I identify four important values associated with access to higher education:

individualism, merit, democracy, and upward mobility. Of these four, the value that seems to integrate the other three with higher education is upward mobility. 96 Yet although upward mobility is the value most closely associated with higher education in our collective imagination, 97 all four values are closely intertwined. Upward mobility and individualism are both core values of the American Dream; 98 they legitimate our democratic ideal of equal opportunity [*138] for all. 99 In his history of the French Enlightenment, Marshall Berman describes individualism in perhaps its most favorable light: the right to be yourself, particularly the right not to have your role or status ascribed to you, but to find it for yourself. 100 Individualism was forged in a revolt against feudalism, a system based entirely on ascribed roles. 101 Thus conceived, individualism is deeply connected to democratic ideals of opportunity and upward mobility. Likewise, mobility in America means not just moving out, but also moving up; it refers to sociological as well as geographical relocation in order to take advantage of opportunity. 102 Upward mobility also suggests that we live in a "classless" society - or at least a society in which class is floating, not fixed. 103 At the same time, higher education has built into it the idea of nobility as well as mobility. After all, universities predate the modern state - they were historically limited to an elite. Higher education grants upward social mobility because it is a status marker, not merely a private contract that matches one's skills with an appropriate educational setting to enhance one's learning. [*139] In our society education means opportunity, higher education offers heightened opportunity, and elite higher education confers not just heightened opportunity, but also elevated status. 104 Admissions officers may not view themselves as the "sorting hats" of our society, 105 but many Americans construe the fat or thin envelopes mailed in April as serving just this purpose. Like upward mobility and individualism, meritocracy formally rejects ascribed roles, awarding opportunity based on individual merit rather than inherited status. 106 Those who succeed are presumed to be those who do their best because of effort, not birth. Meritocracy also associates selectivity with excellence. The opportunity to choose among many qualified applicants not only confers status; it automatically connotes merit. Indeed, merit has two ideas of mobility built into it. It suggests criteria for identifying individual capacity for upward mobility. It also suggests the potential to change individual capacity [*140] through educational opportunity 107 - the opportunity to learn in an environment that values excellence, and the opportunity to learn after graduation as the educational credential opens economic and political doors. Democratic values can help shape the allocation of opportunity and status. To the extent principles of fairness, participation, and accountability influence the selection process, they affirm the importance of equal opportunity and push institutions to produce a representative, or at least diverse, set of leaders and influential policymakers. 108 When principles of democracy inform the mission of

public institutions, they encourage decisionmakers to train a public-spirited citizenry, especially at law schools. 109 Democratic values may also define the educational process itself. To play an active role as a citizen or leader requires the capacity to deliberate, listen critically, and become informed. 110 The presumption that one develops these skills in educational settings highlights the importance of adhering to democratic ideals within such institutions. The different processes that educational institutions employ to navigate these goals, however, reveal that the goals are often mutually inconsistent. Individualism, for example, is in tension with a democratic commitment to equal opportunity; not all who have been disadvantaged by reason of their group status benefit equally when some group members are treated as individuals. 111 Moreover, when taken to extremes, individualism can be a divisive force, driving people to find [*141] comfort in racial stereotyping and animosity, which becomes the only respectable reason for their own failures. 112 If "right living and hard work do lead to success," then those who fail have no one to blame but themselves - an uncomfortable conclusion. 113 Stuck in dead-end jobs, denied access to selective institutions, or frustrated that they cannot pass on their own privileges to their children, poor and working-class whites sometimes find it easier to blame blacks, or some other scapegoat, for "stealing" the American Dream. 114 Blacks become personally responsible for their own, as well as everyone else's, failures. This form of one-way individualism, which accepts responsibility for success but not failure, is not only dangerously polarizing; it also ignores the experience of racial disadvantage. Many Americans have been disadvantaged precisely because of their group identity; yet this reality does not recede by simple commitments to treat everyone as an individual. 115 Because individualism values the individual over the [*142] group, and individual mobility over community stability, it can contribute to more general feelings of dislocation 116 and disable groups of people from participating in public life. 117 Moreover, systems of selection often end up perpetuating inherited privilege, even as they disavow any connection to ascribed identity or natural aristocracies. 118 A principled commitment to merit selection can perpetuate ascribed identities in covert ways that are often aligned with the identities and experiences of those in a position to define merit. 119 Access to higher education can become a "world in which inequalities of power are natural, and individuals compete for well-being as individuals at the same time they occupy distinct social locations replete with social roles and expectations." 120 Nor are commitments to democratic legitimacy or upward mobility necessarily satisfied by selecting just a few group members to succeed. Indeed, in many ways, the democratic role of higher education has atrophied; without significant infusions of public funds and other potential [*143] sources of accountability, it is in danger of becoming a rhetorical but unrealized ideal. 121 I borrow and adopt three sociological terms - contest, sponsored, and structural mobility - to help assess the often-confusing interaction among the values that

underlie admissions decisions. These three concepts describe the means through which individual upward mobility can be achieved: pure competition, discretionary choice, or structural intervention. A. Contest Mobility The term "contest mobility" is a very rough proxy for upward mobility achieved through competitive success on standardized tests. 122 Elite status is the goal and is achieved by the candidate's own efforts in an open contest. 123 Numerical valuations of students provide a scoreboard for this contest, which is either won or lost, with no middle ground. Victors assume that their success, and their resulting elite [*144] status, is a justly won prize, not an opportunity for further growth. 124 Since aptitude or ability is presumed to be fixed before the race, the best prepared, rather than the most diligent, win. 125 The ultimate goal of contest mobility is the distribution of opportunity based on individual competition and quantifiable measures of merit. Every contest needs a referee, and the role of U.S. News & World Report in a competition defined by contest mobility should not be underestimated. 126 Rankings by this magazine not only signal to the individual applicant where he or she "belongs," but also signal to the institution where it belongs. 127 Similar to the ways in which standardized tests rank and sort individuals, U.S. News & World Report ranks [*145] and sorts institutions based on quantitative, uniform measures. 128 The rankings also exercise significant influence over educational institutions. Because they can affect the prestige of a school, the rankings matter to alumni, trustees, and the politicians who set the budgets of public colleges. 129 Moreover, rankings can influence admissions policies, pressuring institutions to focus on changes that may be unrelated to educational objectives. 130 Although quantitative measures can provide useful feedback to the institution or to the public, they can easily be misused to hold the institution accountable to one-size-fits-all standards that discourage pursuit of an institution's unique educational mission. 131 Rankings also privilege competition over the pursuit of the collective good, not only for the institution, but also for higher education more generally. 132 By discouraging inquiry into the discretionary [*146] choices on which they are constructed, these rankings normalize and calcify reliance on a few quite arbitrary measures of excellence because no dean or university president wants to put her institution at risk of lowered rankings and decreased prestige. 133 The facial neutrality of college rankings hides not only their arbitrariness, but also their value choices and tendency to perpetuate existing privilege. For example, differences in environmental backgrounds based on socioeconomic status (SES), defined broadly to include more than income, provide some students with significant advantages that are not apparent by solely examining grades and test scores. 134 Indeed, the relationship between test scores and status markers such as parents' education, grandparents' socioeconomic status, racial identity, and geographic location is very strong. 135 The correlation between test [*147] scores

and SES indicators is even stronger than the correlation between test scores and future academic performance. 136 With the exception of race, however, the tests' correlation with socioeconomic factors, including class and geography, remains under the radar of public debate. 137 [*148] Although the introduction of standardized measures of aptitude was motivated primarily by the impulse to disseminate opportunity more broadly, it has had the unintended consequence of allowing one social class to enjoy hegemony. 138 A recent study by Anthony Carnevale and Stephen Rose of the Educational Testing Service (ETS) found that 74% of the students at the 146 most selective colleges and universities come from the upper 25% of the socioeconomic status indicators. Only 3% come from the bottom 25%, and roughly 10% come from the bottom half. 139 Indeed, although contest mobility was originally designed to throw open the campus gates "on the basis of brains rather than blood," 140 blood has nevertheless triumphed, as middle-and upper-middle-class parents, themselves college graduates, pass on their own status markers by helping their offspring manipulate the so-called "objective" measures of merit, including SAT and LSAT scores. 141 Test preparation is now a major industry: coaching is not limited to classes but includes personal tutors, live-in mentors, and private schools that put enormous resources into guidance counselors who help students "beat the system." 142 These special privileges cannot be reconciled with contest mobility's narrative of upward mobility through personal responsibility. Quantitative measures often reflect family resources and influence [*149] rather than a student's resourcefulness or intelligence. Some students tend to test better than others; thus, two students with identical test scores may have put in different amounts of effort to achieve those scores. 143 For these reasons, quantitative measures of academic aptitude primarily reflect the performance of groups of people rather than individuals. 144 The measures on which contest mobility relies, for example, often fail to predict an individual's long-term, post-graduation accomplishments. The contest promotes short-term winners who are not necessarily among those who enjoy the most financial success or career satisfaction, or who perform the most public service. In fact, a study of graduates of the University of Michigan Law School 145 found that merit, as quantified by college grades and LSAT scores, had either no correlation or a negative correlation with post-graduation contribution to the community. 146 Overall, individuals with lower LSAT scores and college grades tended to spend more time in public or unremunerated legal service. 147 Indeed, following graduation, the school's black and Latino students succeeded in ways that eluded many of their white counterparts whose entry-level credentials were higher. 148 [*150] The Michigan study is supported by the findings of other research demonstrating that contest mobility does little to produce a public-minded set of

winners. 149 Because contest mobility communicates to its winners that they belong to the elite because of their innate qualities, they apparently feel less of an obligation to serve the public. Ironically, Conant's dream of a selfless class of public-minded graduates who would remember their roots was better satisfied by the exclusive, self-satisfied aristocracy than by the inclusive, self-centered meritocracy. Whereas the hereditary elite felt the pangs of noblesse oblige, 150 the meritocratic elite apparently feel no such pressure. Contest mobility reinforces the culture of meritocratic entitlement among its primary beneficiaries, upper-middle-class whites, who feel they have played by the rules and therefore deserve to win. This commitment to the narrative of contest mobility has proved resistant to data refuting its validity and continues to remain extremely persuasive, particularly among affluent whites, whose children are the primary beneficiaries of the traditional admissions regime and its overreliance on narrow, "objective" indicia of success. Survey data suggest that well-educated, well-off whites are among the most antagonistic to affirmative action in higher education, even though they are more supportive of programs designed to increase the representation of people of color in legislatures, public sector jobs, and government contracting positions. 151 Explicit diversity criteria for admissions are controversial. They are seen as throwbacks to an earlier, now rebuked, age that relied on social criteria rather than mathematically derived ones. Critics argue that, because explicit diversity criteria categorize people rather than their output, they leave room for the subjective exercise of racial prejudice, thus subverting the fairness principle. 152 These critics presume that, because scores are "earned," and diversity is not, diversity [*151] criteria allow less "deserving" students of color to gain admission over more "qualified" whites, even though the number of whites adversely affected by affirmative action is miniscule. 153 For critics of affirmative action, diversity represents a dramatic departure from the background commitment to objective measures of merit. Diversity is therefore denigrated as both a process and a substantive goal. 154 Diversity criteria bend the rules of contest mobility. 155 B. Sponsored Mobility In order to admit more individuals from underrepresented demographic categories, colleges and universities have modified contest mobility by supplementing the contest with discretion. This hybrid alternative, which I call "sponsored mobility," 156 refers to the contemporary version of the elitist system that was in place when James Conant was President of Harvard. In a system of sponsored mobility, modern elites - including admissions officers, alumni, and others who have already enjoyed the spoils of higher education - hand-pick a few candidates to ascend the ladder of higher education. Whereas contest mobility relies solely on a fixed set of "hard" numbers, sometimes called "skinny merit," sponsored mobility relies on an expandable set [*152] of "soft" criteria, which might be called "robust merit," to supplement the hard numbers. 157

Sponsored mobility is an intermediate position between pure contest mobility and structural mobility. This intermediate position allows decisionmakers some room to maneuver; it also acknowledges the limitations of the contest in determining the most "qualified" candidates. The use of soft variables is defended with hard data showing that a purely test-based system suffers from the fallacy of false precision. Like the hereditary elite system it replaced, modern sponsored mobility retains a discretionary process. The admissions officers sort through a host of objective and subjective variables to inform their judgment. 158 Soft variables, in particular, afford admissions officers the discretion to discover and reward untapped, and perhaps immeasurable, human potential that is evidenced by personal characteristics, such as a disciplined work ethic or the motivation to persist in the face of overwhelming obstacles. This discretion is informed by interviews, letters of recommendation, extracurricular activities, and personal circumstances, including the applicant's race. Sponsored mobility is managed by professional admissions officers for the most part; however, alumni representatives and the headmasters of private secondary schools still play a role in "sponsoring" candidates to elite institutions. Students from elite private schools, for example, still enjoy disproportionate access to Harvard, Yale, and Princeton. 159 [*153] Sponsored mobility enables status elevation at the individual level, but when it comes to issues of diversity, institutions justify it in the name of the group. This justification may take several forms. An institution may believe that diversity in higher education is important because it allows students of all races to "see that people like themselves can succeed" and to "learn the value of interacting with people who are different." 160 Or it may believe that diversity is essential to preserve a "stable polity." 161 Or it may conclude that interracial interaction helps destabilize stereotypes and improve race relations more generally. Whatever the motivation, decisionmakers select a few deserving group members, whose presence then legitimates the institution's educational and democratic missions. The process values associated with sponsored mobility are elite selection and good-faith discretion. Using the soft variables to supplement the hard criteria for merit, adherents to sponsored mobility often challenge the notion that excellence is quantifiable; they believe that hard work, motivation, and diligence are relevant to future success. But they still rely primarily on "input" rather than "output" measures - that is, they look backward rather than forward. Few institutions conduct long-term research on the career trajectories of their graduates. Nor do these institutions maintain relationships with representatives of inner-city public high schools or rural schools in remote locations. They do not engage sufficiently, at least publicly, with the tough questions about the democratic mission of the institution, the need for democratic practices to fulfill that mission, or the need to be more self-reflective about whom they admit generally and what they expect of their graduates.

Sponsored mobility suffers from four serious flaws: First, it enables the unconscious biases of a relatively homogeneous group to thrive 162 [*154] by relying on the judgment of individuals who do not have to explain their choices to a third party. Admissions officers rarely enjoy longstanding relationships with the inner-city principals, high school guidance counselors, individual teachers, or community leaders who might know and recommend a student and who can offer information that may not be apparent from the student's file. Second, sponsored mobility does not adequately embrace the idea that individuals change in relation to their environments; thus, although it moderates notions of the intrinsic worth of individuals, sponsored mobility does not adjust sufficiently for the malleability of intelligence in response to effort or encouragement. Third, sponsored mobility perpetuates reliance on the same admissions processes that enabled the current decisionmakers to succeed. Not only do the decisionmakers sponsor students who look like or remind them of themselves, but they also sponsor students who succeeded under the same criteria they faced. This commitment to self-replication is backward-looking; it tends to encourage complacency rather than self-reflection and experimentation. Finally, because adherents of sponsored mobility do not publicly and continuously rethink the relationship between their selection criteria and their mission, their criteria tend to become ends in themselves. For these reasons, sponsored mobility does not necessarily abate the obsession with rankings. The hard numbers tend to dominate, especially where diversity considerations, which are often used to justify softer variables, are not presented as integral to the core idea of excellence. 163 Test scores and other quantitative measures are still used not only to rank and sort individual applicants, but also to rank and sort selective institutions, which then become committed to admitting mostly those students whose test scores protect the institution's own [*155] rankings. 164 Although sponsored mobility leavens the use of test scores through special considerations for students of color, athletes, children of alumni, or students with wealthy parents who may contribute financially to its well-being, 165 some institutions misuse test scores to protect their rankings in U.S. News & World Report. Indeed, some institutions, eager to maintain the highest possible median SAT scores, use winks and nods to manipulate affirmative action categories. Some selective institutions, for example, decline even to recruit from urban public schools, where SAT scores are not as high as in suburban schools. Or they fail to probe beyond the "checked boxes" to determine who really identifies with the underrepresented groups the institution seeks to enroll: they often overlook talented, American-born, African Americans and Latinos in favor of higher-scoring recent immigrants from Africa, the West Indies, and South America. 166 The higher test scores of well-educated voluntary immigrants [*156] apparently correlate with their lesser vulnerability to the "stereotype threat" that depresses the performance of American-born blacks and Latinos; 167 their higher test scores may also reflect their parents' professional or educational status in their countries of origin. 168

Voluntary immigrants contribute in multiple and valuable ways to the diversity of an institution and to the larger society. 169 Nevertheless, it would be troubling if it turned out that colleges were admitting recent immigrants in overwhelming numbers while rejecting or not recruiting indigenous blacks, Puerto Ricans living in the continental United States, and Mexican Americans, simply to maintain their rankings in U.S. News & World Report. 170 Such a trend would be especially [*157] disturbing if sponsored mobility allowed such institutions, in their quest to improve their rankings, to ignore evidence that the hard variables fail to predict long-term performance for many individuals, are useful primarily as social indicators of group advantage rather than individual performance in the classroom, need to be supplemented by a thicker version of diversity, and may undermine the "expressive" function of the institution. 171 In the end, sponsored mobility may be only marginally better than contest mobility at allocating access to higher education in a way that is consistent with democratic principles. Although sponsored mobility uses diversity to supplement the hard numbers, it still relies extensively on "the contest" to determine the winners; in this way, diversity becomes a stabilizing norm to legitimate the status quo. Contest mobility at least assumes that individual competition will create churn to upend a complacent view of the status quo. 172 In addition, sponsored mobility gives power to a few decisionmakers to allocate opportunity to "deserving" individuals. Contest mobility gives that power to the institutions that manufacture or referee the rules of the contest, whether a testing bureaucracy or a news magazine; the contest then allocates opportunity to those who "earn" it on their own, with individual competition serving as a tool of accountability. Sponsored mobility, because of its tendency to operate behind closed doors and in isolation from the people who know the candidate best, often lacks such accountability. 173 Because sponsored mobility is still beholden to [*158] the hard numbers, operates without much transparency, and tends to reward a limited range of individual attributes, it can also be perceived as a means to co-opt or pacify potential challengers to the governing regime. 174 Although it expands what is considered relevant to past performance, it does not necessarily anchor admissions decisions in a commitment to future public service. 175 Under sponsored mobility, admissions decisions are often supported by stories rather than data. Instead of truly diversifying contest mobility's view of excellence, sponsored mobility tends to make, and then justify, its few exceptions to the dominant contest while taking the same narrow view of merit. 176 Ironically, it is along the margins of the contest that sponsored admittees vindicate W.E.B. DuBois's faith in a "talented tenth." 177 To the extent black and Latino beneficiaries of sponsored mobility see their advancement as a "vote of confidence," or a "racial variant of noblesse [*159] oblige," they become the most likely to fulfill Conant's dream of an "educated talent [who] will later serve the taxpayer by serving the entire nation." 178

C. Structural Mobility In addition to contest mobility, which uses hard numbers to measure academic merit, and sponsored mobility, which employs expandable criteria to measure diversity, there is a third conception of the relationship between opportunity and admissions: "structural mobility." 179 A system of structural mobility seeks to identify qualified students in relation to the greater role of higher education in the political, economic, and social structure of community. 180 A commitment to structural mobility means that an institution's commitments to upward mobility, merit, democracy, and individualism are framed and tempered by an awareness of how structures, including the institution's own admissions criteria, tend to privilege some groups of people over others. Structural mobility would require universities to change those admissions policies to provide access to large numbers of people across class, race, and geographic lines, thereby changing the very structure of educational opportunity in this country. 181 Advocates of structural mobility understand that opening access to higher education benefits the society as a whole, not just the individual admittees. 182 Structural mobility differs from both contest and sponsored mobility, which are dedicated to individual advancement through a market-oriented contest or a "vote of confidence." Structural mobility places the issue of merit firmly on the table and attempts to define it in the context of democratic values. It takes a future-oriented view of the [*160] role of higher education in a multiracial democracy by linking ideas about merit directly to ideas about public service and opportunity broadly construed. Although structural mobility is committed to community advancement, it is not inconsistent with ideals of individualism. 183 Rather, structural mobility values the individual in relation to the community. Because it privileges those who have already served, or those who want to serve, their communities, structural mobility focuses society's educational resources on those who are most likely to fulfill the aims of democracy. For proponents of structural mobility, contest mobility's preoccupation with competitive individualism fails to fulfill Conant's dream of assembling a more publicly spirited elite; contest mobility promotes short-term winners of the wrong game. Sponsored mobility does a better job of elevating individuals who remain connected to their communities or to the taxpayers who helped subsidize their success, 184 but only through a small segment of all admittees. Structural mobility extends the emphasis on community affiliation and linked fate to all admittees, not just those who bring racial diversity to college campuses. 185 It links the institution and its students to their communities, thereby advancing the goals of public education at the local, state, and national levels. 186 An institution committed to structural mobility [*161] might measure its success, for example, not only by the students it admits but also by the changes it precipitates in educational opportunity at the K-12 level. Finally, structural mobility is sustained by a broadly democratic

and participatory process of self-reflective and racially literate experimentalism. 187 In a world of structural mobility, individuals are given access to educational opportunities not because they win a "contest" or because they have been hand-picked by elites, but because the relevant stakeholders 188 come together to make a set of public-minded choices. 189 Because structural mobility moves to restore the "public" in higher education, some critics argue that it is a radical departure from America's tradition of individual upward mobility, merit, and personal responsibility. 190 However, elements of structural mobility already play [*162] a part in some of our nation's educational programs. For example, the 1944 GI Bill 191 provided funding to World War II veterans for a college education. 192 More recently, the Texas Ten Percent Plan (TTP) 193 is a significant (albeit still incomplete) step toward the goals of structural mobility. By admitting students in the top ten percent of every graduating high school class in the state, the TTP reconnects the state's flagship universities to local communities, and brings diversity into the classroom across lines of race, class, and geography. The TTP originated from a confluence of political forces after the Hopwood decision. 194 Hopwood, which ended affirmative action in the Fifth Circuit, mobilized coalitions of black and Latino activists; [*163] black, Latino, and white legislators; and university administrators and professors. These coalitions forged new alliances with conservative rural legislators as they sought to develop new admissions criteria that would maintain access to the flagship state institutions for people of color as well as poor whites. 195 They fundamentally altered ideas about merit and access, pushing the SAT and other standardized tests to the periphery and instead relying primarily on high school grades to determine who is "qualified" to attend a taxpayer-subsidized college. 196 According to one of the Plan's original proponents: "We based our argument on essentially two factors. One is that the best predictor of success is success - if kids have been successful, they'll continue to be successful. The second is that we wanted to create a different incentive structure in the high schools. We wanted to reward hard work." 197 This coalition also embraced a process that made sense in Texas, where ten percent of the state's high schools - particularly those in the affluent, predominantly white areas of suburban or metropolitan Houston, Austin, and Dallas - had been providing fifty percent to seventy-five percent of the freshman class at UT Austin under the "classic" admissions model combining contest and sponsored mobility. 198 The TTP not only redefined merit in the context of college admissions, [*164] but it also built multiracial support for greater diversity and fairness in the admissions process in ways that affected large numbers of white people too. 199 As UT Professors Forbath and Torres noted, the Plan "addresses the broader inequities that lead U.T. Austin to see few of the brightest kids of any color from the state's poorer counties." 200 While proponents developed the Plan to be race-neutral, it is not "color-blind." 201

Appealing to a combination of local pride and populism, 202 proponents of the TTP argued that the state's flagship universities had an obligation to serve all areas and all people of the state. In addition, they wanted to reconnect higher education to the K-12 system. By tying university admissions to local high schools throughout the state, they sought to create the political will to provoke "real remedies for the core problem - the appalling inequities in the State's system, with its gross under-funding of K-12 education at many minority schools." 203 By making the admissions process more transparent, the TTP reconnected higher education to its public mission. Although much of the debate about the TTP has taken place in the context of race, recent scholarship suggests that class is another important variable that points to the severe underrepresentation of identifiable [*165] communities. 204 Geography, in turn, is often a marker for class. Under "classic" admissions models that combine contest and sponsored mobility, suburban high schools are much more likely than either urban or rural schools to feed their graduates to flagship state colleges. 205 This trend prevailed not only in pre-Hopwood Texas, but also in Michigan. 206 Geography may also conceal privilege within racial groups. Classic admissions models often fail to reach the most disadvantaged people of color because the racial diversity they produce often ignores the interplay between race, class, and geography. For example, some elite colleges use sponsored mobility to admit foreign-born students of color whose parents are professionally trained or highly educated, and who increasingly displace American-born blacks and Latinos under the rubric of diversity. 207 Geography also marks race, not just class. In pre-Hopwood Texas, for example, a few geographic areas, often segregated by race and class, effectively dominated access to flagship campuses. 208 Efforts to draw majority-minority election districts also reflected racial segregation [*166] within many Texas communities. 209 Thus, the TTP used structural mobility to take account of the interdependence of race, class, and geography, in ways that tracked the integrative principle behind the drawing of majority-minority election districts. 210 The levels of racial diversity at UT Austin have approached, and in the case of Latinos, exceeded, those realized through sponsored mobility. 211 The TTP has led to less racial diversity at Texas A&M than at UT Austin, where administrators have been more involved in the development of the Plan, have engaged in extensive outreach to high schools, have sought scholarship aid for students, and have implemented mentoring programs at the university. 212 Contrary to the assumption that TTP students would not perform on par with their peers, TTP students have actually earned higher freshman-year grades than students with higher SAT scores who were admitted under a more discretionary set of criteria. 213 As demonstrated by their performance, TTP students did not need remediation; they needed information. 214 [*167] The TTP has also led to greater outreach at the UT Austin campus, where

the same local activists who worked to develop the plan have helped the university keep abreast of changing local circumstances. Indeed, the controversy generated by the TTP has provoked the university to engage in the self-reflective practice of refining recruitment and outreach, as well as collecting massive amounts of data. Both of these consequences have made admissions processes more transparent to the public. 215 Despite its modest success at one flagship school, an automatic admissions system based on high school grades may appear both arbitrary and backward-looking. It seems arbitrary because it uses a single criterion without investigating how that criterion applies to individual students or is influenced by local norms, funding, and teacher qualifications. 216 It arguably uses numbers as a predictor of outcomes rather than as a process value to initiate a continuous, self-reflective examination of how closely a university's admissions criteria match its institutional goals. To the extent this observation is true, the Plan is a contest with new rules or a system for sponsoring groups rather than individuals. It is backward-looking because it chooses students based on what they did in the past: they performed well in high school. 217 Those who are leery of the Plan also express concern about the past as it relates to the future; they worry that students from underfunded high schools will fail to matriculate at the college level. 218 [*168] And yet there are reasons to suspect that the TTP also looks to the future. Precisely because students are admitted based on their performance in local high schools throughout the state, they may have deep connections to their communities that will inspire them to bring their skills home while embracing the public service mission of the university. 219 Many of these students represent not only the first people in their families to attend college, but also the first in their communities in recent memory to attend one of the state's flagship colleges. Perhaps this cohort will realize Conant's dream of a public-spirited meritocracy, at least to a greater extent than has the contest mobility regime that he helped put into motion. 220 This idea - that access to the state's flagship colleges would open up access to leadership positions throughout the state - was certainly one of the justifications for the adoption of the TTP. 221 Although it was enacted in response to a court decision, the TTP was animated by the belief that distributing access to educational opportunity broadly is consistent with the educational mission of higher education, necessary to economic viability in the global economy, important for training a representative group of citizens who will contribute to the public good, central to reconnecting the university to the K-12 educational system, and indicative of greater legitimacy within higher education. Whatever the Plan's limitations - and there are many 222 - most [*169] are also true of sponsored mobility programs. 223 The TTP is not a panacea: it does not apply at all to the state's public law schools, and UT's continued commitment to the selectivity associated with its elite status may eclipse the Plan's commitment to structural mobility. Nevertheless, the Plan illustrates some of the elements of

structural mobility. It moves away from the notion that it is necessary to create uniform and quantitative standards enforced through a national bureaucracy in order to identify those who can perform. 224 The Plan pushes university administrators to define success within its local context, challenging the conventional wisdom that elitism enforced by uniform but narrow rules equals excellence. 225 It demonstrates the role of relationships, both in overcoming the prior skew in recruiting talented [*170] individuals 226 and in assuming responsibility for the development of an educational system that goes from K through college, not just K through 12. 227 The Plan acknowledges that admissions are political acts, and then uses the normative framework of the institution in relation to broader societal goals to achieve an educationally more equitable and politically more palatable result under conditions of scarce resources. The TTP illustrates the need for public institutions to do more policy research in order to develop and assess programs that help subsidize their public mission. 228 And the Plan owes its success to a grassroots mobilization involving a broad multiracial coalition rather than a "small and carefully selected natural aristocracy." 229 Both the GI Bill and the Texas Ten Percent Plan share, to varying degrees, certain critical features that I associate with structural mobility. First, each program is perceived as either a return to individuals for their service to the community or a preparation for such service; 230 second, each program seeks to build broad cross-class and cross-racial coalitions by enlisting the support of grassroots voluntary organizations or the participation of indigenous actors in the construction of [*171] the program; and finally, each program is able to generate public revenues to support itself, in part because it distributes opportunity inclusively by race, class, and geography. 231 Although very different, each is a tool of structural mobility that, like the land grant colleges of the nineteenth century, exemplifies democratic commitments to opportunity. 232 All of the salient features of structural mobility - a commitment to public service, the participation of grassroots voluntary organizations or indigenous actors in the construction of the program, and the escalator effect that generates broad public support - connect to democratic values. [*172] III. Enter the Supreme Court: The Promise and the Caution of Using Race as a Lens Selective public institutions, such as the University of Michigan and the University of Michigan Law School, are in the position to choose among a number of qualified candidates who can do the work and be expected to graduate. Because their admissions decisions have broad social purposes and important individual consequences, these institutions must be able to articulate and defend their admissions criteria and processes to their respective constituencies. Four elements of the Supreme Court's decisions in Grutter and Gratz seem particularly relevant to the challenge facing institutions of higher education like the University of Michigan that are committed to maintaining their elite status while producing

racially literate graduates who contribute to both the campus community and the larger society. These elements are: the value of race-conscious diversity as it is connected to the university's educational mission; a robust view of diversity that includes class and geography, not just race; the role of democratic values; and the relationship between data, demographics, and reflective practice to inform the way institutions operationalize the concepts of diversity and democracy. These concepts, and the need to reconcile them through an experimental, democratic, and reflective practice, emerge in conjunction with some of the fault lines in the Court's analysis. The majority opinion in Gratz, which overturned the University of Michigan's undergraduate admissions system, tells institutions what they cannot do. Justice O'Connor's opinion in Grutter, by contrast, provides broad parameters for what institutions can do, and when read in conjunction with their public mission, how they ought to do it. Particularly revealing is the interplay between Justice O'Connor's opinion for the Court in Grutter, upholding the University of Michigan Law School's use of race to promote sponsored mobility, and Justice Thomas's dissent, criticizing sponsored mobility while shifting between a rhetorical preference for contest mobility and an analysis that is more compatible with structural mobility. The incongruity between Justice Thomas's analysis and conclusions is especially important in light of the social and economic data provided by Justice Ginsberg's dissenting opinion in Gratz. Ironically, the juxtaposition of Justice O'Connor's majority opinion in Grutter, Justice Thomas's dissenting opinion in Grutter, and Justice Ginsburg's dissenting opinion in Gratz reveals a new understanding of diversity that uses race to identify barriers to upward mobility, including geography and class, and connects a broader view of upward mobility to a democratic process. Before the Supreme Court, the schools defended their use of a combination of contest and sponsored mobility as necessary to maintain their "identities" as elite institutions capable of choosing the most [*173] "qualified" students. They broadened the notion of contest qualification to include, at the margins, the ability to contribute to a diverse educational experience. The schools, and many of their amici, disparaged structural mobility - at least as generically illustrated by percentage plans in California, Florida, and Texas. 233 Prodded by Lee Bollinger, the former President of the University of Michigan, they demonstrated public leadership in a surprisingly effective way, by illustrating the powerful role that universities can play in helping to frame public policy. They cast the issue of diversity as an educationally important variable, which functioned along the margins as a democratically viable exception to contest mobility. The nearly uniform support of this position from university presidents, former Joint Chiefs of Staff, and Fortune 500 corporations forced the Court in Grutter and Gratz to confront the question: what criteria should the Court use in supervising selective colleges and universities as they allocate opportunity through the political act of making admissions decisions?

Writing for the Supreme Court in Grutter, Justice O'Connor deferred to the University of Michigan Law School's use of sponsored mobility to answer this question. She introduced a prospective view of diversity that gave law school decisionmakers a wide berth 234 to consider [*174] race holistically and as one of many factors in selecting candidates for admission. 235 Her opinion expands what the Court considers a compelling governmental interest to include a prospective, not just retrospective, interest in the achievement of a racially diverse student body. 236 Her willingness to look toward the future of higher education invites institutions of higher education to engage in a larger conversation about the role colleges and universities play in fostering democratic values on campus and beyond. 237 Justice O'Connor acknowledged the institutional interest in a diverse classroom, as well as the societal interest in a diverse set of future business, military, government, and educational leaders. 238 By citing [*175] the amicus briefs of the military and others, Justice O'Connor's opinion for the Court affirmed that the conversation about racial diversity extends beyond the classroom to include the fundamental role of public education in a democracy. 239 Her opinion linked the educational mission of public institutions not only to the autonomy that the First Amendment gives universities to fashion their educational goals, 240 but also to the broad democratic goal of providing upward mobility to a diverse cadre of future leaders. 241 Upward mobility does not just benefit the individuals chosen to walk the path. To maintain public confidence in the educational institutions that provide this training, and in the legitimacy of those in charge more generally, the path to leadership must "be visibly open." 242 Justice O'Connor recognized that the educational value of promoting knowledge is crucial to the functioning of a democratic society and to the democratic value of providing opportunity in a fair and equitable fashion. 243 Elite public institutions such as the University of Michigan are educational gatekeepers that perform democratic functions: they grant upward mobility to their graduates and identify future leaders for business, government, and the military. Consequently, diversity has three important elements, which together justify the Court's deference to the law school's deployment of sponsored mobility [*176] to admit a critical mass of underrepresented students of color: diversity is pedagogical and dialogic; 244 it helps challenge stereotypes; 245 and it helps legitimate the democratic mission of higher education. 246 Justice Powell's opinion in Bakke really endorsed only the first of these three benefits as a compelling interest, 247 and his opinion generally has been read that way. Justice O'Connor's opinion in Grutter, by contrast, included encomiums to them all, which perhaps explains why she went out of her way to point out that the Court was not treating Justice Powell's opinion in Bakke as controlling precedent. 248 For Justice O'Connor, public confidence is associated with democratic values of fairness, upward mobility, and representative leadership, and diversity - within the classroom and among those who graduate - is one of the means to achieve those democratic values. But not all efforts to achieve democratic legitimacy through diversity are equal.

Sponsored mobility is a legitimate means to achieve the benefits of racial diversity, but only if the decisionmakers do not treat race as a fixed, bounded category. 249 In her concurring opinion in [*177] Gratz, the companion case to Grutter involving the Michigan undergraduate program, Justice O'Connor rejected the university's practice of automatically awarding twenty points to members of underrepresented racial groups. 250 Since Grutter was decided by a 5-4 majority, the obvious difference between it and Gratz was Justice O'Connor's attitude 251 toward the use of numbers in racial categorization: Educational decisionmakers may use such numbers to provide information and feedback on an avowedly race-conscious process. They may not use such numbers automatically to predetermine fixed racial outcomes. 252 However, when hard variables that consistently correlate [*178] with race are used to rank and sort individuals, numbers are not automatically suspect, although they may not always be the most reliable source of the information a law school admissions officer needs. 253 In Grutter, Justice O'Connor accepted the subjective, discretionary process used by law school officials who appeared to have considered the race of candidates holistically on a case-by-case basis. In Gratz, by contrast, she criticized the university's decision to value race "automatically" through an admissions grid. 254 Hand-picking as opposed to machine-sorting is preferable in her account. Educational institutions achieve the benefits of sponsored mobility when decisionmakers do not apply overt racial categories to achieve predetermined outcomes and do not limit those who benefit from considerations of diversity to [*179] members of historically underrepresented groups. Diversity is broadly defined and can include, inter alia, class, race, and geography as potentially interdependent, rather than isolated, variables. 255 Recognizing that educational institutions have multiple goals, Justice O'Connor deferred to institutional actors to weigh and balance those goals. 256 Justice O'Connor viewed the resulting admissions decisions as permissible, provided that the decisionmakers demonstrated good faith, including their willingness to consider race-neutral alternatives (without necessarily adopting those alternatives, at least in the short run). Justice O'Connor's skepticism about numbers is asymmetrical. She presumes numbers traditionally associated with contest mobility to be objective, even as they implicitly categorize people in ways associated with social and racial identities; at the same time, she views numbers explicitly associated with racial categories in a system of sponsored mobility as constitutional hot potatoes that may be considered only if the decisionmakers demonstrate the good-faith exercise of discretion. 257 For Justice O'Connor, good faith has three components: that the judgment be exercised in relationship to the institution's educational or democratic mission, that the judgment not treat race as a fixed category, and that the judgment to consider race be continuously interrogated in light of race-neutral alternatives. 258 [*180] Justice O'Connor's deference to the law school admissions officers to choose whom to invite onto the path of opportunity was the source of extended

criticism by the dissenters, who lamented the way she used it to short-circuit strict scrutiny analysis. 259 One interpretation of this deference, however, is that it revives the distinction between benign and odious uses of race in the application of strict scrutiny - a distinction more explicitly drawn in Justice Ginsburg's dissenting opinion in Gratz. 260 Under this interpretation, the use of race is benign when educational decisionmakers exercise their judgment to serve the larger integrative and democratic values of society. 261 The educational judgment of university officials merits deference because their holistic assessment of candidates assures all applicants that their potential contributions will be thoughtfully considered, and avoids ignoble social purposes, such as arbitrary racial balancing, and the consequences of an ill-designed social program that perpetuates stereotypes. Additionally, educators who continuously engage in a "reflective conversation with the situation" 262 to seek race-neutral alternatives where feasible satisfy the narrow tailoring requirement of strict scrutiny. 263 Explicit [*181] considerations of race are broadly legitimating when they apply on an individual basis, encompass an expansive group of beneficiaries (including whites), undergo reevaluation from time to time, and galvanize more systemic interventions to make race-neutral alternatives available. 264 The above analysis is certainly one way to understand Justice O'Connor's "expectation" that the need to use race as a constitutionally legitimate factor in achieving diverse university classrooms will expire in twenty-five years. 265 Her opinion is a push to get educational leaders to assume responsibility for creatively fashioning admissions practices that fit a changing reality. It is also a potential catalyst for public universities to assume more responsibility in changing that reality. By continuously reflecting on the situation, gathering data, sharing information, and reconsidering alternatives, educators can take account of any evolution in the system and recalibrate their methods of selection to assure continued public confidence. Justice O'Connor's deference to the judgment of educational decisionmakers in Grutter provoked Justice Thomas to write a stinging dissent. He shared the concerns of Justice Kennedy and Chief Justice Rehnquist that Justice O'Connor's majority opinion evaded the mandate of strict scrutiny; but Justice Thomas had a deeper stake in the issue and perhaps a more personal axe to grind. 266 Diversity, according [*182] to Justice Thomas, is merely a "faddish slogan of the cognoscenti" 267 that depends on deference to the judgment of "know-it-all elites." 268 In Justice Thomas's view, sponsoring certain individuals because of their race is the equivalent of conducting "social experiments with other people's children" to serve an "aesthetic" rather than democratic arrangement. 269 Whereas Justice O'Connor embraced elite sponsorship as a means of assuring democratic legitimacy, 270 Justice Thomas criticized the perceived virtues of both hand-picking by admissions officers and machine-sorting by numbers. While Justice Thomas endorsed a modified form of contest mobility in which no individual explicitly receives a hand up or a hand out, his analysis implicitly moved in the direction of structural mobility. 271

[*183] Justice Thomas refused to accept the contention that diversity for the sake of diversity can ever be benign. He quarreled with Justice O'Connor's assertion that a robust commitment to racial diversity can help break down stereotypes, promote learning, and contribute to a more inclusive view of democracy. 272 While Justice O'Connor wrote [*184] glowingly about diversity, Justice Thomas was skeptical, even hostile, to the concept. Diversity, for Justice Thomas, is a facade for a demeaning form of paternalism. 273 Justice Thomas opposed the notion that sponsored mobility through a self-reflective practice among elites is the preferred process by which to pursue democratic legitimacy through racial diversity. Instead, he concluded that only a radically individualist posture would save blacks from manipulation by whites whose self-interests do not "converge" with those of their intended beneficiaries. 274 He also distrusted the merit-based claims advanced to justify a commitment to elitism, arguing that visible diversity simply legitimates that elitism and its "aesthetics." 275 Justice Thomas took his critique in the direction of a leave-us-alone black individualism, in part because he ignored the fact that content neutrality is impossible when contest mobility is constructed on top of grossly unequal social positions that correlate with race and class. However, Justice Thomas's anti-elitist stance and implicit skepticism of testable merit are equally compatible with a more robust idea of functional merit and democratic accountability. 276 [*185] Exclusive reliance on the good faith of elites to distribute opportunity seems inconsistent with the participatory values of democratic process. At a very basic level, few people can be trusted to exercise discretion in an unaccountable and nontransparent way. 277 Indeed, research on cognitive bias suggests that people favor those who seem familiar over those with whom they do not identify; 278 such bias is especially problematic when decisions are subjective, invisible, and unaccountable to a third party. 279 I take seriously Justice Thomas's suspicion of "know-it-all elites" who attempt to make individual judg-ments without transparency or democratic accountability. 280 And yet [*186] such a system seems to be exactly what Justice O'Connor had in mind. Justice Thomas's dissent critiqued sponsored mobility on another ground. He pointed out the inconsistencies between the institution's commitment to testable merit and its creation of an exception for diversity. 281 He criticized this exceptionalization of diversity using the language of "stigma." 282 I agree that exceptionalizing diversity and disconnecting it from genuine merit is problematic, but for reasons that are quite different from the ones that Justice Thomas articulated. First, it is not the effort to produce racial diversity per se that is stigmatizing; it is diversity's association with race and its availability as a framing device in our society because of this association. Erroneous assumptions about black intellectual inferiority, laziness, and general undeservedness have a long history. 283 This history helps explain why legacy preferences, which account for a larger

percentage of admissions at selective colleges than do racial or ethnic factors, 284 do not [*187] generate the same "stigma." 285 Inheriting the opportunity to attend college apparently is not stigmatizing, even if it is the basis for lowering standards as measured by hard admissions criteria. 286 Second, diversity, through its close association in the public mind with the language of preferences, is perceived as an exception to, rather than a foundational element of, merit. 287 Because this perception isolates diversity from arguments about educational excellence, it makes racial diversity particularly vulnerable to critique. 288 As Justice Scalia's dissent in Grutter demonstrates, racial diversity is trivialized rather than acknowledged as a legitimate part of the institution's educational and public missions. 289 Such trivialization, sometimes bordering on ridicule, may implicitly endorse stereotypes of black inferiority. 290 Third, because diversity is treated as an "add-on" to the prevailing system of contest mobility, race is not only isolated but also hyper-visible and thus an easy target for the frustrations of whites who have [*188] no other explanation for their individual failures. 291 To the extent that the Grutter and Gratz opinions encourage institutions to cloak their decisions in "holistic" assessments, race will remain the only highly visible variable that institutions consider. 292 Once race becomes hyper-visible, the diversity rationale may generate backlash despite the Court's approval of it. 293 When people feel frozen out of a valued public resource, they often use race to explain the problem. This phenomenon is especially prevalent during a "revolution of rising expectations," such as the one put in motion by the post-World War II shift in the opportunity structure of higher education. 294 The genesis of the current controversy can be traced in part to the absence of transparency at the dawn of the contest mobility era. As a result of a series of relatively private decisions that fundamentally altered our perception of educational opportunity, universities became the "sorting hats" 295 that decided who could become members of the governing elite. The current hullabaloo surrounding affirmative action is in some ways a proxy for a public debate that never took place when the contest mobility admissions criteria were first adopted in the 1950s. Nicholas Lemann explains the consequences of transforming universities into a "national personnel department" without public ratification: It isn't a happenstance that the question of who gets to attend [universities] has become the subject of election campaigns and Supreme Court [*189] cases. Because of the peculiar circumstances of the founding of the American meritocracy - the lack of public debate or assent (therefore the lack of general understanding about its purpose) ... [and] the steady imperceptible segue in orientation from leadership training to reward distribution - the system seems to be one whose judgments are mysterious, severe, and final. 296

This shift, through which universities purported to provide educational opportunity for all but instead functioned more as gatekeepers for a small elite, affected poor and working-class whites, who are often the plaintiffs in lawsuits challenging affirmative action. 297 The inability to control this mysterious meritocracy also helps explain the resentment among upper-middle-class and middle-class Americans, 298 who feel great anxiety, at least compared to the wealthiest Americans with their bloodlines and old money, about their ability to pass on their social rank to their children. 299 Status insecurity looks for easy targets. As long as the process of decisionmaking by elites remains opaque, race will remain the lens through which disgruntled white applicants understand it. Race is the neon light, the one variable that remains highly visible. Race, in other words, is an easy mark for the frustration of those who are excluded by admissions choices - choices that have little to do with race and much to do with discretionary, even arbitrary, [*190] decisionmaking. The historical stigma associated with people of color lends further momentum to this backlash, particularly since other discretionary choices to convert social status into merit were never subject to open debate 300 and are still relatively camouflaged. 301 Working-class and upper-middle-class resentment, which is misdirected at affirmative action, nevertheless resonates because of a linked chain of assumptions: blacks admitted under affirmative action are taking more than their fair share of seats; those blacks are not "qualified" to be there in the first place because they have lower test scores, which are the premier measure of merit (thereby reinforcing assumptions about black inferiority); and the affluent whites, who are taking the most seats, do deserve to be there - even though it is they who, because of the close association between test scores and parental education and wealth, are in fact the primary beneficiaries of the admissions process. Given the reality that race still codes opportunity, sponsored mobility mediated through a commitment to ideas of holistic diversity is certainly more benign than contest mobility mediated through a commitment to false notions of scientific precision. 302 The problem is that [*191] sponsored mobility attempts to lift race outside of categorical judgments, while leaving "merit" inside such judgments, despite the fact that efforts to quantify merit also suffer from false precision and are both too broad and too narrow at the same time. It is important, therefore, to point out how those opposed to affirmative action, such as Justice Thomas, are trapped by this inconsistency. Indeed, affirmative action opponents tend to embrace two internally contradictory rubrics: "radical individualism" and "quantifiable merit," both of which are infused with, and in denial about, the collective experience of race. This is the direction in which I take Justice Thomas's critique, partly because of the demographic data that Justice Ginsburg offered in her dissenting opinion in Gratz, which Justice Thomas adopted in his own way in Grutter but ultimately ignored. 303 Justice Ginsburg showed that issues of race have a structural component that

cannot be captured by individual mobility. Examples include the performance gap, the stereotyping of blacks in the name of affirmative action, and the developing admissions gap between men and women of color. 304 She marshaled statistics to demonstrate the ways in which groups of people - not just individuals within those groups - have been disad-vantaged. 305 Moreover, when individuals are selected for qualities of [*192] "merit" primarily possessed by those who are already privileged, the chances of widely dispersed upward mobility are seriously eroded. This is true because of the tendency toward corruption in a nontransparent system, 306 and because the proxies for merit that are familiar and accepted tend to credentialize the existing social oligarchies. Justice Ginsburg's dissent in Gratz reminds us of the value of a sociological reality check. Statistics provide important information at the front and back ends of a decisionmaking process. Hard numbers, not just anecdotes, help decisionmakers understand the collective position of groups of people. Research like the Michigan Law School study, which gathered data about group performance over time, is an essential part of any effort to predict the future performance of individuals. Indeed, Justice Ginsburg's analysis suggests that decisionmakers in a system of sponsored mobility should use numbers as a source of accountability to individuals, underrepresented groups, and the public mission of the institution. Her dissent suggests that structural mobility can be sponsored, thus illuminating the broader implications of the Court's disapproval of the mechanical quantification of the value of race. Justice Ginsburg's opinion implies that there is a difference between the "good" use of numbers - using numbers as a diagnostic tool to help design an admissions process and as a feedback mechanism to keep the process accountable - and the "bad" use of numbers - using numbers as the sole measure of the ultimate goal or outcome. 307 In other words, numbers are informational in the aggregate: [*193] they can help institutions design a process that is intended to meet certain general objectives, and they can also assist institutions in determining whether the process is working. Numbers are less useful at the individual level: while they may moderately correlate with short-term future performance, they are simply not as useful in predicting the long-term future performance of individuals as many university administrators and members of the public seem to believe. 308 Although Gratz identifies how numbers cannot capture an individual's worth (or at least are over-and underinclusive as used by the University of Michigan's undergraduate program), numbers can provide relevant information in the aggregate about relationships of groups of individuals to economic, social, and political power. And while numbers do not tell us all that we need to know about an individual (if we respect the notion that individuals are unique and cannot be compared along a single metric), numbers can provide context to help situate individuals within larger domains. Numbers are informative: they are tools for assisting in making judgments but should not be confused with proxies for those judgments. If numbers should not be outcome-determinative about race, then neither should they be outcome-determinative as proxies for individual "merit" generally. 309

There is a direct relationship between efforts to quantify race and efforts to quantify merit. Both are driven in part by efficiency concerns. In addition, the quantification of merit hides the discretion of those who develop the quantification tools - standardized tests - which are normed to reward upper-class and upper-middle-class whites. Thus, the decision by institutions like the University of Michigan's undergraduate program to use "hard edges" to capture race is a recognized compensatory response to the "hard edges" that define [*194] quantifiable notions of merit. 310 Both are over-and underinclusive categories. But it is the underinclusiveness of the hard variables that contributes to the hyper-visibility of race. 311 To the extent "merit" is considered largely quantifiable - as opposed to a set of qualitative judgments that are essentially educated guesses about future potential made in the context of an institution's educational and public missions - individualized assessments that include race as one variable are doomed to be somewhat mechanistic, albeit less transparently so, in order to compensate for the preferences embedded in the hard variables. 312 This use of race is also vulnerable to continued attack by those who feel excluded by the admissions choices being made (mostly working-class and poor whites, but status-seeking upper-middle-class whites as well), unless those choices reflect not only concerns about democratic legitimacy but also a democratic process. 313 Yet the likely immediate consequence of Grutter is that trusted admissions officials are now freer to make their decisions without a great [*195] deal of transparency. 314 They need not give reasons for their choices, as long as they avoid the mechanistic use of race. 315 If, for example, the institution has a backward-looking purpose, then it may rely on contest mobility and continue to use admission as a reward or prize. Many universities, however, do not like to speak of their admissions slots as rewards; 316 law schools in particular have a mission to train public citizens who serve their clients and society as a whole. 317 Such institutions might therefore embrace sponsored mobility, since they may use subjective criteria to supplement the hard variables in making predictions about who among their applicants are likely to serve the public. To assess the qualitative merit of their applicants in a manner consistent with Grutter and Gratz, public institutions such as Pennsylvania State University, which has 87,000 applicants a year, may feel pressured to hire extra admissions officers to read files. 318 As a short-term measure, this solution is useful, and it apparently has been adopted by the University of Michigan in order to comply with the Court's rulings. 319 But farming out admissions choices to temporary [*196] workers could easily become a subterfuge for elites to retain the power to choose applicants like themselves, since it is they who determine the relevant criteria and evaluate the results. 320 There is a caution, in other words, voiced by the very different dissents of Justices Ginsburg and Thomas. The caution is that elite self-replication is the problem, not affirmative action. In this sense, sponsored mobility will be co-opted by elites in

the same way contest mobility was. Diversity will not be an aesthetic fad; instead, it will become a fig leaf to hide a commitment to the status quo. If admissions decisions are to be made in a more democratic fashion - that is, with transparency and accountability to the institution's public mission and to the taxpayers who subsidize it - then much more than the physical aesthetics of these choices needs to be obvious. [*197] To the extent institutions of higher education make judgments that tend to prefer those who are already privileged and then use diversity in the sense of sponsored mobility to cushion that preference, race remains a visible target that may be misused to undermine public confidence in the educational judgment of these institutions. Relying on institutional good faith to cabin elite discretion has both strengths and weaknesses, even in institutions that can afford the holistic assessment of individual candidates. The strengths are tied to Justice O'Connor's assumption that institutions will, in good faith, continuously review their admissions processes to take account of context and changing demographics, in order to pursue the laudable goal of training a diverse leadership class. The weakness is the flip side of that presumption: a process that relies on nontransparent choices made by elite institutions may easily fail to achieve the democratic value of diversity that Justice O'Connor also hails. Like Conant's version of contest mobility, which used "merit" to replace "character" and ended up reproducing privilege, sponsored mobility may also turn out to benefit only those who are already advantaged. It is not the goal of diversity that is the problem. Nor does adverting to democratic legitimacy justify that goal. The problem is the failure to adopt safeguards that ensure that the goal remains connected to its justificatory principle. The Grutter opinion, in conjunction with Chief Justice Rehnquist's opinion for the Court in Gratz, holds two other potential limitations as well as a promise. Although the Court expects institutions to sponsor individuals of color rather than racially categorized groups, 321 and to revisit their use of race periodically in light of the availability of race-neutral alternatives, 322 the Court still, paradoxically, requires institutions to consider race differently from the way they consider merit. Simultaneously, the approval of limited forms of race-consciousness may invite complacency rather than vigilance. However, the Court's quixotic hope that consideration of race will be unnecessary in twenty-five years may instead prompt universities to engage the public in a larger conversation about what type of society we want to live in and what higher education institutions must do to bring us closer to that [*198] goal. 323 Ultimately, the promise is that the introduction of a soft deadline will trigger bold new experiments in which universities demonstrate renewed involvement in K-12 education, build relationships with local communities to garner more support, and consider multiple ways to realize their twin goals of educational excellence and democratic opportunity. IV. Pursuing the Promise and Heeding the Warning: Racial Literacy and the Role

of Higher Education in Our Democracy Although the Grutter and Gratz decisions vindicate the principle of diversity, they do not explain how institutions of higher education should use that principle to help make admissions decisions. 324 This lack of guidance appears to be intentional: as long as institutions do not weight race so heavily that it overdetermines admissions outcomes, their good faith is essentially presumed. It may be that Justice O'Connor and the Grutter majority presume good faith because they want the meaning of diversity to emerge from a process of experimentation, feedback, and reflection. It may be that the Court is not prepared to articulate a national definition of diversity and instead prefers for educational institutions to work out the meaning of diversity locally over time. 325 This explanation is consistent with the way Justice O'Connor interpreted narrow tailoring in the context of sponsored [*199] mobility, as well as her preference for voluntary self-correction in other contexts. 326 To the extent that an institution is committed to diversifying its student body, the Court's lack of specificity gives the institution leeway to experiment with ways to link the broad concept of diversity to the specific educational mission of the institution and the public values it aims to serve. For institutions committed to racial diversity, the three forms of mobility are all presumably constitutional as long as they do not use race categorically, overtly, and decisively to fix outcomes. An institution may consider race implicitly in conjunction with class and geography, as is done in percentage plans; 327 it may consider race explicitly as part of a holistic evaluation; and it may consider other indicia of merit that provide democratic legitimacy, such as evidence of an applicant's service commitments, pluck in the face of disadvantage, or residence in an underrepresented geographic area. 328 In the short term, individualized, holistic review of all candidates will bring colleges and law schools into compliance with Grutter. Individualized review will allow institutions to admit students of color "in meaningful numbers" to ensure that students from underrepresented communities contribute to the character of the school and, in the case of law schools, to the legal profession. 329 But in the long run, using affirmative action simply to perpetuate the status quo will likely backfire for practical, financial, and political reasons. Universities may be dogged by complaints that they are not really following Grutter, that their methods are too subjective, that their procedures lack transparency, or that their policies leave the decisionmaking power firmly in the grasp of admissions bureaucrats. Moreover, institutions committed to affirmative action as an add-on will be hard-pressed to keep up with changing demographics: admissions practices that depend [*200] on the language of critical mass may unintentionally result in an upper-limit quota that artificially suppresses the number of black and Latino admittees, despite the burgeoning number of such students in the eighteen-to twenty-four-year-old age cohort. 330 Nor will diversity alone create democratic legitimacy if the leadership class is seen

as inaccessible or relatively isolated. Using diversity to expand educational access at the margins may improve an institution's track record for training leaders, but this tinkering will likely fail to achieve its ultimate mission. In fact, in a world governed by high-stakes rankings, sponsored mobility may not even continue to yield some of the public service benefits that it has in the past: schools today may not be willing to take the chances that they once took, and the public service commitment that once defined the affirmative action "pioneers" may not define their successors. 331 Nor will affirmative action policies necessarily create diverse environments if the beneficiaries are essentially the same as those admitted under the contest mobility regime apart from their phenotype. Holistic affirmative action remains a practical and worthwhile transitional response to the Supreme Court's opinions, especially if institutions begin to incorporate diversity as a core element of merit for all applicants, as the post-Gratz Michigan policies now do. But bolder steps are also needed, especially in light of Justice O'Connor's proposed end-date. While she voiced respect for the autonomy of universities, Justice O'Connor also announced an expectation that explicit considerations of race will no longer be necessary in twenty-five years. To meet such a formidable challenge, institutions of higher education will need to contemplate reform efforts that are simultaneously local 332 and national, 333 that take the institutions' public mission seriously, and [*201] that provide the public with opportunities to think through the structural changes that have affected higher education over the last three decades. Indeed, Justice O'Connor's twenty-five-year cautionary limit requires serious long-term planning. It is, as Derek Bok put it, a warning to universities that they must "do something about the underlying problem." 334 In an age of increasing competition for scarce admissions slots, changing demographics within a global economy, escalating demands within an information-and technology-based society, state fiscal woes, and increased U.S. presence as a proponent of democracy around the world, public institutions of higher education must do more than simply maintain the status quo if they hope to gain public confidence in their pursuit of the constitutionally sound elements of diversity identified by the Court in Grutter and Gratz. To gain a deeper understanding of the problem while garnering public confidence in their admissions practices, universities need to become racially literate. A racially literate institution uses race as a diagnostic device, an analytic tool, and an instrument of process. [*202] As a diagnostic or evidentiary device, race helps identify the underlying problems affecting higher education. Racial literacy begins by redefining racism as a structural problem rather than a purely individual one. Race reveals the ways in which demography is often destiny - not just for people of color, but for working-class and poor whites as well. Race constantly influences access to public resources, while also revealing the influence of class and geographical variables.

Racial literacy, therefore, continuously links the underrepresentation of blacks and Latinos to the underrepresentation of poor people generally. At a minimum, it reminds public institutions of higher learning that the "idea of access is deeply embedded in [their] genetic code" and thus, the underrepresentation of certain demographic groups illuminates their failure to fulfill their public responsibilities. 335 When race is engaged directly, as it was in Texas following Hopwood, 336 it can shed light on the confluence of forces that are truly responsible for current public dissatisfaction and that adversely affect people of all colors. 337 At one time, for example, it was commonly accepted [*203] that each generation should publicly subsidize educational opportunity for the next generation. 338 Yet today, higher education is no longer the engine of upward mobility and democratic opportunity that it was once imagined to be. Nor has it remained focused on its original purpose: to train leaders who then go on to serve society. 339 Instead, it has become "a national personnel department" 340 that sorts and ranks people and grants "the high scorers a general, long-duration ticket to high status that can be cashed in anywhere." 341 Selective universities, in particular, use their admissions practices to generate a permanent governing elite, in ways that are inconsistent with democratic values of equal opportunity, accountability, and service. As Nicholas Lemann reminds us, "the chief aim of [higher education] should be not to sort out but to teach as many people as possible as well as possible, equipping them for both work and citizenship... . The purpose of schools should be to expand opportunity, not to determine results." 342 Racial literacy sees the decline in government investment in higher education, along with the accompanying justificatory rhetoric of individual responsibility and individual "desert," as deeply problematic. Racial literacy suggests that admitting a more diverse class of students not only benefits individual students, but is also necessary to realize the social function and values of higher education, including democratic access, equal opportunity, and public service. 343 The idea that [*204] each person is alone responsible for her fate and her tuition has allowed government support for higher education to plummet while costs skyrocket. 344 Meanwhile, the goal of training future leaders - once the noble ambition of public institutions and their signature contribution to society - continues to atrophy. As an analytic tool, racial literacy locates the emerging debate on the dynamic nature of merit 345 within an explicitly democratic and future-oriented context. Racial literacy gives institutions a way to rethink [*205] merit in the context of public service and as a forward-looking rather than backward-looking project. It reminds those who keep Justice O'Connor's end-date in view that even audacious action may be appropriate and that the risks involved will be repaid in "rich dividends to society and to the concept of democracy." 346 Racial literacy helps institutions as they choose between contest, sponsored, and structural mobility. Using racially literate criteria to select among the three kinds of

upward mobility is permissible under Grutter, is not jeopardized by Gratz, 347 and is not only defensible, 348 but may be politically necessary. Racial literacy discloses how all of these admissions processes use sociological proxies for assessing "merit" and future potential. Contest mobility purports to rank individuals, yet it relies on data that is closely aligned with group, not individual, attributes and assets, such as parents' education, grandparents' socioeconomic status, and other indicators of privilege. Sponsored mobility also purports to rank individuals, yet it fails to take account of group bias, which may depress individual performance, 349 tilt the prefer-ences of individual sponsors, and systematically distort the opportunity [*206] structure for talented individuals. 350 Each type of mobility puts on the table a different understanding of whether merit is fixed or contextual, stable or responsive, real or imagined, performative or service-oriented. By situating merit within structures of opportunity, racial literacy encourages consideration of qualities that current admissions policies overlook. As a result, racially literate yet selective institutions may be able to relax their efforts to predict short-term outcomes and focus more on encouraging long-term commitments to service and community leadership. 351 Indeed, if institutions examine closely the relationship between their own educational objectives and their public mission, a larger set of democratic principles may begin to animate the process for making allocative choices, ultimately yielding something akin to "democratic merit." 352 Democratic merit emphasizes the importance of linking an institution's admissions policy for all applicants to its educational and public missions, combining a commitment to construe educational opportunity broadly with an obligation to educate individuals who then serve their communities and the larger society. It views higher education as a chance to develop more fully the talents of the American people and to train them for positions of governance and service, which, after all, was central to the original mission of public higher education in this country. Democratic merit rejects "the idea of having a general-purpose [permanent] meritocratic elite generated through university admissions," especially one that is neither public-spirited nor committed to national service. 353 It emerges from a public conversation [*207] about the future of our society rather than from a "slow-motion invisible Constitutional Convention whose results ... determine the American social structure." 354 In this respect, institutions can draw on the view, expressed forcefully in Grutter, that an educational system available to all is important to a well-functioning democracy. Public universities, on the whole, have already committed themselves to this vision, as evidenced by the remarkably consistent language of their mission statements, the majority of which indicate a commitment to public service and the training of leaders. 355 These community-oriented goals help justify the volume of taxpayer dollars, either directly raised or indirectly gained through tax abatements, required to support institutions that do not, after all, benefit everyone directly (that is, through instruction in a classroom setting). 356 Democratic merit thus responds to Justice Thomas's critique of sponsored mobility as a thin form of elitism, as well

as the implication from Justice Ginsburg's analysis that contest mobility cannot assure diversity. Racial literacy also has a process dimension that uses race to guide participatory problem solving and accountability. In order to change the way race is understood, race has to be directly addressed rather than ignored. Race is often the subtext of public conversations about institutional goals. In fact, informed discussion about why education is now more desirable but less affordable or accessible often gets drowned out by inflammatory and polarizing rhetoric about race or by equally divisive rhetoric about individual responsibility and merit. By contrast, discussion among a diverse group of citizens about the ways race reveals rather than produces these social costs helps institutional policies become more transparent and thus more legitimate. 357 For example, [*208] discussion about the consequences of Justice O'Connor's proposed twenty-five-year expiration date for considerations of race in admissions decisions might prompt institutions to shift their emphasis from education as a reward for past achievement to education as an opportunity to prepare for future service and leadership. To the extent this shift occurs as part of a larger public conversation, it will engender public confidence and much-needed public support in an era of rising tuition and declining federal and state funding. 358 Institutions could also make their processes more transparent by taking the views of various constituencies into account, even as they develop in the short term their new, holistic methods of reviewing candidate files. 359 A broadly participatory process that includes the relevant stakeholders 360 also helps satisfy the legitimacy concerns articulated by Justice O'Connor and modified by Justice Thomas's critique of elitism. Such a process would include professional educators and administrators, and would respect their expertise and specialized knowledge. 361 But this process would also seek opportunities to communicate [*209] openly and engage with a group that is sufficiently diverse and informed to be critical, 362 to mitigate the tendency of socially isolated decisionmakers to select those like themselves, 363 to pay attention to issues of race and power, 364 and to consider the connection between admissions and pedagogy. 365 [*210] Racial literacy teaches that the experiences of those who have been left out not only catalyze a deeper understanding of social structures and make visible familiar yet unexamined assumptions, but they also enable institutions to check their progress in attaining their goals. 366 Racial literacy brings these insights to the process of deliberation, emphasizing the value of dissent, 367 the need to monitor decisions through self-reflection, 368 and a commitment to transparency that includes attention to racial demographics throughout the process. 369 Race provides [*211] both information and motivation to operationalize a process of self-monitoring and experimentation that is consistent with Justice O'Connor's invitation to begin "a reflective conversation with the situation." 370 Such a process would engage in research on the long-term impact of admissions decisions. It would avail itself of opportunities for self-reflection over time, use

numbers as tools for compliance and self-scrutiny rather than as definitive or predictive measures of outcomes, and remain open to experimentation. 371 While a racially literate perspective is broad enough to consider class and geography, race remains a crucial factor. Even those institutions that decline to take full advantage of Grutter's limited sanction of the use of race to pursue greater diversity cannot ignore race in the discussion about whether higher education is fulfilling its role. Although the GI Bill, for example, provided upward mobility for returning veterans, many black veterans were denied access to its provisions. 372 Although some may discount [*212] the example as historically dated, Justice Ginsburg's dissenting opinion in Gratz should serve as a reminder that many of the disadvantages that were once dispensed under color of law are now experienced without the benefit of legal redress or attention. It is out of a deliberative and interactive process that the institution should create its mission and explore the possibilities of reconstituting itself through admissions rituals. 373 Such a process may generate a hybrid form of contest and sponsored mobility, similar to the choices made by the University of Michigan Law School and by the college post-Gratz. It is just as plausible, however, that a process that includes relevant stakeholders in a larger public conversation may prefer social engineering to yield structural mobility, similar to the GI Bill and current military programs, which provide educational opportunity in exchange for national or community service. Whatever the outcome, the process of choosing among contest, sponsored, and structural mobility must be understood as a political act with important societal, not just individual, consequences. It also bears noting that whatever form of educational opportunity is selected, university presidents, faculty, and administrators can play a vital role in engaging both internal institutional actors and the public in that selection process, working with community leaders to broaden educational opportunity more generally. 374 As part of this process, [*213] they would invite public discussion of the role of higher education in a multiracial democracy. In light of the historic opportunity presented by Grutter and Gratz, as well as the need to respond to that opportunity with a mobilized and well-informed public, admissions decisions need to be transparent. Educational leaders should consider ways to engage both grassroots organizations and institutional constituencies to promote accountability and information sharing, to learn from their own mistakes, and to inform their judgments so that they are not oblivious to what is happening and failing elsewhere. 375 If universities hope to remain viable in the face of state fiscal crises, changing demographics, and the Court's twenty-five-year expectation that educators will assume greater responsibility in addressing such challenges, they must adopt policies informed by these circumstances, seek feedback on what their graduates do after graduation, and gather information on how institutional practices can broaden relationships with the community and with primary and secondary schools. If they use the insights gained from racial literacy to constantly retest their commitments, educational institutions will move closer to meeting Justice O'Connor's twenty-five year challenge.

Viewed in their most normatively appealing and democratically legitimating light, the opinions of Justices O'Connor, Thomas, and Ginsburg provide institutions with a choice among a set of practices that link democratic and educational missions. To retain public legitimacy, institutions should embed this choice in a process of experimentalism that is informed by investigation - a process that is participatory, racially literate, and democratically accountable. To sustain public confidence, institutions of higher education need to embrace a conception of diversity that is an escalator, not just a bridge. V. Looking Forward to the Future "I think it will help change our future more than anything else we've done," said the mayor of Indian Wells, California, after the town [*214] gave the equivalent of two-thirds of its annual budget to a new state university. 376 The new state college campus is in Palm Desert, California. It sits on 200 acres of land that the city set aside in 1999 for just this purpose. In the face of California's budget crisis, local largess has made this new campus possible. Through its generosity, a partnership of business leaders, philanthropic community members, and local city officials is planting seeds for the future. More than forty percent of the students are Latino; eighty percent of the students work; and most come from "humble backgrounds, like the children of groundskeepers and maids at local resorts." 377 Few of the donors or their children will enroll, but their altruism has created opportunities for cultural richness through lectures and concerts on campus, and their pragmatism has made possible a new future for the local economy by addressing the lack of an educated workforce - especially teachers, nurses, accountants, and entrepreneurs. 378 Exemplifying most of the workforce, Raquel Borrego, a thirty-two-year-old college senior whose parents immigrated from Mexico, could not have received an education without traveling more than 120 miles to the nearest university. 379 In Worcester, Massachusetts, an unusual partnership has developed between a local private college and a public high school. Clark University officials offered funds, teachers, and other support to create University Park Campus School, which opened its doors in 1997 in a long-vacant elementary school across the street from the university. 380 Motivated by "enlightened self-interest," 381 the university acted to revitalize the local neighborhood, which had been deteriorating to the point that university officials were considering relocating to a rural area. Instead, they teamed up with the public school to make it "the centerpiece for neighborhood stability." 382 Though the undertaking was "an academic leap of faith," Clark leaders "had faith in the kids and faith in the neighborhood." 383 In the words of Tom Del Prete, the director of Clark's Hiatt Center for Urban Education: "We knew that good schools anchor people's commitment to a community." 384 Sixty percent of the students at the high school are either black, Latino, or [*215] Vietnamese; three-quarters of the students qualify for free or subsidized lunches. 385 Yet under the leadership of a visionary principal and supported by free tuition paid by the university, the senior class had a 100% passage rate on the state's mandatory

achievement test and a 98% attendance rate. 386 For the principal, Donna Rodrigues, these results convey a message many educators fail to grasp: "You can't keep taking credit for the top 20% of every class. You have to teach all the other kids. The challenges are these kids, poor and minority kids." 387 Not only is the senior class graduating and going on to college, but the experience has also attracted the attention of foundations and others who seek to replicate it. 388 Applications to Clark are up, and faculty recruitment has become easier. 389 "Certainly this partnership is seen as a national model," said Althea Frazier Raynor, a researcher at Brown University's Annenberg Institute for School Reform. "It stands out because it is making a specific commitment to help young people, mostly kids of color, in a disadvantaged community. It is giving them opportunities they probably never would have had." 390 Local business people in Palm Desert, California, and university officials in Worcester, Massachusetts, took seriously the social purpose of higher education and charted a new path. This path is flexible enough to meet both the internal needs of the institution and the external needs of the community served by the institution. It responds to the soaring demand for higher education as a means of upward mobility. It legitimates the values of democracy, such as inclusiveness in both process and outcome, participation, and accountability (including external transparency, openness to feedback, and long-term research). Finally, this new path uses race, class, and geography as triggers, and as continuous sources of information, for thinking about all of the above. Grutter invites just this kind of thoughtful investigation of allocative principles for distributing high-stakes educational opportunities in a democracy. These principles need not be reduced to fixed rules or tools for making admissions judgments. These two examples from opposite sides of the country show that a conversation is already underway that starts with the reality of local communities and situates ideas about educational excellence in a deeper and more contextual understanding [*216] of the educational and societal values that underlie admissions choices. 391 There are already many other innovative local efforts "to mobilize the contextual intelligence that only citizens possess through mechanisms for community participation in deliberation about problems, in developing and deciding among creative solutions, and in implementing those decisions." 392 Whether the context involves issues of state or regional school reform, local participants are playing important roles, "not merely to express an opinion - or demand a solution - but to help formulate and implement solutions." 393 The development of the Texas Ten Percent Plan and its implementation at The University of Texas at Austin illustrate another way in which an institution has adopted the foundational elements of this approach. The TTP embraced structural rather than sponsored mobility as the result of a democratic process. The process was informed by a racially literate, self-reflective deliberation among a diverse set of stakeholders, including professors, activists, legislators, and university administrators. Based on research, these stakeholders reframed merit by using race

as a diagnostic tool rather than a categorical proxy. 394 Selecting the top ten percent of each graduating high school class was not simply an admissions criterion; it was a means to operationalize the university's commitment to public service and democratic opportunity. [*217] Although the TTP has no application to a national law school like Michigan and is by no means a national panacea, it offers a useful example of experimental and democratic decisionmaking that changed admissions practices to expand opportunities for structural mobility. At the college level, the TTP also appears consonant with the general guidelines of both Grutter and Gratz. 395 Yet the TTP is more of a heuristic than a template. The significance of the TTP is that it helps us to explore the origin story: why the figure ten percent was chosen, how it was chosen, and how it was embedded in a transparent political process, rather than simply as an end in and of itself. The process of getting to the TTP is as important as the outcome. The involvement of local activists in the process, for example, distinguishes the Texas plan from the Florida one. 396 Other jurisdictions have borrowed the transparent process of the TTP but modified it to suit their own needs. For example, after witnessing highly publicized failures in the Chicago school system, the Illinois legislature passed the 1988 Chicago School Reform Act, 397 which mandated the creation of a "local school council" (LSC) for each elementary and high school in the city. 398 LSCs serve as an example of [*218] what Archon Fung calls "accountable autonomy": 399 local groups of "citizens and street-level public servants ... set and implement, through deliberative processes, the specific ends and means toward broad public aims such as school improvement and public safety." 400 Although a centralized authority monitors them and provides guidance, ordinary citizens are given the opportunity to "participate continuously and directly in the micro-governance" of an important public institution. 401 Moreover, parental turnout went up slightly as the proportion of black and Latino students in a school increased. 402 A public institution seeking to reach out to more of its citizens might consider a plan that would give LSC-like entities some input into the development of admissions criteria (for example, developing the relevant criteria for the students in their area) or the admissions process itself (such as nominating students for an admissions lottery or for certain spaces allocated by region in the institution). 403 Such a [*219] public institution might reject the TTP's use of high schools as the "governing authority" and reformulate the relevant subdivision to encompass a school district or a legislative district rather than indi-vidual schools. Certainly, the possibility of tying college admissions to redistricting would, at a minimum, increase public awareness of the redistricting process, an outcome that could hold accountable not only the institutions of higher education, but also the legislature itself. 404 Alternatively, communities whose members are traditionally underrepresented in post-secondary institutions could be allotted a certain number of slots at

competitive or top-tier universities, to be filled by a lottery after the applicants take an entrance exam and write an essay. This approach has been implemented at selective high schools. For example, at the International Academy in Bloomfield Hills, Michigan, Newsweek's "Best High School in America," five hundred students from thirteen surrounding school districts are chosen by lottery. 405 Communities themselves could even help develop the standards of eligibility for the lottery - a kind of "nomination" of candidates. This approach would be similar to the TTP but would allow such underrepresented students access to national universities, where percentage plans would not be feasible due to the size of their applicant pools. Because efforts to select just the right candidates are costly and not necessarily accurate, an institution might consider using a more general "wild card" lottery for some percentage of its slots, while approaching its admissions practices as a whole with an eye on fulfilling its public mission as well as furthering its own relationship to the community of stakeholders that sustains its existence. 406 The bottom line is that the institution may, on its own or in response to a mobilized public, consider a range of approaches. 407 There are, for example, a growing number of collaborations between colleges and high schools in which colleges are "adopting" high schools and overseeing reform efforts or running their own high schools on campus. Many of these examples focus on urban areas with high dropout [*220] or low college attendance rates; they encourage "regular" kids to go to college. 408 These efforts to integrate the last years of high school with the first years of college "increase the college-going rate for an at-risk population" 409 and can lead to improvement of poorly performing high schools. 410 Other colleges have developed extensive outreach and collaboration programs with secondary schools, usually in their own geographic areas. 411 For example, at the Riverside campus of the University of California, university officials are not officially adopting local high schools, but they are breaking down internal barriers between academics and outreach by appointing a math professor as the head of Riverside's School-University Partnership Program. 412 Faculty members head out to local high schools to engage students and counsel them on college requirements. 413 Riverside's chancellor has been spotted roaming the countryside to tell parents that their children need to take algebra [*221] in the eighth grade. 414 At UT Austin, university officials participate in local public school assemblies for similar reasons. 415 Even more selective institutions could benefit from such relationships. Witness the data showing that students admitted under the TTP outperform their peers as freshmen at UT Austin. 416 Because of their commitment to their communities and to public service, or because they more broadly reflect the public character of the institution, these students may also be more likely to fulfill the institution's public and forward-looking mission. These surprising results suggest that, as a result of design defects in sponsored mobility, selective institutions currently overlook candidates with low test scores who can nevertheless do the work and achieve the institution's public mission. Or consider the recent experience of Columbia

University when it opened a new elementary school for the children of its faculty. 417 Having battled and then learned from community critics, Columbia officials designed the new school to enroll neighborhood students as well as the children of faculty. 418 Lee Bollinger, who is now President of Columbia, explains that "there are lots of things we have to do to maintain pre-eminence in higher education in the United States." 419 By investigating such local innovations, selective institutions of higher education can better explore the connection between selection criteria and democratic, self-reflective, racially literate admissions practices. VI. Conclusion Admissions decisions are moments when public colleges, universities, or law schools define themselves to the community. When institutions reconstitute themselves through annual selection rituals, they define who they are as educational institutions, as educational communities, and as community actors in their local and national [*222] neighborhoods. To make allocative choices that respond to the complex conditions of the early twenty-first century, while taking advantage of the Supreme Court's deference to their educational judgments, educational leaders who seek to defend affirmative action need to resist the temptation simply to defend the status quo. The Court in Grutter and Gratz has given educational institutions wide latitude to experiment with different ways to fulfill their public mission. Institutions, for example, could adopt elements of the Texas Ten Percent Plan to provide access to educational opportunity using the concept of structural mobility. In so doing, they could allocate educational opportunity through a process that would be democratically accountable, periodically reviewed and reassessed in light of the institutions' educational and public missions, and considered in conjunction with a set of relationships to other educational actors, institutions, and relevant stakeholders in the community. Although there are good reasons not to adopt percentage plans, institutions might want to draw from the "most promising" of those "race-neutral" experiments "as they develop." 420 Alternatively, they might follow the example of Clark University in Worcester and adopt local public high schools, 421 which then feed their graduates to the college while stabilizing the neighborhood and making the college more attractive to other students. While experiments with structural approaches to admissions are among the most creative alternatives intended to open opportunity broadly, they will only work if sustained by public support and initiated by a broad multiracial coalition that is also involved in monitoring their performance. States are laboratories for experimentation, 422 and the leadership in higher education needs to be bold, given the Court's hope-filled expectation that considerations of race will no longer be needed in twenty-five years and the emerging crisis of confidence in the ability of universities to fill their public role as well as their coffers. 423 To restore public confidence and, even more important, public support, institutions in the post-Grutter moment have the opportunity to do

more than just hire additional application readers to identify promising candidates through sponsored mobility; they have the opportunity to invite [*223] a larger public conversation linking institutions' educational and public missions more carefully. One goal of this conversation is to help the relevant stakeholders see admissions decisions as a process, not as a fixed point on a scale. A second goal is to rethink the roles of both race and merit, using numbers as a source of accountability rather than certainty. Either an institution needs to develop the capacity and willingness to explain why race matters in an individual case, which then connects race to a conception of individual merit, 424 or the institution needs to connect race to a specified set of goals and institutional missions and use it continuously as a diagnostic and feedback tool. In either case, racial diversity becomes an essential element of merit, rather than an add-on to merit. The Grutter and Gratz decisions may ultimately usher in a historical moment in which institutions of higher education explore issues of access to education and the scarcity of resources - issues that make limitations on that access deeply problematic in democratic terms. Universities need to explain themselves better to the broader public through a conversation rather than a declaration. It is not simply time for a public relations battle; rather, it is an occasion to align educational opportunity with its cousin, democratic participation. The question becomes who should get opportunity given the long-term goals of the institution or the needs of the larger society, rather than who "deserves" a prize because she won a race or because her presence will improve the institution's rankings in a news magazine. To find the answer, university leaders need to consider the long-term needs of the institution, the concerns of local, regional, and national constituencies, and the stability of the larger society, in a manner that is consistent with the expectation that the university will produce a new generation of citizens capable of assuming a broad range of leadership roles. The post-Grutter moment is an opportunity to talk more openly about, and investigate more thoroughly and in contemporary terms, the ways in which race helps reveal the relationship between education and democracy. It is a chance to make ourselves more racially literate and to understand the ways in which the choice among contest, sponsored, and structural mobility is a fundamentally political act. [*224] By viewing their admissions decisions as political acts, in the virtuous sense of the phrase, universities can open the door to greater public support and confidence. Ultimately, this reevaluation of admissions choices may enable universities to join with others to create institutional structures that respond to the future while holding on to the best practices of the past. At the very least, it has the potential to transform the discussion from one fixated on ersatz preferences to one that actively confronts the reality of higher education's role in a multiracial democracy with the promise that education makes to us all. FOOTNOTES:

n1. E. Digby Baltzell, The Protestant Establishment: Aristocracy and Caste in America 351 (1964).

n2. Selective colleges and universities admit a class of students, not just discrete individuals. Most colleges and universities in this country admit most applicants who meet minimal levels of qualification. See Anthony P. Carnevale & Stephen J. Rose, The Century Found., Socioeconomic Status, Race/Ethnicity, and Selective College Admissions 8 (2003), available at http://www.tcf.org/Publications/White Papers/carnevale rose.pdf (explaining that approximately two-thirds of all colleges accept at least seventy-five percent of their total applicant pool). The University of Michigan - the subject of the Supreme Court's recent affirmative action cases - is not among these colleges. It is one of the most selective public universities in the country, accepting about fifty percent of its applicant pool. See Barron's Profile of American Colleges 807 (25th ed. 2003).

n3. The term "civic pedagogy" comes from Glenn Loury, who writes that "the selection of young people to enter prestigious educational institutions amounts to a visible, high-stakes exercise in civic pedagogy." Glenn C. Loury, Foreword to William G. Bowen & Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions, at xxi, xxii (2d prtg. 2000).

n4. Cf. id. at xxii ("The goals and purposes openly espoused by our leading colleges and universities are public purposes. (And, given their considerable influence on national life and culture, this is no less true of the private institutions. What a Harvard or a Princeton seeks to achieve is, in some measure, what America strives after.)").

n5. According to the amicus brief filed by the Association of American Law Schools (AALS) in Grutter v. Bollinger, 123 S. Ct. 2325 (2003): A very small group of schools produces a remarkable share of the Congress and federal judiciary... . [The most selective] law schools alone account for 25 of the 100 senators and 38 of 436 members of the House of Representatives ... . All nine

members of [the Supreme Court] attended one of the most selective law schools, and seventy-four judges in active service on the United States Courts of Appeals (nearly half the judges now sitting) received an LL.B., a J.D., or an LL.M. degree from one of this relative handful of law schools, as did nearly two hundred of the more than six hundred federal district court judges. Brief of Amicus Curiae Association of American Law Schools in Support of Respondents at 6, Grutter (No. 02-241) [hereinafter AALS Brief].

n6. The democratic mission of law schools is an explicit part of their American Bar Association (ABA) commitments. See Ctr. for Prof'l Responsibility, Am. Bar Ass'n, Annotated Model Rules of Professional Conduct, at xv (4th ed. 1999) (stating in the Preamble that lawyers serve as "public citizens"); AALS Brief, supra note 5, at 2 (stating that law schools "prepare students to practice a profession that lies at the core of American self-governance"); see also Sweatt v. Painter, 339 U.S. 629, 634 (1950) (stating that law school cannot be effective as an "academic vacuum").

n7. See, e.g., Loury, supra note 3, at xxii ("[The] perceived legitimacy [of admissions choices] is crucial in our stratified society, where one's place in the status hierarchy can turn on access to the elite institutions. (Consider, for example, what it would mean for our civic life if, due to the expense, only wealthy families could send their children to the most prestigious institutions.) It therefore matters a great deal - not just for the colleges and universities in question, but for all of us - how these admissions decisions are made."); Patricia Gurin et al., Diversity and Higher Education: Theory and Impact on Educational Outcomes, 72 Harv. Educ. Rev. 330, 353 (2002) (examining the effects of classroom diversity on democratic outcomes).

n8. See infra pp. 135-36 (defining the term "political act"). I borrow and adapt the term "political act" from Glenn Loury, who writes: Education is a special, deeply political, almost sacred, civic activity. It is not a merely technical enterprise - providing facts to the untutored. Inescapably, it is a moral and aesthetic enterprise - expressing to impressionable minds a set of convictions about how most nobly to live in the world. Moreover, this is a venue where access to influence and power is rationed... . These "selection rituals" [for admission to prestigious educational institutions] are political acts, with moral

overtones. Loury, supra note 3, at xxii. The word "political" may mislead some who think that the term means instrumental or self-interested. See, e.g., David B. Wilkins & G. Mitu Gulati, Reconceiving the Tournament of Lawyers: Tracking, Seeding, and Information Control in the Internal Labor Markets of Elite Law Firms, 84 Va. L. Rev. 1581, 1680 (1998) ("Although conducted in the language of merit, partnership decisions [in law firms] are fundamentally political contests in which particular partners have strong incentives to support their own prot<?extend ascii 233>g<?extend ascii 233>s."). I use the term "political," however, not to demean the process but to elevate it. See, e.g., Beth Roy, Bitters in the Honey 9 (1999) (describing storytelling as a political act because it reflects political choices about how to portray the past, how to relate the past to the present, and how to defend or contest social arrangements). Here, I use the term descriptively to illuminate the process that is presently invisible, and normatively to suggest that the process should be treated responsibly.

n9. See The Connection (WBUR radio broadcast, Sept. 16, 2003) (audio recording available at http://www.theconnection.org/shows/2003/09/20030916 a main.asp) (discussing with Patrick Callan, President of the National Center for Public Policy and Higher Education, how rising tuitions at state colleges and universities have reduced the supply of affordable education); Carnevale & Rose, supra note 2, at 62; infra p. 129.

n10. We live in a "winner-take-all" society that allocates to winners a disproportionate share of resources. See Robert H. Frank & Philip J. Cook, The Winner-Take-All Society 11-14 (1995) (explaining that winner-take-all markets create a premium on winning in any competition and heighten the desirability of elite educational credentials); Felicia R. Lee, Academic Industrial Complex, N.Y. Times, Sept. 6, 2003, at A13 (noting that the commodification of college degrees has reinforced "a competitive cultural ethos that relies more and more on ranking in many fields of endeavor, including college admissions"); see also infra notes 67-68 and accompanying text (describing an ideological shift in thinking about higher education as the individual's, rather than the government's, responsibility).

n11. See Anthony Carnevale, Comments at the Century Foundation Panel Discussion on the Future of Affirmative Action (Mar. 2003) (transcript on file with the Harvard Law School Library) (noting that, by 2015, the proportion of blacks and Latinos among eighteen-to twenty-four-year-olds will have increased from thirty percent to thirty-five percent); see also infra note 61.

n12. See infra notes 63-64 and accompanying text (describing the increasing demand for higher education because of its substantial wage premium, and the decreasing supply of educational resources, as states shift funding from higher education to prison construction).

n13. Sociological and cultural realities complicate educators' choices to equate merit with quantifiable and uniform measures. See infra pp. 144-46 (discussing the important role of U.S. News & World Report rankings in shaping admissions choices).

n14. See infra Part II.

n15. Carnevale, supra note 11; see also Roger E. Meiners, The Evolution of American Higher Education, in The Academy in Crisis: The Political Economy of Higher Education 21, 25 (John W. Sommer ed., 1995) ("The suspicion that public support for higher education has generally served to redistribute income to persons of higher-than-average wealth has existed since the inception of public universities. The governor of Kentucky denounced state support of Transylvania College in 1825, claiming, "The State has lavished her money for the benefit of the rich, to the exclusion of the poor ... The only result is to add to the aristocracy of the wealth, the advantage of superior knowledge.'" (omission in original)); infra pp. 127-30 (discussing changing demographics and the forces that affect the ability of working-class and poor individuals to afford the cost of higher education).

n16. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Kathleen Sullivan, After Affirmative Action, 59 Ohio St. L.J. 1039, 1040 (1998) (describing a "pincer movement of political and constitutional change" since Bakke); id. ("A political backlash against affirmative action dates back at least to the shift of working-class white Democrats to the Republican Party in the first Reagan election.").

n17. See, e.g., Cal. Const. art. I, 31(a) (approved Nov. 5, 1996) (codifying Proposition 209); Wash. Rev. Code 49.60.400 (2003) (approved Nov. 3, 1998)

(codifying Initiative Measure No. 200); see also Lydia Ch<?extend ascii 225>vez, The Color Bind: California's Battle To End Affirmative Action (1998) (describing the origins and passage of Proposition 209); Nicholas Lemann, The Big Test: The Secret History of the American Meritocracy 281-87, 293-336 (1999) (describing the success of Proposition 209 in California).

n18. 123 S. Ct. 2325 (2003).

n19. 123 S. Ct. 2411 (2003).

n20. Sixty-nine amicus briefs were filed in support of the University of Michigan Law School in Grutter, and forty-five amicus briefs were filed in support of the University in Gratz. See University of Michigan, Amicus Briefs Filed with the U.S. Supreme Court in Grutter v. Bollinger (Law School Lawsuit), at http://www.umich.edu/urel/admissions/legal/gru amicus-ussc/um.html (last updated Apr. 4, 2003); University of Michigan, Amicus Briefs Filed with the U.S. Supreme Court in Gratz v. Bollinger (Undergraduate Lawsuit), at http://www.umich.edu/urel/admissions/legal/ gra amicus-ussc/um.html (last updated Apr. 4, 2003); see also Mike France & William C. Symonds, Diversity Is About To Get More Elusive, Not Less, Bus. Wk., July 7, 2003, at 30 (describing how the business community vigorously defended the University of Michigan's affirmative action programs due to its economic stake in attracting minority customers and workers). The former president of the University of Michigan and named respondent, Lee Bollinger, was instrumental in mobilizing support from business, military, and educational leaders. See Lee C. Bollinger, My Case, Wall St. J., June 20, 2003, at A8.

n21. See Grutter, 123 S. Ct. at 2339-41.

n22. See id.; see also infra pp. 192-93 (discussing the ways in which race is properly considered in admissions decisions).

n23. See Grutter, 123 S. Ct. at 2347 ("We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved

today."); infra pp. 179-81 (explaining Justice O'Connor's willingness to defer to educational institutions in balancing their multiple goals, as long as their good faith is evidenced by a willingness to consider race-neutral alternatives).

n24. Derek Bok, Comments at Harvard University Civil Rights Project Conference (July 16, 2003). While universities ostensibly help students fulfill their individual potential, they could do much more to reconcile their own institutional values of inclusiveness, opportunity, and achievement of educational benefits. See Patrick Healy, Some Colleges Must Adjust Procedures, Boston Globe, June 24, 2003, at A1 ("Perhaps the greatest challenge for all universities ... is to work with schools to overcome educational inequities and other social problems so that college affirmative action is no longer needed by 2028, Justice O'Connor's soft deadline."). Universities should do more, for example, to build a K-12 educational system that prepares a diverse pool of candidates for college. See infra Part V (discussing university efforts to improve the local education system).

n25. See Christopher Jencks & Meredith Phillips, America's Next Achievement Test: Closing the Black-White Test Score Gap, Am. Prospect, Sept.-Oct. 1998, at 44, 44-53; see also Expert Report of Derek Bok, Grutter v. Bollinger, 137 F. Supp. 2d 874 (E.D. Mich. 2001) (No. 97-75928), http://www.umich.edu/urel/admissions/research/expert/bok.html ("It is true that compared with their extremely high-achieving white classmates, black students in general received somewhat lower college grades and graduated at moderately lower rates. The reasons for these disparities are not fully understood, and selective institutions need to be more creative in helping improve black performance, as a few universities already have succeeded in doing."). See generally The Black-White Test Score Gap (Christopher Jencks & Meredith Phillips eds., 1998) (analyzing the standardized test score gap between white and black students and suggesting explanations and possible solutions).

n26. See Patricia Gurin, Comments at Harvard University Civil Rights Project Conference (July 16, 2003). Studies suggest that white students have less experience with African-American, Latino, and Asian-American students than students of color have with white students. See John Matlock et al., Univ. of Mich., The Michigan Student Study: Students' Expectations of and Experiences with Racial/Ethnic Diversity 24-25, available at http://www.umich.edu/oami/mss/downloads/synopsis0103.pdf; Expert Report of Patricia Gurin at app. E, Gratz v. Bollinger, 135 F. Supp. 2d 790 (E.D. Mich. 2001) (No. 97-75321), Grutter v. Bollinger, 137 F. Supp. 2d 874 (E.D. Mich. 2001) (No. 97-75928), http://www.umich.edu/urel/admissions/research/expert/gurintoc.html

(providing empirical data about classroom and informal interactional diversity at the University of Michigan); Interview with Beverly Daniel Tatum, Acting President, Mount Holyoke College, in Cambridge, Mass. (Apr. 19, 2002) (referring to research concluding that white students are the most socially isolated students on campus when compared to international students or students of color); cf. Patricia Gurin et al., Context, Identity, and Intergroup Relations, in Cultural Divides 133, 149-59 (Deborah A. Prentice & Dale T. Miller eds., 1999) (analyzing the relationship between group identity and intergroup interactions); Gurin et al., supra note 7, at 343-58 (discussing the effect of diversity on learning outcomes).

n27. See Geoffrey L. Cohen et al., The Mentor's Dilemma: Providing Critical Feedback Across the Racial Divide, 25 Personality & Soc. Psychol. Bull. 1302, 1315-16 (1999) (discussing the challenges that mentors face in providing feedback to students of color); cf. Peter Schmidt, U. of Michigan Prepares To Defend Admissions Policy in Court, Chron. of Higher Educ., Oct. 1998, at A32 (citing a study that found that "black and white students thought about diversity, and judged the university's efforts, in very different ways ... . Black seniors were less than a third as likely as their white peers to believe that white professors respected students of color academically and treated them fairly.").

n28. Some of this reluctance reflects changes in public attitudes and increasing levels of tolerance that are premised on the need to see people as individuals rather than as members of demographic groups. But some of this reluctance is the result of a public relations coup by those who link Martin Luther King, Jr.'s dream of colorblindness to a rigid practice of colorblindness in the face of countervailing realities. See Lani Guinier & Gerald Torres, The Miner's Canary 32-66 (2002); Vincent Hutchins & Nicholas Valentino, Driving the Wedge: The Structure and Function of Racial Group Cues in Contemporary American Politics 1-9 (Sept. 1, 2003) (unpublished manuscript, on file with the Harvard Law School Library) (describing the normative commitment to racial equality that has led political elites to substitute a "new language about race that appears to be not about race at all," and noting that elites tend to equate specific references to race with "racism"); cf. Grutter, 123 S. Ct. at 2350 (Thomas, J., concurring in part and dissenting in part) (appealing to the words of Frederick Douglass as support for a colorblind approach to higher education). Nevertheless, some racial attitudes, especially white resentment of black advancement, are framed to emphasize racial fairness to whites and are primed with both subtle stereotypic cues and more explicit appeals. See Hutchins & Valentino, supra, at 1-9; see also Lawrence D. Bobo, Inclusion's Last Hour?: Affirmative Action Before the Bush Court, Remarks at Stanford University's Center for Comparative Studies in Race and Ethnicity National Advisory Board Panel Discussion 4 (Jan. 17, 2003) (transcript available at http://ccsre.stanford.edu/EV events Bobo Inclusion.htm) (arguing that America has

"moved out of the Jim Crow racism era" and into a "new form of systematic, institutionally and ideologically embedded racial inequality that [is] the regime of laissez faire racism").

n29. See Dean E. Murphy, Affirmative Action Foe's Latest Effort Complicates California Recall Vote, N.Y. Times, Aug. 3, 2003, at A11 (noting that Ward Connerly, a prominent opponent of affirmative action, said that the Supreme Court decisions in Grutter and Gratz were both a setback and a source of motivation for people like him). The crusaders against affirmative action apparently hope to build on the fact that affirmative action remains controversial with working-class whites who do not presently enjoy the privilege of a college education, as well as with some upper-middle-class whites who suffer from status anxiety as they feel a loss of control over passing on their educational privileges to their offspring. See Carnevale & Rose, supra note 2; infra p. 150 (describing the reaction of affluent whites to the loss of their educational privilege); see also Curt A. Levey, Colleges Should Take No Comfort in Supreme Court's Reprieve, Chron. Higher Educ., July 18, 2003, at B11 (citing public discomfort with "racial preferences" while advocating the use of race-neutral alternatives to achieve diversity in higher education).

n30. See infra pp. 162-70 (discussing the development and implementation of the Texas Ten Percent Plan, which uses racial literacy to open up educational opportunities for blacks and Latinos as well as for poor and working-class rural whites); see also infra Part IV (defining racial literacy).

n31. See infra pp. 174-76 (discussing the Court's emphasis on the democratic value of higher education in Grutter and Gratz).

n32. See Guinier & Torres, supra note 28, at 11-12 (describing the ways in which individuals who are racially marginalized play a role equivalent to the canary in the mines, serving as the "first sign of a danger that threatens us all"). Gerald Torres and I use the idea of "political race" to capture the relationship between race, power, and institutional structure. Id. at 14-31. The theory of political race assigns a real meaning to race but does not view race primarily as biological or phenotypic. Id. Instead, race is viewed as political in the sense that it is tied to the distribution of social goods, can motivate collective action, promotes a critique of systemic unfairness, and can be used to build cross-racial coalitions if it is linked to issues of class, gender, and social change. Id. at 14-16, 254-302.

n33. For example, the conversation about race implicates the concerns of all who cannot ascend the higher education escalator to the American Dream. See infra notes 104-106 and accompanying text (describing the important role that education plays in upward mobility). Race often plays a similar role in the context of military enlistment, see Adam Clymer, Service Academies Defend Use of Race in Their Admissions Policies, N.Y. Times, Jan. 28, 2003, at A12, which can provide an alternative path of educational upward mobility for those who do not move on immediately to institutions of higher education after high school. See Abby Goodnough, Where Semper Fi Is a Password Out: Officer Training Finds Niche at a Tough Brooklyn High School, N.Y. Times, Apr. 22, 2003, at B1; see also infra note 232. This analysis also applies to private universities, although this Comment focuses on the public institutions, such as the University of Michigan, that were the subject of the Grutter and Gratz cases and that educate the vast majority of U.S. students. See Karen W. Arenson, Public College Tuition Increases Prompt Concern, Anguish and Legislation, N.Y. Times, Aug. 30, 2003, at A10 ("Eighty percent of American college students attend public colleges and universities ... ."); cf. infra note 88.

n34. See generally sources cited supra notes 28, 32. It is not surprising that issues of race should emerge as higher education becomes increasingly scarce and the competition for access intensifies. According to the economic and political competition model of social psychology, prejudicial attitudes tend to increase when resources are limited and competition is heightened. See Elliot Aronson, The Social Animal 245 (4th ed. 1984).

n35. According to Carnevale and Rose, Americans "strongly associate affirmative action with racial preferences and do not view racial preferences favorably." Carnevale & Rose, supra note 2, at 28. Carnevale and Rose also report that "among White Americans, 52 percent say affirmative action should be abolished, and more than 80 percent oppose preference in hiring and promotions for racial minorities, even when the programs may help compensate for "past discrimination.'" Id. (footnote omitted).

n36. See infra pp. 140-42 (describing the relationship between democratic values and upward mobility).

n37. See infra pp. 148-49 (discussing the ways in which test scores and other

"objective" measures of merit overstate their own predictive capacity and overlook the long-term performance of people of color); infra pp. 146-48 (discussing how the correlation between test scores and socioeconomic status as well as parental education disadvantages rural whites along with blacks and Latinos); see also Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1049 (2002) ("In any admissions process where applicants greatly outnumber admittees, and where white applicants greatly outnumber minority applicants, substantial preferences for minority applicants will not significantly diminish the odds of admission facing white applicants.").

n38. See Guinier & Torres, supra note 28, at 71-73 (discussing the crucial support for the Texas Ten Percent Plan that came from conservative white legislators whose rural constituents had been underserved by the state's flagship colleges).

n39. In addition, it may be important even to the most fervent supporters of affirmative action to link race, class, and geography as interdependent variables in order to counteract the tendency of admissions officers to subvert racial categories in pursuit of other objectives, such as improving rankings in U.S. News & World Report. See infra pp. 155-57 (describing some institutions' preference for voluntary immigrants over involuntary ones because the former have higher median SAT scores).

n40. As I explain later, the admissions processes at private colleges also have political implications. See infra note 88.

n41. Even the general public supports admissions policies that are not based solely on race but nevertheless take racial diversity into account. See Carnevale & Rose, supra note 2, at 27-28.

n42. 2 Bruce Ackerman, We the People: Transformations 4-5, 17-26, 410 (1998) (defining and identifying "constitutional moments," such as Reconstruction and the New Deal, when the Constitution was transformed through popular mandate). Others have built on Ackerman's thesis by expanding the definition of "constitutional moment" to encompass less conspicuous events that nonetheless

marked a change in the popular understanding of constitutional meaning. See, e.g., James Gray Pope, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. Pa. L. Rev. 287, 292 (1990) (building on Ackerman's concept by offering the more expansive notion of "republican moments," which include "periodic outbursts of democratic participation and ideological politics" during which popular mandates produce changes in constitutional understandings outside of formal Article V procedures (internal quotation marks omitted)).

n43. Bruce Ackerman, A Generation of Betrayal?, 65 Fordham L. Rev. 1519, 1519 (1997); id. ("A constitutional moment occurs when a rising political movement succeeds in placing a new problematic at the center of American political life."). The debate-altering potential of these cases is evinced by the fact that many black leaders have already explored Grutter as an opportunity to broaden the conversation on race and education. Alice Hoffman, President of the California chapter of the NAACP, recently described her efforts to "capture the momentum from this. Timing is everything, and this definitely rekindles our efforts." Bobby Caina Calvan, States Eye Court's Race-Based Admissions Ruling: Some Calif. Leaders Seeking To Repeal Proposition 209, Boston Globe, June 25, 2003, at A3 (internal quotation marks omitted). The challenge will be to move the conversation from the margins of the underlying debate - admissions practices - to the center of the true problematic - educational equity - using the "momentum" created by Grutter to build a broad coalition among those willing to engage in the larger debate.

n44. Because of their professional mission to train public citizens, see supra note 6, law schools play a highly relevant role in this conversation. Nevertheless, the conversation must begin with an analysis of undergraduate admissions, for two reasons. First, the talent pool from which law schools must draw is necessarily limited to the cohort of college graduates. The diversity of our law schools is therefore constrained by the diversity of our college graduates. Second, despite their broader public mission, law schools tend to rely on admissions criteria that are more uniform than those employed by colleges, often overlooking creative intelligence or public service commitments in favor of narrower, quantitative measures of academic achievement.

n45. My discussion compares Justice O'Connor's majority opinion in Grutter, Justice Thomas's dissenting opinion in Grutter, and Justice Ginsburg's dissent in Gratz. Justice Powell's seminal opinion in Regents of University of California v. Bakke, 438 U.S. 265, 269 (1978) (opinion of Powell, J.), informed much, but not

all, of Justice O'Connor's analysis in Grutter. Justice O'Connor's opinion arguably departed from Justice Powell's influence and moved toward the Bakke dissenters' view that remedying societal discrimination by affirmatively integrating schools is a compelling governmental interest. See Bakke, 438 U.S. at 324 (joint opinion of Brennan, White, and Marshall, JJ., concurring in the judgment in part and dissenting in part); infra note 248. I thank Danielle Gray for this insight.

n46. Susan Sturm, Lawyers and the Practice of Workplace Equity, 2002 Wis. L. Rev. 277, 325 (internal quotation marks omitted).

n47. See infra note 391 (describing the need for universities to act as good neighbors for both instrumental and principled reasons); see also infra pp. 200-01.

n48. After reviewing the mission statements of several public colleges, Mindy Kornhaber has concluded that "public colleges and universities clearly are intended to benefit the wider society." Mindy L. Kornhaber, Reconfiguring Admissions To Serve the Mission of Selective Public Higher Education 11 (Jan. 14, 1999) (unpublished manuscript), available at http://www.civilrightsproject. harvard.edu/research/testing/Reconfiguring Admissions99.pdf.

n49. For example, the University of Michigan's mission is to achieve "pre-eminence in creating, communicating, preserving, and applying knowledge and academic values, and in developing leaders and citizens who challenge the present and enrich the future." University of Michigan, Facts About Michigan: Table of Contents, at http://www.umich.edu/newsinfo/factcont.html (last visited Oct. 11, 2003); see also University of Michigan, Mission Statement & Overview, at http:// www.admissions.umich.edu/process/review/intro/ (last visited Oct. 11, 2003) [hereinafter Michigan Mission Statement]. Published in conjunction with revisions of the undergraduate admissions process in the wake of Gratz, the statement asserts that "the University of Michigan seeks to enroll and graduate applicants who will develop and grow educationally and personally and will contribute to the University community, the State of Michigan, and the broader society." Id. The mission of the University of California is "to serve society as a center of higher learning, providing long-term societal benefits through transmitting advanced knowledge, discovering new knowledge, and functioning as an active working repository of organized knowledge." University of California, University of California: Mission Statement, at http://universityofcalifornia.edu/ aboutuc/missionstatement.html (last modified Sept. 9, 2003). At The University of

Texas, the mission "is to achieve excellence in the interrelated areas of undergraduate education, graduate education, research, and public service." The University of Texas at Austin, Compact with Texans, at http://www.utexas.edu/welcome/compact (last modified May 7, 2003).

n50. See Kornhaber, supra note 48, at 10 ("These institutions are to provide instruction to build students' knowledge in various disciplines. They are also formed to conduct research to advance the boundaries of existing knowledge. The third component, service, originated with American public higher education and may be its key contribution to all universities public and private, here and abroad." (citations omitted) (citing Edward Shils, The Calling of Education (Steven Grosby ed., 1997); and Derek Bok, Beyond the Ivory Tower: Social Responsibilities of the Modern University (1982))); see also Ernest L. Boyer & Fred M. Hechinger, Higher Learning in the Nation's Service 23-41 (1981) (examining universities' role in teaching, research, and service).

n51. See Kornhaber, supra note 48, at 10 (citing John S. Brubacher & Willis Rudy, Higher Education in Transition 14, 17 (3d ed. 1976)).

n52. Id.; see also Thomas Jefferson, Preamble of "A Bill for the More General Diffusion of Knowledge" (1778), reprinted in Thomas Jefferson and Education in a Republic 80, 80-81 (Charles Flinn Arrowood ed., 1930) ("Experience has shown, that even under the best forms [of government], those entrusted with power have, in time, and by slow operations, perverted it into tyranny; and it is believed that the most effectual means of preventing this would be to illuminate, as far as practicable, the minds of the people at large ... .").

n53. See Kornhaber, supra note 48, at 10 (citing Report of the Commissioners for the University of Virginia (1818), reprinted in part in Lawrence A. Cremin, American Education: The National Experience 1783-1876, at 110 (1980)).

n54. See id.; see also Lemann, supra note 17, at 52 ("Land-grant colleges, like public schools, were supposed to be broad-gauge providers of opportunity. The idea of economic opportunity being not provided but distributed, selectively handed out, through education - an idea taken so much for granted today that we don't even think of it as a distinct idea - was not even part of the discussion.").

n55. See, e.g., Brown University, Mission Statement (Apr. 17, 1998), at http://www.brown.edu/ Faculty/Faculty Governance/mission.html ("The mission of Brown University is to serve the community, the nation, and the world by discovering, communicating, and preserving knowledge and understanding in a spirit of free inquiry, and by educating and preparing students to discharge the offices of life with usefulness and reputation."); Cornell University, Cornell's Mission and Values, at http://www.cornell.edu/CUHomePage/Mission.html (last modified Apr. 16, 2003) ("Cornell is a learning community that seeks to serve society by educating the leaders of tomorrow and extending the frontiers of knowledge... . We apply the results of our endeavors in service to our alumni, the community, the state, the nation, and the world."); Duke University, The Mission of Duke University (Feb. 23, 2001), at http://www.planning.duke.edu/mission.html ("Duke University seeks to engage the mind, elevate the spirit, and stimulate the best effort of all who are associated with the University; to contribute in diverse ways to the local community, the state, the nation, and the world; and to attain and maintain a place of real leadership in all that we do."); Emory University, About Emory, at http://www.emory.edu/ADMISSIONS/indexa.htm?content html/extras.htmmainFrame (last modified Aug. 1, 2003) ("Emory University's mission lies in two essential, interwoven purposes: through teaching, to help men and women fully develop their intellectual, aesthetic and moral capacities; and, through the quest for new knowledge and public service, to improve human well-being. These purposes rest upon the premises that education is the most powerful social force of our time for enabling and ennobling the individual, and that the privilege of education entails an obligation to use knowledge for the common good."); Harvard University, What Is Harvard's Mission Statement? (Feb. 23, 1997), at http://www.harvard.edu/ help/faq index.html/faq110.html ("Harvard expects that the scholarship and collegiality it fosters in its students will lead them in their later lives to advance knowledge, to promote understanding, and to serve society."); University of Notre Dame, Mission Statement, at http://www.nd.edu/ aboutnd/about/mission/mission statement.shtml (last modified Sept. 9, 2003) ("The University seeks to cultivate in its students not only an appreciation for the great achievements of human beings but also a disciplined sensibility to the poverty, injustice and oppression that burden the lives of so many. The aim is to create a sense of human solidarity and concern for the common good that will bear fruit as learning becomes service to justice."); Washington University in St. Louis, University Mission Statement, at http://www.wustl.edu/university/mission.html (last visited Oct. 11, 2003) ("Central to our mission are our goals, which are to foster excellence in our teaching, research, scholarship, and service; to prepare students with the attitudes, skills, and habits of lifelong learning and with leadership skills, enabling them to be useful members of a global society; and to be an exemplary institution in our home community of St. Louis, as well as in the nation and in the world.").

n56. Grutter, 123 S. Ct. at 2340 ("We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to "sustaining our political and cultural heritage' with a fundamental role in maintaining the fabric of society." (quoting Plyler v. Doe, 457 U.S. 202, 221 (1982))); see also infra pp. 174-76 (discussing the Court's emphasis on the development of the individual as well as the public values of education).

n57. See, e.g., John Aubrey Douglass, The California Idea and American Higher Education: 1850 to the 1960 Master Plan 2 (2000) (describing Harvard and Yale as "homes ... for educating the sons of America's elite"); Meiners, supra note 15, at 27 ("Around 1900 the Ivy League schools were essentially social centers for the sons of the wealthy. There appeared to be little concern with academics; most colleges were little more than large fraternities.").

n58. See, e.g., David Brooks, Bobos in Paradise: The New Upper Class and How They Got There 28 (2002) ("In the 1920s, sensing a threat to the "character' of their institutions, Ivy League administrators tightened their official or unofficial Jewish quotas. Nicholas Murray Butler at Columbia reduced the proportion of Jews at his school from 40 to 20 percent in two years. At Harvard, President A. Lawrence Lowell diagnosed a "Jewish Problem' and also enforced quotas to help solve it."); Lemann, supra note 17, at 151 (noting the suspicion that "character" was used as a basis for religious and ethnic discrimination); Kornhaber, supra note 48, at 10 ("Jefferson's desire to foster an enlightened citizenry was clearly hobbled by the exclusion from the university of women and African Americans."). It was not until the second half of the twentieth century that the Supreme Court made it unconstitutional for state colleges and universities to exclude African Americans on the basis of race, see Sweatt v. Painter, 339 U.S. 629, 635-36 (1950), or to segregate them after admitting them, see McLaurin v. Okla. State Regents for Higher Educ., 339 U.S. 637, 642 (1950). Women, Jews, and African Americans were not the only groups excluded from universities at this time; Latinos and Native Americans were also kept out. William C. Kidder, The Struggle for Access from Sweat to Grutter: A History of African American, Latino, and American Indian Law School Admissions, 1950-2000, 19 Harv. BlackLetter L.J. 1, 4 (2003); see also William C. Kidder, Situating Asian Pacific Americans in the Law School Affirmative Action Debate: Empirical Facts About Thernstrom's Rhetorical Acts, 7 Asian L.J. 29, 33-34 (2000) ("In 1971 there were a mere 259 [Asian Pacific American] first-year students enrolled in ABA-accredited law schools in the U.S." (citation omitted)).

n59. See, e.g., Reynolds v. Sims, 377 U.S. 533, 568 (1964) (holding that the

Equal Protection Clause required a one-person, one-vote system); Baker v. Carr, 369 U.S. 186, 209 (1962) (finding that issues of redistricting were justiciable).

n60. See generally Robert Moses & Charles E. Cobb, Jr., Radical Equations: Math Literacy and Civil Rights (2001) (arguing that a choice was made in the 1960s to provide a few blacks with the opportunity to attend white schools while leaving most blacks in the South in "sharecropper schools").

n61. Today, demographic projections suggest that the cohort of eighteen-to twenty-four-year-olds will soon include even more blacks and Latinos, who are disproportionately represented by women at institutions of higher education. See Carnevale, supra note 11 (noting that, by 2015, the proportion of blacks and Latinos among eighteen-to twenty-four-year-olds will have increased from thirty percent to thirty-five percent); cf. Grutter, 123 S. Ct. at 2362 n.11 (Thomas, J., dissenting) (discussing the underrepresentation of black men compared to black women at the University of Michigan law school). We seem ill-prepared for the pressures on educational resources that will continue to arise from the increasing diversity and population density among the eighteen-to twenty-four-year-old cohort.

n62. See Brooks, supra note 58, at 27 ("The launching of Sputnik made educational rigor seem vital to the national interest."); Kornhaber, supra note 48, at 10 ("Just over a century ago, federal legislation helped to create public colleges for African Americans in historically segregated areas. Following World War II, the GI bill enabled millions of veterans, most of whom were older and not economically privileged, to receive a college education." (citation omitted)); see also Servicemen's Readjustment Act of 1944 (GI Bill), Pub. L. No. 78-346, 58 Stat. 284, 288-89 (1944) (codified at 38 U.S.C. 3011). The GI Bill made a college education financially possible for "many more Americans than could previously afford it." AALS Brief, supra note 5, at 23; see also sources cited infra note 74; infra p. 203 (describing the link between educational opportunity and service).

n63. See Brooks, supra note 58, at 36 (noting that between 1980 and the mid-1990s, the proportional wage value of a college degree over that of a high school diploma doubled); Carnevale & Rose, supra note 2, at 16-20 (summarizing findings that those who attend selective institutions of higher education enjoy a wage

premium in the labor market, especially students from working-class backgrounds, and noting that a student who graduates from a large public university will likely earn thirty-two percent more than one who simply graduated from high school); Ill. Bd. of Higher Educ., Committee on Access and Diversity, Gateway to Success: Rethinking Access and Diversity for a New Century 3-4 (2001) (explaining that college attendance has increased dramatically since the end of WWII, particularly in the last fifteen years, because college graduates earn about fifty percent more over their lifetimes than those with a high school diploma and the greater demand among employers for an increased skill set and knowledge base lessens the job prospects for high school graduates), available at http://www.ibhe.state.il.us/Board/Agendas/2001/August/access%20and%20diversity%2 0final%20 report%208-21-01.pdf; John Immerwahr with Tony Foleno, Pub. Agenda, Great Expectations: How the Public and Parents - White, African American, and Hispanic - View Higher Education 5 (2000), http://www.highereducation.org/reports/ expectations/expectations.shtml (reporting the widely held belief that a college education is necessary for obtaining a good job and achieving a middle-class lifestyle); Alan B. Krueger, Economic Scene, N.Y. Times, July 24, 2003, at C2; Lee, supra note 10, at A15 (noting that college degrees are valuable "because they translate into good jobs and good money" and have become "market-driven commodities"); Rachel Hartigan Shea, How We Got Here, U.S. News & World Rep., Sept. 1, 2003, at 76, 78 (noting that, in 2001, those who graduated from college earned eighty-nine percent more than high school graduates); see also infra Part II. But see Krueger, supra (citing Stacy Berg Dale & Alan B. Krueger, Estimating the Payoff to Attending a More Selective College: An Application of Selection on Observables and Unobservables 30 (Princeton Univ., Working Paper No. 409, 1999) (finding that the selectivity of one's undergraduate college does not substantially affect later earning power), available at http://www.irs.princeton.edu/pubs/pdfs/409revised.pdf).

n64. See Guinier & Torres, supra note 28, at 265-83 (describing the ways in which spending on prisons has surpassed spending on higher education in states such as New York and California); Troy Duster, The New Crisis of Legitimacy in Controls, Prisons, and Legal Structures, Am. Sociologist, Spring 1995, at 20, 24-25; Fox Butterfield, Study Finds 2.6% Increase in U.S. Prison Population, N.Y. Times, July 28, 2003, at A8 (describing the sizeable increase in the prison population in 2002 and reporting that, in the same year, 10.4% of black men aged 25 to 29 were in prison); Anne Gearan, Terms for Federal Crimes "Too Severe," Justice Says, Boston Globe, Aug. 10, 2003, at A16 (""Our resources are misspent, our punishments too severe, our sentences too long,' [Justice Kennedy] said in remarks for the annual meeting of the American Bar Association.").

n65. See Greg Winter, Tens of Thousands Will Lose College Aid, Report Says,

N.Y. Times, July 18, 2003, at A13 (noting that "because of the swell in college-age students, and the rising popularity of higher education among low-income families, about 300,000 more people will receive Pell grants than do now," but the government's new formula for financial aid "will reduce the nation's largest grant program by $ 270 million and bar 84,000 college students from receiving any award at all"); see also Carnevale & Rose, supra note 2, at 62 ("Already huge numbers of low-income and minority students are prepared for college but unable to afford college altogether, unable to attend the more selective and expensive colleges, or unable to persist to graduation. These students don't need better preparation. Their problem can be handled in the short term by restoring levels of "unmet financial need' ... ."); Lee, supra note 10 (reporting that government financing for college is decreasing, creating financial pressures on both colleges and students); Shea, supra note 63, at 78-79 (same).

n66. See France & Symonds, supra note 20, at 30-31 ("Despite the attention given to the Supreme Court decision, the reality is that economics plays a more important role than admission policies in determining who goes to college and who graduates... . Most minority students attend community colleges and regional state schools, whose budgets are being hit as the states deal with the worst fiscal crisis they've faced since World War II."); Karen W. Arenson, G.O.P. Plan Would Restrict Rise in Tuition, N.Y. Times, Sept. 5, 2003, at A13 (reporting that college tuition is rising at a time "when attending college has become increasingly important"); Timothy Egan, States, Facing Budget Shortfalls, Cut the Major and the Mundane, N.Y. Times, Apr. 21, 2003, at A1; Jonathan D. Glater, High Tuition Debts and Low Pay Drain Public Interest Law, N.Y. Times, Sept. 12, 2003, at A1 (reporting that, since 1985, tuition has increased 159% at public and private four-year institutions, 171% at private law schools, and 223% at public law schools); Tim Jones, Oregon Slashes Budget After Voters Reject Tax Hike To Plug Huge Deficit, Chi. Trib., Jan. 30, 2003, 1, at 9; Krueger, supra note 63 (discussing increases in state college tuitions); Louis Uchitelle, Red Ink in States Beginning To Hurt Economic Recovery, N.Y. Times, July 28, 2003, at A1; see also Elizabeth Warren & Amelia Warren Tyagi, The Two-Income Trap: Why Middle-Class Mothers & Fathers Are Going Broke 9 (2003) (finding that today's average one-income family "must forfeit decent public schools and pre-schools, [as well as] college degrees, leaving themselves and their children with a tenuous hold on their middle-class dreams"); id. at 42 (noting that, "after adjusting for inflation, in-state tuition and fees at the average state university have nearly doubled in less than twenty-five years").

n67. Michael Hout, More Universalism, Less Structural Mobility: The American Occupational Structure in the 1980s, 93 Am. J. Soc. 1358, 1392 (1988) ("The Reagan administration's budget proposal for 1988 said, "Students are the principal

beneficiaries of their investment in higher education. It is therefore reasonable to expect them - not the taxpayers - to shoulder most of the costs of that investment.'"); Shea, supra note 63, at 78 ("During the Reagan era, we made a fundamental change and decided [financial aid] benefited the individual." (quoting Arthur Levine, President of Columbia Teachers College) (internal quotation marks omitted)). Once college became the individual's responsibility, not the government's, "loans overtook grants as the chief form of federal financial aid." Id. at 79; see also U.S. Dep't of Educ., Revised Fiscal Year 1982 Budget 3 (1981) ("In proposing these reforms, the Administration assumes that families and students - not the Federal government - should be the first source of funds for educational expenses."); Lani Guinier, Reframing the Affirmative Action Debate, 86 Ky. L.J. 505, 507 & n.5 (1997-1998) ("Consistent with its "self-help' philosophy, the Reagan Administration worked to reduce higher education subsidies and to change the Pell Grants from scholarships to loans primarily.").

n68. See Brooks, supra note 58, at 18-35 (noting the association popularly made in the 1950s and 1960s between education and the national interest); Lemann, supra note 17, at 64 (describing the post-World War II view, embodied in the Commission on Higher Education Report to President Truman, that government should finance the expansion of higher education, and describing the Report as a "clarion call ... to promote democracy and provide opportunity for all" by increasing the number of students enrolled in institutions of higher education and arranging for government subsidy of this expansion). This ideological shift draws on a winner-take-all culture that stresses the individualistic aspects of the competition. See supra note 10.

n69. Jim Wright, Comments at Harvard University Civil Rights Project Conference (July 16, 2003).

n70. Barron's Profile of American Colleges, supra note 2, at 1445.

n71. Robert Paul Wolff & Tobias Barrington Wolff, The Pimple on Adonis's Nose: A Dialogue on the Concept of Merit in the Affirmative Action Debate 6 n.14 (Aug. 13, 2003) (unpublished manuscript, on file with the Harvard Law School Library) (citing Harvard University, Report of the President of Harvard College and Report of Departments, 1949-1950, at 173-79 (1954)); see also id. at 66-67 (describing a shift to selective admissions policies to accommodate increasing demand). The AALS describes a similar trend in law school admissions:

Ironically, law school admissions became far more competitive at roughly the same time that significant numbers of minority students sought to attend. In 1960, for example, Harvard Law School - then probably the most selective school in the nation - admitted nearly half of all students who applied. Today, by contrast, Harvard admits fewer than 15% of its applicants. As late as 1965, at the very tail end of the period of less competitive admissions, Harvard Law School often enrolled only one black student per year. When Herman Sweatt applied to the University of Texas Law School, the school had only just adopted a competitive admissions process at all. Today, the University of Texas Law School accepts fewer than one-quarter of its applicants. AALS Brief, supra note 5, at 24 n.13 (citations omitted).

n72. Cf. Grutter, 123 S. Ct. at 2345 (calling "academic selectivity ... the cornerstone of [the law school's] educational mission"). Selectivity has also served nonacademic functions for many institutions. Cf. id. at 2360 (Thomas, J., dissenting) ("Since its inception, selective admissions has been the vehicle for racial, ethnic, and religious tinkering ... .").

n73. Lemann, supra note 17.

n74. Id. at 49-50 (noting that Conant's new elite were supposed to devote their lives to public service and that such public contributions would repay the debt of the student to the taxpayer who supplied the education); id. at 5-8 (describing Conant's alarm that America was developing a hereditary aristocracy and Conant's dream of inventing a new elite of talented, middle-class scholars who would be more socially committed, even selfless, because of their origins); see also Brooks, supra note 58, at 24, 26 ("At its best, the WASP establishment had a public service ethic that remains unmatched. Its members may have been uncomfortable with ambition, but they were acutely aware of obligation... . Conant dreamed of replacing this elite with a new elite ... . He didn't envision a broad educated populace making democratic decisions. Rather, he hoped to select out a small class of Platonic guardians who would be trained at elite universities and who would then devote themselves selflessly to public service.").

n75. As the AALS writes in its amicus brief in support of the University of Michigan Law School: Admissions policy changes by the leading American universities transformed these institutions from bastions of privilege into the leading players in the formation and certification of [the] national meritocracy they now are. As even a staunch critic of university admissions policy over the last six decades concedes, academically selection admissions was originally designed to "depose the existing, undemocratic American elite and replace it with a new one made up of brainy, elaborately trained, public-spirited people drawn from every section and every background." AALS Brief, supra note 5, at 23-24 (quoting Lemann, supra note 17, at 5).

n76. Cf. Michael Young, The Rise of the Meritocracy 69-72, 122-23 (1958) (introducing the term "meritocracy" to satirize a system that allows those who succeed to believe that they deserve their fate in life).

n77. See, e.g., Lemann, supra note 17, chs. 1-7 (describing the history and development of the Scholastic Aptitude Test (SAT)).

n78. See id. at 140 ("The main point was that education would be available purely on the basis of ability, not money.").

n79. I use the term "testocracy" to highlight the ways in which selection policies are heavily dependent on ranking through standardized tests. See Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 Cal. L. Rev. 953, 968 (1996) ("By testocracy we refer to test-centered efforts to score applicants, rank them comparatively, and then predict their future performance."); see also infra note 122. In this Comment, I do not discuss achievement tests, which tend to limit their claims to identifying what students have already learned. I limit the discussion to aptitude tests, which allocate opportunities to learn or succeed based on claims about their ability to predict future performance. Nor do I discuss here the important question of standards of actual performance or the way expectations of high achievement influence and reinforce student learning. In other words, this Comment should not be construed to map out all the ways in which achievement may be shaped or influenced. It is

limited to a discussion of the allocation of high-stakes educational opportunity based on assumptions about who deserves that opportunity.

n80. I borrow from David Wilkins the term "visible, rankable" merit. David B. Wilkins, On Being Good and Black, 112 Harv. L. Rev. 1924, 1960 (1999) (reviewing Paul M. Barret, The Good Black: A True Story of Race in America (1999)); David B. Wilkins & G. Mitu Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis, 84 Cal. L. Rev. 493, 500 (1996). In this new "meritocratic" accounting, merit is a scarce and fixed resource, and true freedom - meaning the limitless opportunity to succeed at the frontiers of knowledge and entrepreneurship - lies in finding and rewarding those with the most individual merit.

n81. See Lemann, supra note 17, at 23-26 (describing the attraction of standardized tests that put social science to work to enable institutions to rank and sort a more geographically dispersed talent pool).

n82. David Brooks notes: In 1952 most freshmen at Harvard were products of ... the prep schools in New England (Andover and Exeter alone contributed 10 percent of the class) ... . Two-thirds of all applicants were admitted. Applicants whose fathers had gone to Harvard had a 90 percent admission rate. The average verbal SAT score for the incoming men was 583 ... . Then came the change. By 1960 the average verbal SAT score for incoming freshmen at Harvard was 678, and the math score was 695. Brooks, supra note 58, at 25. SAT scores at Harvard have continued to rise. In 2001, the twenty-fifth and seventy-fifth percentile SAT scores for incoming freshmen were 1380 and 1570, respectively. America's Best Colleges, U.S. News & World Report, 2003, at 82-83.

n83. Ironically, Michael Young, the sociologist who coined the term "meritocracy," imagined this outcome. See Young, supra note 76, at 69.

n84. See, e.g, Brooks, supra note 58, at 268; Lemann, supra note 17, at 344-47.

n85. The desire to diversify university campuses in ways that ostensibly benefited underrepresented people of color was one of the forces pushing colleges to include race among the relevant character traits. It was not, however, the only source of pressure. See infra pp. 142, 151-59.

n86. This shift was not limited to school admissions. See, e.g., Wilkins & Gulati, supra note 8, at 1679 (describing a similar transition at law firms, which in the 1960s looked for Nordics with clean-cut appearances). Yet racial diversity launched a polarizing controversy around what constitutes merit and what constitutes legitimate admissions criteria. One of the factors contributing to the controversy was the failure of universities to include diversity as an element of merit, which meant that issues of diversity were discussed separately from both "objective" and subjective indicators of merit and character. For reasons I explore later, people are reluctant to consider race as a truly meritocratic measure. For example, only the twenty-point bonus for race in Michigan's admissions grid was controversial, even though other categories in the grid, such as residence in the Upper Peninsula of Michigan, are closely correlated with race. See infra notes 249-258 and accompanying text.

n87. The admissions process identifies who "fits" into a selective group, the very selectivity of which conveys an attitude about excellence or desert. See Samuel Issacharoff, Can Affirmative Action Be Defended?, 59 Ohio St. L.J. 669, 684 (1998) (suggesting that the greatness of universities is predicated on their selectivity); Jeffrey Rosen, How I Learned To Love Quotas, N.Y. Times, June 1, 2003, 6 (Magazine), at 52 (same); cf. Daniel A. Farber & Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law 52-71 (1997) (arguing, in contrast to the views of such scholars as Patricia J. Williams, The Alchemy of Race and Rights 103 (1991), that evaluating merit is an objective, not a political, act). The fervor that accompanies the Farber and Sherry position reflects the political terrain being defended. I am not suggesting that there is no educational or substantive content to the idea of merit. Instead, I am suggesting that there are many ways to view that substantive content and that the choice among the views is linked to other goals: no one view can claim as its source some natural order of merit. Merit is contextual and a function of institutional mission. See Sturm & Guinier, supra note 79, at 1003-08; see also infra note 345 and accompanying text (describing merit as dynamic in its relation to both the educational institution's

mission and the changing relationship between an individual's talents and her environment).

n88. Much of this Comment's analysis will apply with equal force to public and private institutions. Like public institutions, private institutions distribute scarce resources in ways that maintain the institution's reputation, convey a political message about who belongs, and open doors to public goods and public roles. In addition, private institutions receive tax exemptions and federal funds and are thus partially subsidized by taxpayers. Moreover, just as public institutions of higher education have explicitly democratic commitments that form their mission statements and characterize their historical origin, private universities have a public character that goes well beyond whatever tax subsidies they receive. Nevertheless, private universities are not state institutions, even if they do receive federal funding. They may not owe a duty to serve the public in precisely the same way as public universities do. Although I include both private and public institutions in this analysis, I use the terms "public" and "private" in a philosophical rather than jurisprudential sense.

n89. See supra note 8.

n90. The admissions process has a democratic, community-building role. It has an expressive function because, as Professor Heather Gerken reminds me, it tells us who we are - and even more, who our children are. It is not like a voting rule or law that formally identifies someone as an insider or outsider. Yet it conveys a sense of belonging comparable to what many blacks sought when they fought for the right to vote. It communicates to students who walk on campus whether they belong, or whether members of their community "belong" in "the sense of being well-represented in the student body. The very concreteness of the decision to individuals - its value within our individualist national myth, the sense that it is tied to something much more objective than "politics' - is what gives the decision its power as a ritual." E-mail from Heather Gerken, Assistant Professor, Harvard Law School, to Lani Guinier (Sept. 25, 2003, 11:05:08 EST) (on file with the Harvard Law School Library). Politicizing admissions decisions, in the positive sense of the phrase - that is, making them more transparent - "will either lead to a more inclusive definition of the community, or it will undermine the power of the ritual itself because it will be seen to be "just politics' in the negative sense." Id.

n91. See Akhil Reed Amar & Neal Kumar Katyal, Bakke's Fate, 43 UCLA L.

Rev. 1745, 1774 (1996) ("As Brown v. Board of Education put it, education is "the very foundation of good citizenship' and "a principal instrument in awakening the [student] to cultural values,' preparing her for participation as a political equal in a pluralist democracy." (alteration in original) (quoting Brown v. Board of Education, 347 U.S. 483, 493 (1954)); see also infra p. 140.

n92. See supra note 66; see also Dillon, infra note 333 (noting that increased tuition discourages low-and moderate-income students from applying to college, despite financial aid).

n93. Admissions choices allow institutions to make educated guesses about who is likely to succeed, in short-term and long-term ways, as well as in individual and collective terms. Individual success is an issue internal to the institution in terms of the educational goals it sets for its students: the exchange of ideas within a classroom; performance on exams or other evaluative measures of substantive learning; the emotional intelligence involved in goal setting, motivation, work ethic, and interpersonal interaction; and the civic literacy dimension of participation, collaboration, debate, and leadership. Success also has an external dimension: the production of knowledge, the training of future leaders, the development of citizens capable of competing in the global economy, the protection of national security, and the strengthening of our democracy.

n94. See supra note 90 (describing how admissions decisions communicate community membership); see also infra p. 139 (describing how admission to an elite university signals special status). I am not advancing here, however, a well-developed normative claim about the university's role in a democracy. Instead, I am hypothesizing from national policy and local experiments, which have enabled universities to assume public responsibilities. For example, some universities have developed partnerships with local communities, as I describe in Part V; others have become racially literate and have embraced their larger role in structuring mobility in exchange for service, as I describe in section II.C and Part IV; still others have associated admissions with a more democratic understanding of merit, as I describe in Part IV. Each case reminds us that democracy and higher education are not necessarily mutually incompatible. Also illustrative is the public role played by Lee Bollinger, then-President of the University of Michigan, in defending affirmative action in Grutter and Gratz. While his public visibility may have been unusual, Bollinger successfully mobilized support among elites as well as grassroots activists. His unflinching defense of affirmative action in Grutter and Gratz dramatically changed the nature of the conversation and certainly contributed to the Supreme Court's unexpected vindication of his position. Of course, the danger is

that the Court victory will generate complacency rather than vigilance. Cf. infra note 121 and accompanying text.

n95. Again, I do not intend to denigrate the process by associating it with the term "political." Instead, I hope to highlight it, descriptively and normatively. See supra note 8. I am trying to foreground several related questions. First, is merit quantitative or qualitative? Second, is merit fixed, or is it dynamic and changing in response to environmental variables, including the opportunity to succeed at a selective institution? Third, is merit a natural element that inheres in the admissions criteria of all academic institutions, or is it functional and contextual, related to the mission of the particular institution? Fourth, is merit forward-or backward-looking? Is it an effort to perpetuate the status quo, or is it an attempt to anticipate the needs of the future? The answers to these questions depend on whether one believes selectivity itself conveys the necessary information about excellence and, if so, whether the metric for such selectivity should be universal, whether SAT or LSAT scores or high school grades. Alternatively, one might believe that selections should depend on an institution's distinctive substantive mission, which is tied to the changing needs and objectives of its many relevant communities. And if that mission is to serve the broader public, to improve K-12 education in the state, or to produce lawyers who are public citizens, can an institution be "excellent" if it succeeds in meeting its mission even though it is not selective?

n96. For reasons both pragmatic and principled, upward mobility plays a dominant role in configuring the relationship between higher education and the values of individualism, democratic ideals, and merit. For example, higher education is one of the few places in our society that "encodes class gradations in a nuanced way." Roy, supra note 8, at 4 (describing the recognizable differences between the high school dropout, the Ivy League graduate, and the state college alumnus); see also William G. Bowen & Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions 256-58 (1998) (describing the value added of attending a selective institution). Bowen and Bok found that "the more selective the college black students attended, the more likely they were to graduate and to earn an advanced degree, the more satisfied they were with their college experience, and the more successful they were later in life." Krueger, supra note 63 (summarizing Bowen & Bok, supra, chs. 3-7).

n97. See John H. Langbein, The Twentieth-Century Revolution in Family Wealth Transmission, 86 Mich. L. Rev. 722, 734-35 (1988) (explaining that the provision of a college education is the primary vehicle, with the exception of the family

home, of intergenerational wealth transmission).

n98. Individualism informs and is informed by the American Dream. Sociologist Robert Bellah describes individualism as the essential philosophy of modern America, although a deeply problematic one. Robert N. Bellah et al., Habits of the Heart 164 (2d ed. 1996); see also id. at vii-viii ("We are united ... in at least one core belief, even across lines of color, religion, region, and occupation: the belief that economic success or misfortune is the individual's responsibility, and his or hers alone."); id. at 81 ("Insofar as they are limited to a language of radical individual autonomy, [Americans] cannot think about themselves or others except as arbitrary centers of volition. They cannot express the fullness of being that is actually theirs."). Nicholas Lemann describes a similar concept in what he calls "one-way libertarianism." Nicholas Lemann, The New American Consensus, N.Y. Times, Nov. 1, 1998, 6 (Magazine), at 37. Beth Roy, a sociologist who interviewed white graduates of Central High School in Little Rock, Arkansas, saw the relationship between individualism and the American Dream first hand: "The myth of Horatio Alger ... deeply imbues the white American psyche and is central to the ideologies internalized by white youths in the fifties, and still today. Indeed, it creates the terms by which we ... judge our self-worth." Roy, supra note 8, at 325; see also id. at 24 ("Nothing was owed anyone except what they earned by dint of hard work and responsibility... . Conversely, if one did that work ... then there was something owed: the American dream."). It is unsurprising that the majority in Grutter views individualized assessment as perhaps the most important characteristic of a lawful affirmative action program. See Grutter, 123 S. Ct. at 2343; see also infra Part III.

n99. Lemann, supra note 17, at 52 (describing how opportunity for all is "the most deep-seated wish in American culture"); see also id. at 50 (calling opportunity in America a "distinctive national preoccupation").

n100. Marshall Berman, The Politics of Authenticity: Radical Individualism and the Emergence of Modern Society 313-15 (1970). Meanwhile, a related, though more propertized, concept of the individual was developing on the other side of the Channel. Described critically by C.B. MacPherson as "possessive individualism," this English brand of individualism primarily emphasized ownership of the self, viewing society through the lens of a market metaphor. See, e.g., C.B. MacPherson, The Political Theory of Possessive Indi-vidualism: Hobbes to Locke 270 (1962) ("The basic assumptions of possessive individualism [are] that man is free and human by virtue of his sole proprietorship of his own person, and that human society is essentially a series of market relations."); id. at 263 ("The

individual is essentially the proprietor of his own person and capacities, for which he owes nothing to society."); id. at 3 ("[Liberal-democratic theory's] possessive quality is found in its conception of the individual as essentially the proprietor of his own person or capacities."); id. at 271 ("[A] possessive market society is a series of competitive and invasive relations between all men, regardless of class: it puts every man on his own.").

n101. Berman, supra note 100, at 89.

n102. See Jason P. Schachter et al., U.S. Census Bureau, Migration and Geographic Mobility in Metropolitan and Nonmetropolitan America: 1995 to 2000, at 1 (2003), available at http://www.census.gov/prod/2003pubs/censr-9.pdf ("Geographic mobility has long been an important aspect of American life ... . At an individual level, moving has a number of potential impacts, such as the potential for expanding economic opportunity or raising residential satisfaction."); id. at 2 (reporting that more than 120 million people, or 45.9% of the U.S. population, moved between 1995 and 2000). Nicholas Lemann compares higher education to a new frontier, noting that, "like the frontier, this distinctive American institution could give every citizen the opportunity to rise in the world." Lemann, supra note 17, at 48; see also id. at 49 (attributing to James Conant the view that America should use higher education as the "official repository of opportunity" to find "the equivalent of those magic lands of the old frontier").

n103. See Roy, supra note 8, at 325 ("The myth of American classlessness is intimately bound up with expectations of individual economic success.").

n104. See Lemann, supra note 17, at 121 ("Inevitably, "education becomes one of the principal means of vertical social mobility in the technical world,' and - notwithstanding Marx, or Michael Young - everybody benefits." (quoting Clark Kerr et al., Industrialism and Industrial Man: The Problems of Labor and Management in Economic Growth 37 (1960))). For both voluntary and involuntary immigrants, education was pivotal to the quest for freedom and opportunity. See Clark Kerr, The Great Transformation in Higher Education: 1960-1980, at 22 (1991) (identifying access to education as a primary reason for immigration to the United States, especially for immigrants leaving nations that confined educational opportunities to members of the higher classes); Clifton R. Wharton, Jr., Public Higher Education and Black Americans: Today's Crisis, Tomorrow's Disaster?, in Minorities in Public Higher Education: At a Turning Point 3, 3 (1988) (noting that

blacks have ardently believed in education "as central to the uniquely American belief in bettering one's lot in life" and that "the quest for educational opportunity has been largely indistinguishable from the quest for freedom and justice").

n105. The term "sorting hat" comes from the popular novel Harry Potter and the Sorcerer's Stone. It refers to a magic cap that reads minds and evaluates character in a sorting ceremony in order to assign future witches and wizards to residential houses. See J.K. Rowling, Harry Potter and the Sorcerer's Stone 114-21 (1997). The selection determines their friends, classmates, and the noble history to which they begin to fasten their identities. The hat itself can "cap them all," since "there's nothing hidden in your head the Sorting Hat can't see." Id. at 117 (emphasis omitted). The sorting ceremony determines a wizard's destiny. Here in the "Muggle" world, id. at 53, we ask standardized testing and admissions officers to play a similar role. Unfortunately for us, educational selection rituals are no magic hat.

n106. Beth Roy writes that "this theory of meritocracy ... is taught to young people on a very personal level, internalized early and well." Roy, supra note 8, at 325. The Central High graduates she interviewed, for example, considered high school to be "the essence of promise for the future," a place from which "anyone" could go on to succeed. Id. Accepting the meritocracy on its own terms, some Americans argue that affirmative action is problematic because it seems explicitly ascribed. For those individuals, the perception of a nonascribed meritocracy is more ideologically appealing because it represents, at its best, an "ideal" for distributing privilege to those most "deserving." By contrast, affirmative action, since Bakke, is presented as a compromise to support deviations from agreed-upon standards in order to promote some other end: diversity. Whereas meritocracy is both a means and an end, affirmative action is perceived as only a means toward a diffuse end - one that is vulnerable because it fails to articulate clearly who "fits" as contributing to diversity.

n107. See Carol S. Dweck, Motivational Processes Affecting Learning, 41 Am. Psychologist 1040, 1046 (1986) (finding that learning yields to work and does not simply depend on fixed, innate qualities).

n108. I am not advancing a theory of democracy in this Comment. I am instead trying to identify the ways in which values often associated with democracy, such as participation, fairness, and accountability, have informed to varying degrees the

practice of admissions. In this context, it is important to note that democracy is not only about holding elections to choose political leaders. See, e.g., Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community 31 (2000) (describing the modes of political participation that are integral to democratic citizenship); Heather K. Gerken, The Value of Second-Order Diversity to Democracy 1-2 (June 29, 2003) (unpublished manuscript, on file with the Harvard Law School Library) (describing the important role of the jury as a democratic institution).

n109. See AALS Brief, supra note 5, at 10 (stating that the primary mission of law schools is "not to reward recent college graduates for doing well, but to produce lawyers who serve their clients and the public"); supra notes 6-7. Democratic accountability is, however, by no means limited to law schools. See supra Part I.

n110. See infra notes 234-239 and accompanying text (describing the relationship between diversity, learning, and democratic participation).

n111. Of course, selecting a few group members to benefit from higher education helps to debunk racial stereotypes and provides role models to encourage others, ultimately aiding the group as a whole. But only the few who are selected actually enjoy the upward mobility associated with such selection. And often individuals who otherwise decline to associate with the group are selected as its representatives. See infra note 166 (discussing the way in which some black students admitted through affirmative action policies do not associate with African Americans).

n112. According to social psychologist Elliot Aronson, who reviewed a variety of works on the subject of prejudice, several nonexclusive factors contribute to this kind of racial stereotyping, including "economic and political competition or conflict," "displaced aggression," and "conformity to existing social norms." Aronson, supra note 34, at 245.

n113. Roy, supra note 8, at 338. Absent scapegoating, they fear that "they are not smart enough - or not good enough in some terrifyingly mystified way they cannot begin to understand." Id. at 338; see also Richard Sennett & Jonathan Cobb, The

Hidden Injuries of Class 33 (1972) ("The fear of being summoned before some hidden bar of judgment and being found inadequate infects the lives of people who are coping perfectly well from day to day ... .").

n114. See Roy, supra note 8, at 338. As Beth Roy explains: Americans' belief that anything is possible, our deep faith in rags-to-riches as a plausible life plan, at one and the same time requires a diluted sense of the meaningfulness of class and also inhibits understandings of how class is meaningful. Our lack of class identity also helps to isolate us as myths of unlimited opportunity cause us to view others with a keenly competitive eye. Since we can neither measure nor explain our own successes and failures in terms of social location, we watch carefully how we compare to others. Id. at 326. One alternative scapegoat is "the government," which is associated with handouts to blacks, Latinos, and others. Guinier & Torres, supra note 28, at 40.

n115. Witness the intergenerational wealth transfer that enables white middle-class families to accumulate, on average, "net financial assets nearly 55 times greater than that of their black counterparts." Guinier & Torres, supra note 28, at 47. For many whites, grandparents help subsidize their education, whereas for many blacks, an education is an essential means of gaining financial security to help support their grandparents. Cf. Robert Gavin, In Paying for School, More Grand Gestures, Boston Globe, Sept. 6, 2003, at A1 (describing a white grandparent transferring $ 500,000 in assets to pay for nine grandchildren to attend prep school, and reporting that fifty-four percent of grandparents in one survey said they planned to finance some part of their grandchildren's college education). Or consider a recent study finding that black job applicants, including those with better credentials than white applicants, were consistently overlooked. See Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination 2-3 (Nat'l Bureau of Econ. Research, Working Paper No. 9873, 2003) (finding a fifty-percent gap in callback rates between applicants with stereotypically white names and those with stereotypically black names with identical resumes, as well as evidence that higher-quality resumes aid whites more than blacks), available at http://papers.nber.org/papers/w9873.pdf.

n116. See Putnam, supra note 108, at 205 (noting that "mobility undermines civic

engagement and community-based social capital"); David Riesman, The Lonely Crowd: A Study of the Changing American Character, 155-56 (26th prtg. 1973) (discussing how success cuts one off from the group).

n117. See Tamar Lewin, One State Finds Secret to Strong Civic Bonds, N.Y. Times, Aug. 26, 2001, at A1 (noting that, in some communities, individualism may limit civic engagement to those most privileged); see also Guinier & Torres, supra note 28, at 32-107 (describing the ways in which individualism, in the form of colorblindness, undermines the capacity of a racialized group to act collectively to challenge its condition). While race-consciousness can make racial minorities "more ... resilient" and "affirm the individual's ability to cope with the challenges of discrimination," a "political system premised on radical individualism" may destroy that powerful sense of common destiny. See id. at 82, 214. Even Robert Bork criticizes radical individualism as undermining a once-healthy American society. See Robert H. Bork, Slouching Towards Gomorrah 11 (1996) ("Radical individualism ... shatters a society into fragments of isolated individuals and angry groups.").

n118. See Lemann, supra note 17, at 155-56 (explaining that, as a culture of testing evolved, blacks, because of a history of inferior educational opportunities and substandard social conditions, were in a "uniquely bad position" to perform well on such tests); see also infra p. 148 (discussing the way in which the middle and upper classes are able to gain a strong advantage in a system that relies so heavily on testing).

n119. Although individualism purports to combine the ideal of upward mobility with a renouncement of ascribed identity, such a model camouflages the fact that many upper-class Americans born into the top decile of income distribution tend to remain in that decile. See Tom Hertz, Rags, Riches and Race: The Intergenerational Economic Mobility of Black and White Families in the United States, in Unequal Choices: Family Background and Economic Success (Samuel Bowles et al. eds.) (forthcoming) (manuscript at 15-16, on file with the Harvard Law School Library); see also Memorandum from Gavin Kearney, Research Fellow, Institute on Race and Poverty, University of Minnesota Law School, to Lani Guinier (Dec. 29, 1999) (on file with the Harvard Law School Library) (explaining that by 1970, 82% of the wealthiest men in America were born into wealth and only "4% of the richest men came from lower-class origins").

n120. Roy, supra note 8, at 5.

n121. For example, universities are presumed to select and educate future leaders, but as Professor Gerken reminds me, local community leaders rarely attend these schools. Moreover, socioeconomic gaps in college attendance undermine the claim that universities educate all citizens or foster social mobility. Likewise, pedagogical commitments to train future citizens often take a back seat to faculty research interests. Similarly, conversations about diversity remain curiously off-center when students of color are admitted primarily to become part of the "curriculum," teaching socially isolated white students lessons they otherwise would not learn. For university officials who fully support affirmative action, their commitment to diversity often remains marginalized and does not inform their understanding of admissions choices more generally. In addition, although universities play a role in shaping public opinion, they can be properly criticized for creating conversations primarily for elite consumption.

n122. As described by sociologist Ralph H. Turner, contest mobility is "a system in which elite status is the prize in an open contest and is taken by the aspirants' own efforts... . Since the "prize' of successful upward mobility is not in the hands of an established elite to give out, the latter can not determine who shall attain it and who shall not." Ralph H. Turner, Sponsored and Contest Mobility and the School System, 25 Am. Soc. Rev. 855, 856 (1960) (footnote omitted). Contest mobility disapproves of "premature judgments" or of "anything that gives special advantage to those who are ahead at any point in the race." Id. at 858. While I borrow this term from the sociological literature, I use the term in a slightly different way. I use "contest mobility" to describe a system in which individuals gain access to the "spoils" of higher education by outperforming their competitors on a variety of quantifiable measures. Contest mobility is based on the assumptions that "merit" can and should be quantified through educational testing and that candidates should be judged and ordered along numerical metrics. It is the foundation of the modern "testocracy" and also consistent with notions of "radical individualism." See Carnevale & Rose, supra note 2, at 21 ("The common perspective in the merit-based admissions decisions is to judge applicants on the basis of their high school achievements ... . Students are sorted ... on the basis of their ranking in a hierarchy ... regardless of where [their] achievements occurred and regardless of the applicant's socioeconomic background.").

n123. Because the prize is thought to be "earned" rather than inherited, elite status is not accompanied by a sense of noblesse oblige; this is the antithesis of James Conant's anticipated quid pro quo. See Lemann, supra note 17, at 49-50

(describing Conant's view that taxpayers should subsidize education for the talented based on the idea that such talent "will later serve the taxpayer by serving the entire nation" (quoting Conant) (internal quotation marks omitted)); see also infra p. 150.

n124. The assumption in contest mobility is that the university admissions process is based on "the principle of evaluative fairness." Wolff & Wolff, supra note 71, at 5. More specifically, some would argue that the conditioning of admissions decisions on grades and test scores is the hallmark of a system of evaluative fairness because it fosters the concept of personal responsibility that lies at the core of our individualistic ideology. See id. at 50-51 (comparing a hypothetical student who, with little effort, garnered a stellar high school resume, with a minimally accomplished student who, through his effort, nonetheless achieved more than might be expected, and maintaining that a selective college would still more likely accept the former). Richard Banks refers to this concept as the "individualist reward rationale." R. Richard Banks, Meritocratic Values and Racial Outcomes: Defending Class-Based College Admissions, 79 N.C. L. Rev. 1029, 1038-39 (2001).

n125. The focus on grades, test scores, and other indicia of merit ensures that students who have previously demonstrated an ability to take advantage of educational opportunities will continue to do so. See Wolff & Wolff, supra note 71, at 10. Because of the association between personal background and high-stakes testing, the idea of rewarding student effort and drive is not recognized in an admissions process driven by quantitative measures of excellence. See id. at 50-52, 52 n.46 (citing Gratz, 123 S. Ct. at 2428-29) (inferring from the Gratz majority's discussion of Regents of University of California v. Bakke, 438 U.S. 265, 324 (1978) (appendix to the opinion of Powell, J.), an acknowledgement of "the legitimacy of rewarding effort rather than performance," but pointing out that admissions decisions often reward natural endowment rather than academic effort). Interestingly, a recent national survey indicated that the public is almost evenly divided on whether a university should admit a wealthier "A" student from a private high school instead of a working-class "B" student from a public school who also worked during high school to support her family. See Carol M. Swain et al., Life After Bakke Where Whites and Blacks Agree: Public Support for Fairness in Educational Opportunities, 16 Harv. BlackLetter L.J. 147, 167-68 (2000).

n126. U.S. News & World Report is undoubtedly the most influential voice in judging who "wins" and "loses" in the contest for elite status. See Nicholas Thompson, The Best, The Top, The Most, N.Y. Times, Aug. 3, 2003, 4A

(Education Life), at 24 ("If there were a ranking of the rankings based on influence, the winner would undoubtedly be U.S. News's "America's Best Colleges.'").

n127. Peter Sacks writes: Standardized tests serve the perceived economic interests of colleges and universities, particularly their need for prestige, which is often the main asset they have to market to potential "customers." ... Harvard would not be Harvard if those math or verbal SAT scores averaging 750 or so didn't leap from the page at readers of U.S. News and World Report. Peter Sacks, Standardized Minds: The High Price of America's Testing Culture and What We Can Do To Change It 15 (1999).

n128. The rankings illustrate the ways in which the social externalities of the testocracy are self-perpetuating. For example, one significant factor in determining a college's rank is the institution's twenty-fifth to seventy-fifth percentile range of scores on standardized tests. See America's Best Colleges, supra note 82, at 82-83. Thus, the extent to which certain classes of people are disadvantaged on standardized tests strongly correlates with the extent to which these same classes are, at least in the absence of some type of corrective program like affirmative action, shut out of the most elite institutions.

n129. See Thompson, supra note 126, at 24; see also Randall Collins, The Credential Society: An Historical Sociology of Education and Stratification 195 (1979) (characterizing as "credential capitalism" the attitude that "one should get as much education as possible in order to cash in on as much career advancement as possible" and noting that this has been one of the "traditionally dominant ideologies about American education"); David A. Garvin, The Economics of University Behavior 15 (1980) ("Institutions can trade off increased prestige - which is expensive and involves higher costs - for higher tuition, while still attracting students in sufficient numbers and of acceptable quality.").

n130. See Thompson, supra note 126, at 24 (citing Richard Fuller, former admissions dean of Hamilton College, who described the influence of rankings on Hamilton's recent adoption of an early admissions program and decision to make

the submission of SAT scores optional).

n131. The inflexible standards of college rankings render them unable to capture the nuances of an institution's true educational experience. According to Lee Bollinger, President of Columbia University and former President of the University of Michigan, "rankings give a false sense of the world and an inauthentic view of what a college education really is." Id. (quoting Bollinger) (internal quotation marks omitted).

n132. See William D. Adams, The Status Game, L.A. Times, Apr. 13, 2003, at M6 ("Complicity [of colleges in the ratings game] is a disservice to our students and prospective students, and it helps distort various public policy issues affecting higher education."). More and more, universities are attributing tremendous value to competitive positioning; universities thus increasingly resemble meritocratic marketplaces. See Sacks, supra note 127, at 15 (affirming that colleges and universities highly value rankings as a means to sell their main asset, prestige, to applicant customers); Roger L. Geiger, The Competition for High-Ability Students: Universities in a Key Marketplace, in The Future of the City of Intellect: The Changing American University 82, 82 (Steven Brint ed., 2002) ("Competition and markets have long been present in the decentralized American system of higher education. But in all likelihood American colleges and universities have become more market-driven in the last two decades."); James Engell & Anthony Dangerfield, The Market Model University: Humanities in the Age of Money, Harv. Mag., May-June 1998, at 49 (bemoaning, in a critique of university "divestment" in the humanities, how market ethos now dominates the organization of universities as they compete to attract students). For a more formal economic analysis of the "meritocratic marketplace," see Garvin, supra note 129, at 15.

n133. The irresistible desire to remain "elite" requires continued reliance on supposedly "objective" measures of merit. This reliance, in turn, provides the external validation required by the measures themselves to justify their existence in spite of whatever disparate impact they may have on the basis of class, race, gender, or any other category. Interestingly, the University of California at Berkeley, the only public institution in U.S. News & World Report's top twenty national universities, see America's Best Colleges, supra note 82, at 82-83, is also the lone institution on that list whose President has directly challenged the long-sacred reliance by elite institutions on standardized test scores. Richard Atkinson, President of the University of California, characterized the dilemma that elite public institutions face as a question of how "to honor both the ideal of merit ... and the ideal of broad educational opportunity." Peter Schrag, War on the SAT, Am.

Prospect, May 6, 2002, at 24 (quoting Atkinson) (internal quotation marks omitted).

n134. See William Julius Wilson, The Bridge over the Racial Divide: Rising Inequality and Coalition Politics 97 (1999) ("The standard or conventional measures of performance are not sensitive to the cumulative effects of race or ethnicity. By this I mean having one's life choices restricted by race, regardless of class, because of the effects of living in segregated neighborhoods ... , because of the quality of de facto segregated schooling, and because of nurturing by parents whose experiences have also been shaped and limited by race ... ."); Banks, supra note 124, at 1046 ("Achievement is undeniably linked to the very accidents of birth thought to be displaced by the implementation of equal opportunity.").

n135. See Brief for the National Center for Fair & Open Testing (Fairtest) as Amicus Curiae Supporting Respondents at 4, Grutter (No. 02-241) (stating that "the nature of test construction ... introduces both racial and gender biases that adversely affect students of color and women"); Wilson, supra note 134, at 98 ("Children's test scores are affected not only by the SES of their parents, but also by the SES of their grandparents. This means that it could take several generations before adjustments in socioeconomic inequality produce their full benefits."); William C. Kidder & Jay Rosner, How the SAT Creates "Built-in Headwinds": An Educational and Legal Analysis of Disparate Impact, 43 Santa Clara L. Rev. 131, 133 (2002) (claiming that the "process of selecting and developing SAT questions," while seemingly "facially-neutral and non-discriminatory, ... unfairly exacerbates the test's already significant disparate impact on African Americans and Chicano test-takers"); Sturm & Guinier, supra note 79, at 982 ("Conventional selection methods advantage candidates from higher socio-economic backgrounds and disproportionately screen out women and people of color, as well as those in lower-income brackets."); Michael B<?extend ascii 233>rub<?extend ascii 233>, Testing Handicaps, N.Y. Times, Sept. 21, 2003, 6 (Magazine), at 18 (noting the rural-suburban test score gap and the staggering effects of parental education on students' test scores); Diana Jean Schemo, SAT Math Scores Are Highest in 35 Years, N.Y. Times, Aug. 27, 2003, at A21 (stating that, for the 2003 SAT, "the scores of students from rural areas and large cities continued to lag, and women continued to lag behind men, particularly in math"); see also Ellen Barry, Broader, Varied SAT Advocated, Boston Globe, Aug. 10, 2002, at A1 ("Over recent years, the SAT has been under fire from critics who charge that it reflects only a narrow slice of human intelligence and persistently favors white applicants over minorities."); Sam Dillon, New Federal Law May Leave Many Rural Teachers Behind, N.Y. Times, June 23, 2003, at A1 (discussing geographic inequalities confronting rural teachers).

n136. Sturm & Guinier, supra note 79, at 988 (noting that "the correlation between family income and SAT is nearly four times larger than the incremental improvement in prediction offered by the SAT used in conjunction with high school grades"); see AALS Brief, supra note 5, at 9 ("While grade-point averages and test scores may play a significant role in the admissions process, they do not infallibly predict law school performance, let alone career contributions."); Lani Guinier et al., Becoming Gentlemen: Women, Law School, and Institutional Change 35 (1997) ("Quantitative entry-level credentials the law school employs to determine admissions, particularly the LSAT, explain very little about [students'] performance once they have entered law school."); James W. Loewen, Social Science in the Courtroom: Statistical Techniques and Research Methods for Winning Class-Action Suits 173 (1982) (stating that, although rural in-state applicants scored 100 points lower on the SAT than suburban out-of-state applicants to the University of Vermont, in-state residents "closed the gap or even edged on top" of their suburban peers by their senior year); Richard O. Lempert et al., Michigan's Minority Graduates in Practice: The River Runs Through Law School, 25 Law & Soc. Inquiry 395, 490 (2000) ("LSAT and UGPA, which in many law schools are the most prominent admissions screens, have almost nothing to do with measures of achievement after law school ... ."); Sturm & Guinier, supra note 79, at 971 ("A recent study of the University of Pennsylvania Law School found that LSAT scores were weak predictors of performance in law school. LSAT explained 21% of the difference in third year grades. For first-and second-year students, it explained even less: 14% and 15% respectively."); id. (noting that an individual's height provides a stronger basis for predicting his or her weight than an individual's SAT score allows prediction of his or her first-year grades (citing David Owen, None of the Above: Behind the Myth of Scholastic Aptitude 207 (1985))); see also Jack Greenberg, Affirmative Action in Higher Education: Confronting the Condition and Theory, 43 B.C. L. Rev. 521, 533 (2002) (noting that, for two years running, the top student in the graduating class at Columbia Law School was admitted off the wait list and that, in another year, the editor-in-chief of the Columbia Law Review was admitted from the wait list). That the LSAT is at best a modest predictor of grades in law school is evident from a comparison with the much higher correlation required in voting cases to demonstrate a relationship between the race of voters and the candidates for whom they vote. See, e.g., Loewen, supra, at 187-94 (describing the use of correlations in voting rights litigation and noting that an "important and significant" demonstration of white bloc voting is required in order to prevail on a vote dilution claim); James W. Loewen & Bernard Grofman, Comment: Recent Developments in Methods Used in Vote Dilution Litigation, 21 Urb. Law. 589, 589-90 (1989) (clarifying methodological issues pertaining to analysis of voting patterns). In voting cases, correlations of 0.8 or 0.9 are often needed to prevail. By contrast, the correlation between LSAT scores and first-year grades (between 0.3 and 0.4) is "rather dismal" and may even be "largely artificial." Loewen, supra, at 173.

n137. These issues are slowly starting to be addressed. See Barry, supra note 135 (describing the development of new tests that reduce racial disparities by including multiple measures of intelligence, including creative intelligence and judgment). Some institutions have in fact stopped using the SAT, mostly due to concerns about the test's class biases, but also because it fails to predict student performance and discourages talented applicants from applying. See Editorial, A Healthy SAT Debate, N.Y. Times, Mar. 12, 2001, at A14 (reporting that "several quality liberal-arts institutions - including Bowdoin, Bard, Connecticut College, Bates and, most recently, Mount Holyoke - no longer require SAT scores"). Race, however, tends to remain the flashpoint in the conversation about aptitude testing.

n138. See Brooks, supra note 58, at 29-31 (stating that, although the traditional WASP elite has been eliminated through meritocracy, a new, less service-minded "educated elite" has sprung up to take its place). Peter Sacks writes: We have settled on a system that defines merit in large part as the potential to achieve according to test results. It turns out that the lion's share of the "potential" in our society goes to those with well-to-do, highly educated parents. The aristocracy also used to perpetuate itself on the basis of birth and parentage. But the nation's elites now perpetuate their class privilege with rules of their own making that have persisted for several decades, rules legitimated and protected by a pseudo-scientific objectivity. Sacks, supra note 127, at 15.

n139. Carnevale & Rose, supra note 2, at 11.

n140. Brooks, supra note 58, at 29.

n141. See, e.g., Barry, supra note 135 ("Sixty years [after James Conant's admissions revolution], the SAT is an enormous business for the College Board and a focal point, even an obsession, in the lives of college-bound teenagers. For many college administrators, though, it symbolizes the opposite of Conant's egalitarian vision, favoring privileged white students who spend years preparing

for it."); Jane Gross, Paying for a Disability Diagnosis To Gain Time on College Boards, N.Y. Times, Sept. 26, 2002, at A1.

n142. See, e.g., Malcolm Gladwell, Examined Life: What Stanley H. Kaplan Taught Us About the SAT, New Yorker, Dec. 17, 2001, at 86, 88 (characterizing the SAT as "eminently coachable"); Diane Sierpina, College Admissions, the Consultant's Way, N.Y. Times, Oct. 11, 1998, 14, at 1 ("In addition to the full-service consultants, parents can find specialists to help with financial aid applications, college essay writing and career planning.").

n143. See supra note 125. Once admitted, however, those with lower test scores often outperform their higher-scoring counterparts. See supra note 136; infra note 145.

n144. To the extent that quantitative measures of performance predict performance in college or law school (as opposed to post-graduation work), they do so in terms of "bands" rather than individual test scores. See Carnevale & Rose, supra note 2, at 12 (reporting scores in bands as predictors of graduation rates); Conversation with Anthony Carnevale, in Cambridge, Mass. (July 16, 2003); E-mail from Mahzarin Banajhi, Professor of Psychology, Harvard University, to Lani Guinier (July 9, 2003, 18:36:36 EST) (on file with the Harvard Law School Library) (noting that, although there may be a correlation between test results and behavior, the correlation is usually quite low, and it "cannot tell you about a particular person - the best you can say is that the higher somebody scores on a test the more likely they will to do x or y, and that more likely could be a teeny weeny more likely"). Furthermore, the predictiveness of those bands is modest at best. See supra note 136.

n145. Lempert et al., supra note 136. The authors compared the career paths of Michigan Law School graduates over a thirty-year period. They concluded that "hard" admissions criteria such as test scores and grades are no better predictors of success after law school than are "soft," more holistic selection criteria - whether success is measured by earned income, career satisfaction, or service contributions. See id. at 401, 468-69.

n146. See id. at 468-69; see also id. at 401 ("Among those Michigan graduates

who enter the private practice of law, minority alumni tend to do more pro bono work, sit on the boards of more community organizations, and do more mentoring of younger attorneys than white alumni do.").

n147. AALS Brief, supra note 5, at 9 (citing the Michigan Law School study).

n148. See id. (concluding from the Michigan Law School study that "among the highly qualified applicants who are chosen for admission to selective law schools, numerical indicators fail to capture many relevant qualities and skills"). A panoply of reasons may explain this heightened civic-mindedness among black and Latino students. First, lower performance on high-stakes exams may reinforce stereotypes about the academic abilities of black and Latino students, driving them to compete in alternative domains, such as extracurricular activities or public service. See Claude Steele, Presentation at Harvard Law School Faculty Workshop (July 28, 2003). These pursuits may influence later professional and public-spirited choices, but may also deprive the academic community of the full benefit of minority students' presence in the classroom. Alternatively, students of color may be more civic-minded because race acts as a proxy for what Michael Dawson terms "linked fate," the sense that one's "own self-interests are linked to the interests of the race." Michael C. Dawson, Behind the Mule: Race and Class in African-American Politics 77 (1994); see also Guinier & Torres, supra note 28, at 74-82.

n149. See, e.g., Bowen & Bok, supra note 96, at 165 ("Test scores and college grades made very little difference [to civic participation rates]."); id. at 168 (noting that African Americans "were much more likely than their white classmates to have taken on leadership positions in virtually every type of civic endeavor"); see also Barry, supra note 135 ("There are people who are really good at traditional tests, who may get 800s and then when they get out of school, that's the end of the story for them. They don't get along with people. They don't persuade people to listen to them." (quoting Robert Sternberg, President of the American Psychological Association) (internal quotation marks omitted)).

n150. See Brooks, supra note 58, at 24-26.

n151. See Swain et al., supra note 125, at 173-74 (citing study by James M. Glaser).

n152. See Wolff & Wolff, supra note 71, at 3-4.

n153. See Liu, supra note 37, at 1046-50 (concluding, based on data provided by Bowen and Bok, that a white applicant's chance of admission to college decreases by less than two percent if race-conscious selection criteria are applied).

n154. See supra note 106.

n155. See infra Part IV (discussing the ways in which a point system is problematic in the context of contest mobility).

n156. According to the sociologist Ralph H. Turner, "under sponsored mobility elite recruits are chosen by the established elite or their agents, and elite status is given on the basis of some criterion of supposed merit and cannot be taken by any amount of effort or strategy." Turner, supra note 122, at 856. He writes: "Sponsored mobility ... rejects the pattern of the contest and favors a controlled selection process. In this process the elite or their agents, deemed to be best qualified to judge merit, choose individuals for elite status who have the appropriate qualities." Id. at 857. I am liberally adapting the term "sponsored mobility" and reinterpreting it without being tied to its sociological usage. I choose to borrow the term "sponsored mobility" rather than "discretionary mobility," although the two ideas overlap. The term "sponsored mobility" captures some of the elements of contest mobility and also seems to depict the results of decisionmaking as less "random" than "discretionary mobility" does. The words "sponsored" and "sponsorship" also carry with them the sense that decisionmakers have a "stake" in their choices - and that the process is, to a certain extent, characterized by decisionmakers "sponsoring" those students who look like or seem like themselves, even if they are unaware of this self-perpetuating bias. See infra note 162 and accompanying text. Additionally, the word "sponsorship" carries with it the values of meritocracy in a way that the word "discretionary" does not. Many admissions officers actually believe that they are giving "deserving" breakthrough applicants their "big chance to make it" in this contest. However, the term "discretionary mobility" may seem less pejorative and thus more appropriate as a way to describe the well-intentioned deployment of subjective criteria. I am

indebted to Susan Sturm, Samuel Spital, and Sarah Boonin for helping me think through the implications of this choice.

n157. The contrast between contest mobility and sponsored mobility parallels the contrast between "statistical prediction" and "clinical prediction." Barbara D. Underwood, Law and the Crystal Ball: Predicting Behavior with Statistical Inference and Individualized Judgment, 88 Yale L.J. 1408, 1420 (1979). Statistical prediction, like contest mobility, "evaluates each applicant according to a predetermined rule for counting and weighting key characteristics [that] are specified in advance, [as] is the rule for combining them." Id. (emphasis added). Clinical prediction, like sponsored mobility, "relies on the subjective judgment of experienced decisionmakers, who evaluate each applicant on an individual basis in light of the experience accumulated by the decisionmaker and his profession." Id. (emphasis added). Underwood argues that the benefit of the clinical method is that it "protects most effectively against failure to consider unanticipated individual differences," while the benefit of the statistical method is that it "protects most effectively against the implicit use of illegal or otherwise unacceptable criteria for decision." Id. at 1432.

n158. Admissions officers may have originally used race as one of these soft variables to compensate for past discrimination, but the Court has since disallowed the pursuit of this purpose in the educational arena except to remedy specific instances of formal and intentional discrimination. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274 (1986) (plurality opinion) (requiring a showing of prior discrimination to use a limited racial classification as a remedy); cf. Milliken v. Bradley, 418 U.S. 717, 744-45 (1974) (holding that a school desegregation plan must be limited to districts with an actual history of racial discrimination). With that avenue of analysis foreclosed, a new justification soon emerged: the need to compensate for the known racial disparity in tests.

n159. See Reshma Memon Yaqub, Getting Inside the Ivy Gates, Worth, Sept. 2002, at 94, 98; see also Jane Gross, At Last, Colleges Answer, and New Questions Arise, N.Y. Times (New Eng. ed.), May 7, 2002, at A1 (describing "due diligence calls," confidential telephone conversations between private high school guidance counselors and admissions officials at unnamed Ivy League institutions to advocate for a limited number of applicants). For example, a younger colleague told me that a committee at his private high school had convened to decide whom they would sponsor for admission to a certain elite college. Once they picked him and five other students, all six were admitted to the college.

n160. David B. Wilkins, The Context of Race, Introduction to K. Anthony Appiah & Amy Gutmann, Color Conscious: The Political Morality of Race 3, 17 & n.3 (1996) (citing Neil Rudenstine, The President's Report 1993-1995 (1996)).

n161. Id. at 17 (arguing that "a university system that failed to educate a fair percentage of students from any significant social group in society ... would have defaulted on its primary duty to ensure the preservation of a stable polity").

n162. Sponsored mobility is vulnerable to the intergroup biases of elite decisionmakers. Research demonstrates that those in a group favor other group members in allocating rewards and evaluating performance, even if the groups are trivially assigned; that the strength of these biases is positively correlated with the salience of group distinctions; and that people are unaware of these biases. See Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative Action, 86 Cal. L. Rev. 1251, 1274, 1285 (1998) [hereinafter Krieger, Perestroika]. In fact, social science studies show that ingroup bias is so strong that people may prefer ingroup members even when the group identities are meaningless. See Michael Billig & Henri Tajfel, Social Categorization and Similarity in Intergroup Behaviour, 3 Eur. J. Soc. Psychol. 27, 27 (1973). Moreover, individual decisionmakers engage in stereotyping unknowingly and at every stage in the decisionmaking process. See Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1211 (1995) [hereinafter Krieger, Content] (describing stereotypes as a subset of the "vast array" of structures that comprise human cognition and concluding that discrimination therefore occurs not impulsively but as the result of an accumulation of subtle distortions in perceiving objective data).

n163. As long as sponsored mobility separates the pre-admission inputs from the post-graduation outputs and the ongoing considerations of institutional mission, it is easy to see why the preference for hard variables reigns. The hard variables are more efficient, easier to administer, and promote a sense of objective fairness. In addition, to the extent that sponsored mobility justifies its departure from the hard numbers using the language of diversity rather than merit, its use of soft variables helps set the stage for backlash and stigma, a problem to which I soon return in conjunction with a discussion of Justice Thomas's dissenting opinion in Grutter. See infra pp. 181-87. But cf. infra note 302.

n164. See supra pp. 144-46; cf. Jacques Steinberg, College Rating by U.S. News Drops Factor in Admissions, N.Y. Times, July 10, 2003, at A14 (discussing how U.S. News & World Report rankings prompt colleges to encourage binding early admission applications, which increase colleges' yield ratios).

n165. See Daniel Golden, For Supreme Court, Affirmative Action Isn't Just Academic, Wall St. J., May 14, 2003, at A1 (describing the legacy status of five Supreme Court justices or their children); see also Jacques Steinberg, Of Sheepskins and Greenbacks, N.Y. Times, Feb. 13, 2003, at A24 (discussing the controversy over admissions preferences for the wealthy).

n166. Some students' decisions to "check the boxes" in order to gain admission under affirmative action is purely instrumental in that a small but growing number of these beneficiaries privately express disdain for the group with which they have temporarily identified, a distancing that they may believe is necessary to achieve as individuals. As one black admissions officer at an Ivy League institution told me, "blacks have supported affirmative action based on DuBois's concept of a talented tenth. Those who would gain access to elite institutions would then lead the race. Some of those being admitted pursuant to affirmative action express outright hostility for the race they are presumably to lead." Another admissions officer said that when students check multiple boxes, the admissions committee is instructed to "count the group we need currently." Still another admissions officer said that schools compete for a small group of high-scoring black students; as a result, the number of black students actually enrolled (as opposed to admitted) at some elite schools has actually gone down over the last ten years. At one Ivy League school, the number of African-American students, which reached a high of 7.8% in 1986, dropped 50% in the last part of the 1990s. In previous decades, admissions officers took greater risks on urban public school graduates; now they do not even recruit in many urban areas because "the guidance counselors are too difficult." Other admissions personnel said that, for at least one Ivy League institution, less than ten percent of students admitted as "Latinos" have been in the United States for more than ten years, and less than thirty percent of those admitted as "black" have four African-American grandparents who were born in the United States. The issue is not the admission of immigrants, who have much to contribute. The issue is their emergence as the dominant affirmative action prototype, compared to indigenous African Americans or Latinos. These recent developments at selective institutions yield to the fundamental contradiction of sponsored mobility: although sponsored mobility claims to adopt a more robust view of merit, its commitment to elite selection ultimately reaffirms the narrow, test-centric measures of contest mobility, which prefer, for example, those with highly educated parents. Interviews with

Admissions Officers of Ivy League and Other Elite Colleges (Jan. 31, 2000; Apr. 21, 2000; Jan. 16, 2003; Jan. 30, 2003; Apr. 2, 2003; June 3, 2003; July 9, 2003; Sept. 5, 2003); Interview with Beverly Daniel Tatum, President of Spelman College, in Cambridge, Mass. (Aug. 30, 2003); cf. Charles R. Lawrence III, Two Views of the River: A Critique of the Liberal Defense of Affirmative Action, 101 Colum. L. Rev. 928, 962 (2001) ("I worry that I may be attracted to the liberal defense [of sponsored mobility] because I share in the privilege it seeks to preserve. I am the ideal diversity candidate because I am different, but not too different from my white colleagues. I am among those black and brown folk who are best suited to the task of integrating the academy when the university's primary goal is the education and legitimization of an intellectual and professional elite."); Lynette Clemetson, For Schooling, a Reverse Emigration to Africa, N.Y. Times, Sept. 4, 2003, at A1 (describing boarding school in Africa as a popular option for children of immigrants from certain West African countries, and noting that the parents remain in the United States and bring their children back to take the SAT and apply to American colleges).

n167. See Claude M. Steele, Thin Ice: "Stereotype Threat" and Black College Students, Atlantic Monthly, Aug. 1999, at 44, 46 (defining "stereotype threat" as "the threat of being viewed through the lens of a negative stereotype, or the fear of doing something that would inadvertently confirm that stereotype"); id. at 46-54 (finding that stereotype threat adversely affects black students' performance on standardized tests). At a Harvard Law School faculty workshop, Claude Steele stated that first-generation immigrants from the West Indies and Africa are less vulnerable to stereotype threat than are American-born blacks. Claude Steele, Presentation at Harvard Law School Faculty Workshop (July 28, 2003). According to Steele, black immigrants are often able to deflect anxiety about group identity because their accents and origin stories enable them to distance themselves from the "target" population. Id. However, this ability to distance themselves from the target group also potentially compromises their willingness to identify with the conditions affecting the vast majority of American-born blacks. See supra note 166. Nevertheless, as they come to understand the way race functions in the United States, many immigrants do make significant contributions to the larger community.

n168. See Mary C. Waters, Explaining the Comfort Factor: West Indian Immigrants Confront American Race Relations, in The Cultural Territories of Race: Black and White Boundaries 63 (Mich<?extend ascii 232>le Lamont ed., 1999); see also Immigration and Nationality Act Amendments of 1965, Pub. L. No. 89-236, 79 Stat. 911, 913 (codified as amended in scattered sections of 8 U.S.C.) (inviting people with special skills to enter the country); B<?extend ascii 233>rub<?extend ascii 233>, supra note 135 (noting the extraordinary influence of

parental education on test scores, often raising test scores more than 200 points).

n169. My father was a voluntary immigrant from Jamaica; he applied and was accepted to Harvard College in 1929. He later returned to Harvard in 1969 as the first Chair of the Afro-American Studies Department.

n170. There are many plausible reasons for the predominance of international students in university admissions that should be explored. Their admissions advantage may in fact be ancillary to the preoccupation with rankings: it may be that cash-hungry universities tend to admit more international students in order to benefit from their full tuition, since universities usually do not give financial aid to international students.

n171. See supra note 90; cf. Brief Amicus Curiae of the American Psychological Association in Support of Respondents at 4-11, Grutter (No. 02-241), Gratz (No. 02-516), (describing aversive racism and unconscious bias), available at http://www.umich.edu/urel/admissions/legal/gru amicus-ussc/um/APA-both.pdf; Mahzarin R. Banaji et al., The Social Unconscious, in Black-well Handbook of Social Psychology: Intraindividual Processes 134, 145 (Abraham Tesser & Norbert Schwarz eds., 2001); Mahzarin R. Banaji & Anthony G. Greenwald, Implicit Gender Stereotyping in Judgments of Fame, 68 J. Personality & Soc. Psychol. 181, 197 (1995); Anthony G. Greenwald et al., Measuring Individual Differences in Implicit Cognition: The Implicit Association Test, 74 J. Personality & Soc. Psychol. 1464, 1478 (1998); Anthony P. Carnevale, Comments at Harvard University Civil Rights Project Conference (July 16, 2003).

n172. Cf. Lemann, supra note 17, at 48-49 ("The abler graduates [who] would rise to high positions ... should not, however, be able to confer special advantages upon their children; America could use the powers of government to reorder the haves and have-nots every generation to give flux to our social order." (quoting James B. Conant, Wanted: American Radicals, Atlantic Monthly, May 1943, at 41, 44) (internal quotation marks omitted)).

n173. The transparency problem, which threatens both the honesty and the legitimacy of sponsored mobility, was recognized long ago by Barbara Underwood as a central problem with "clinical," as opposed to "statistical," methods of

selection. Compare Underwood, supra note 157, at 1431 (warning that clinical decisionmakers "may resist efforts over time to make explicit their criteria for decision" and that "sometimes clinical judges refuse to surrender their discretionary power"), with id. at 1429-30 ("A statistical method makes explicit and visible the precise criteria by which applicants are selected or rejected ... . It also provides the opportunity for public discourse about the desirability of the criteria that are used. Both features of a statistical system tend to foster public confidence in the legitimacy of the system." (footnote omitted)).

n174. Cf. Brooks, supra note 58, at 53 ("Marx warned that "the more a ruling class is able to assimilate the most prominent men [or women] of the dominated classes, the more stable and dangerous its rule.' ... The meritocratic ... class ... is flexible and amorphous enough to co-opt that which it does not already command." (first alteration in original) (quoting 3 Karl Marx, Capital 706 (Ernest Untermann trans., Frederick Engels ed., Charles H. Kerr & Co. 1909) (1894))).

n175. However, sponsored mobility may convey a sense of duty to its beneficiaries comparable to W.E.B. DuBois's notion of the "talented tenth." See W.E.B. DuBois, The Talented Tenth, in The Negro Problem 33, 45 (Ulysses Lee ed., 1969) (arguing that the advancement of a talented, black avant-garde would convince whites that blacks were worthy of their help, and that this "talented tenth" would work hard to advance the race because of their connection to the black community). For example, the Michigan study found that blacks and Latinos have higher rates of public service than the (so-called) meritocrats, see supra notes 145-148 and accompanying text, and Brooks concludes that the old WASP guard was more service-oriented than the current products of contest mobility, see supra notes 74, 138. It may well be the case that the higher rates of public service among blacks and Latinos is "a racial variant of noblesse oblige" - a surprisingly effective and highly advantageous byproduct of sponsored mobility. I thank Garrett Moritz for this observation and terminology. This "racial variant of noblesse oblige" may also turn the stigma argument on its head, to the extent stigma creates the "pangs of noblesse oblige." The desire to give back to the community may be the unexplored consequence of being a member of a hereditary elite or a beneficiary of affirmative action. In a sponsored mobility world, admission to higher education may serve as a visible vote of confidence in one's future potential that may inspire little choice but to respond (accountably) to and embrace the public-minded ideals of the institution. I thank Danielle Gray for this observation. But see supra note 166 (describing the reluctance of some beneficiaries of sponsored mobility to identify with the group in whose name or on whose behalf they are admitted).

n176. In other words, sponsored mobility purports to use race holistically to open up a richer view of merit. Yet some institutions appear to use race categorically, in the name of sponsored mobility, to reproduce "skinny merit." Cf. Rosen, supra note 87 (supporting affirmative action as a way to maintain "high standards" - a refrain that echoes throughout some of the dissenting opinions in Grutter).

n177. See DuBois, supra note 175.

n178. Lemann, supra note 17, at 77; see also supra p. 150. But cf. supra note 166 (noting that some beneficiaries of affirmative action do not identify with their racial groups or their larger communities).

n179. I adapt the term "structural mobility" from the sociological literature to refer to mobility caused by changes in structural conditions. See David L. Featherman et al., Assumptions of Mobility Research in the U.S.: The Case of Occupational Status, 4 Soc. Sci. Res. 329, 357 (1975); Hout, supra note 67, at 1359-60; cf. Michael E. Sobel, Structural Mobility, Circulation Mobility and the Analysis of Occupational Mobility: A Conceptual Mismatch, 48 Am. Soc. Rev. 721, 721 (1983) (describing a more technical usage of the term).

n180. The term "community" is defined here in the context of the institution's public role. A more precise definition is beyond the scope of this Comment. Community, for example, might refer to the relationship between the institution and those who subsidize it, whether alumni, government actors, charitable foundations, or taxpayers. Community might also include the educational community of teachers, parents, students, and policymakers - all of whose efforts affect the preparedness of citizens for higher education. See infra note 391.

n181. I use the term "structural mobility" to describe programs such as the GI Bill, which radically increased access to college among new groups of people. See infra notes 191-192.

n182. Cf. Hout, supra note 67, at 1392 (arguing that "increasing the proportion of workers with college degrees benefits society by making occupational opportunity

independent of social origins for a large percentage of the work force"); infra note 192.

n183. See Glenn C. Loury, Admissions (and Denials) of Responsibility, N.Y. Times, Mar. 29, 2003, at A11 ("Taking race into account, in university admissions or in other aspects of life, does not require abandoning a commitment to individualism. One can hold that race is irrelevant to a person's moral worth - that people, not groups, are the bearers of rights - and still affirm that to deal effectively with individuals, we must consider the categories of thought [and experience] in which they understand themselves.").

n184. See Penda D. Hair, Louder Than Words: Lawyers, Communities and the Struggle for Justice 35 (2001) (noting that advocates of sponsored mobility recognize that "educating students from all segments of society" is critical in a democracy because it "incorporates the potential contributions a student will make to his or her classmates, to the educational environment and to society at large").

n185. See id. (describing a form of structural mobility in which admissions decisions are framed "in terms of ... a student's success in overcoming educational obstacles and the mission of public universities to produce leaders from all segments of the State's population"); see also Wilson, supra note 134, at 102; cf. Theda Skocpol, The Missing Middle: Working Families and the Future of American Social Policy 25-43 (2000) (discussing the numerous social programs throughout American history that rewarded people for their prior public service, or prepared them to contribute in the future).

n186. See Editorial, The Diversity Project in Texas, N.Y. Times, Nov. 27, 1999, at A14 ("University administrators who once thought themselves above the public education debate have realized that, to a great extent, the fates of the public schools and the universities are closely intertwined."); see also Lee, supra note 10, at A13 (attributing to Anthony Marx, President of Amherst College, a concern that "it has been close to a century since colleges and universities have provided the necessary leadership to address the failures of public education, a failure that tends to increase economic and social inequality"); supra note 180 (identifying the plausible uses of the term "community"); infra notes 332-333.

n187. More specifically, structural mobility develops its principles for allocating educational opportunity in conjunction with input from many relevant institutional communities. As a result, those principles are more transparent and legitimate in democratic and functional terms than if they were made exclusively by admissions officers or statisticians at testing services. Cf. Underwood, supra note 157, at 1420. Barbara Underwood, in her examination of clinical and statistical methods of selection, does not contemplate a third, more structural, approach to selection. Instead, she sees a choice between two "competing" systems of prediction. Id. She writes: Statistical method and easily scored factors are most appealing if wisdom is thought to be concentrated in a few wise rulemakers ... while the everyday decisionmakers are thought to have inadequacies that require control by rule. Discretionary decisionmaking is most appealing if wisdom is thought to reside in the people who confront applicants and make decisions, rather than in the policymakers who make the rules. Id. at 1448. However, if one has reason to doubt the abilities of both sets of decisionmakers, then a more democratic, participatory, and structural methodology might be appropriate. See infra Part IV (discussing the value of racial literacy as a substantive and process value, and noting how diverse groups of decisionmakers help promote democratic legitimacy and the creative process of problem solving).

n188. The term "stakeholder" does not refer to shareholders or owners, but to members of the educational institution's internal and external constituencies - people who will be committed to the institution's long-term future. Stakeholders are people with significant emotional and political investments in the institution's success, including its ability to fulfill its public responsibilities.

n189. See infra Part IV (discussing the process values associated with a democratic deliberative project, including racial literacy, attention to social context, and opportunities for continuous information gathering and sharing). Structural mobility is committed to a broad definition of opportunity, which is most likely to be sustainable if implemented through a participatory process that involves the relevant stakeholders, including representatives of groups who have traditionally been excluded from the institution. When the relevant stakeholders participate in the decisionmaking process, they are more likely to be committed to the outcome and to believe it is fair, even if they disagree with it. While the process is participatory, inclusive, and deliberative, it is not open to all comers. It is democratic and deliberative; it is not an election in which everyone has a vote.

n190. Because even selective private institutions play a public role and enjoy public subsidies, they may also be expected to pay some attention to the standards of structural mobility. See supra note 88. Because these standards challenge certain principles of selectivity and elitism within the premier public and private institutions of higher education, structural mobility can become even more controversial than sponsored mobility. See infra note 192. Although sponsored mobility uses explicitly race-conscious criteria, it allows elite decisionmakers to hand-pick students in a manner that is consistent with their interest in maintaining their rankings. Cf. Rosen, supra note 87 (arguing that if the Supreme Court were to force universities to adopt colorblind admissions standards, the universities would simply use "softer proxies for racial diversity" and might become less selective as a result).

n191. Servicemen's Readjustment Act of 1944, Pub. L. No. 78-346, 58 Stat. 284 (codified at 38 U.S.C. 3011).

n192. Two legislative acts, almost a century apart, dramatically restructured higher education in this country. The Morrill Act of 1862 gave federal land to the states to establish public colleges. 12 Stat. 503 (codified at 7 U.S.C. 301). The 1944 GI Bill "changed the face of America." Monica L. Haynes, GI Bill Brought College to Regular Joes, Pitt. Post-Gazette, May 29, 2003, at C2 (quoting Jamie O'Boyle, senior analyst for the Center for Cultural Studies and Analysis) (internal quotation mark omitted); see also Lemann, supra note 17, at 58-59 (describing the "rich menu" of benefits under the GI Bill, and characterizing the measure as a "spectacular success" in lifting millions into the middle class). Interestingly, at the time the GI Bill was under consideration, universities and colleges did not support it because "they thought bringing an influx of regular people would destroy the world of higher education as we know it." Haynes, supra (quoting O'Boyle) (internal quotation marks omitted); see also Lemann, supra note 17, at 58-59 (noting that James Conant, then-President of Harvard University, opposed the GI Bill because he thought it lacked a way for colleges to weed out underachievers). Contrary to these concerns, however, veterans who went to college under the GI Bill turned out to be "the best students ever." Interview with Jack Faris, Vice President, University of Washington, in Seattle, Wash. (Sept. 19, 2003) (quoting the conclusions of Jon Bridgman, Professor of History, University of Washington). By restructuring opportunity on a large scale, these programs benefited society as a whole, not just the individuals most directly affected. See Haynes, supra ("The GI Bill provided seed money for the emerging modern middle class - a numerically dominant working population with a host of advantages formerly reserved solely

for the elite: general education, knowledge of other options and the freedom to pursue them, leisure time, discretionary income and geographic and class mobility." (quoting O'Boyle)); Richard J. Maloy, A Law That Changed America, Wash. Post, June 24, 1994, at A27 (reporting from Veterans Administration statistics that the GI Bill produced 456,000 engineers, 180,000 doctors and dentists, 360,000 schoolteachers, 156,000 scientists, and 107,000 lawyers); id. ("As they took their places in society, these college-trained veterans powered the remarkable postwar economic expansion of the United States, which continued unabated for more than a generation."); Tom Teepen, Educational Proposal Shows We're Finally Learning Our Lesson, Tampa Trib., Feb. 10, 1997, at 9 (noting that about half of all eligible veterans enrolled in college following World War II, producing "awesome" results and returning six times the cost of the program in enhanced lifetime earnings); see also Maloy, supra (describing economist Peter Drucker's conclusion that the enthusiastic response to the GI Bill marked a shift to a knowledge economy, benefiting individuals and the society as a whole).

n193. Act effective Sept. 1, 1997, ch. 155, 1997 Tex. Gen. Laws 1 (codified at Tex. Educ. Code Ann. 51.803 (Vernon Supp. 2003)).

n194. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).

n195. See infra note 200. Using race in this geographical way, those who developed the Plan began to notice that the university's merit-based admissions decisions actually preferred one group of taxpayers (those from suburban areas) over another group (those from rural and urban areas who did not have the resources to pay for test preparation or educational amenities). By contrast, Professor David Montejano analyzed UT Austin's feeder high schools and found that many of the beneficiaries of the TTP were black and Latino students from inner-city high schools in San Antonio, Houston, and Dallas, as well as whites from rural high schools in northern and eastern Texas. See David Montejano, Access to the University of Texas at Austin and the Ten Percent Plan: A Three-Year Assessment, http://www.utexas.edu/student/ research/reports/admissions/Montejanopaper.htm (last updated Jan. 13, 2003).

n196. See Marta Tienda et al., Closing the Gap?: Admissions & Enrollments at the Texas Public Flagships Before and After Affirmative Action 33 (Office of Population Research, Princeton Univ., Working Paper No. 2003-01, 2003) ("The rationale for this emphasis is grounded in a large body of literature showing that

high school grades are one of the best predictors of long term success in college while standardized test scores predict freshman grades (and little else)."), available at http://www.opr.princeton.edu/papers/opr0301.pdf. The stated legislative purpose of the TTP was to give the best students of each high school in the state the opportunity to attend the state's flagship universities. In this way, the Plan was designed to significantly broaden the ranks of the universities' feeder high schools, while still permitting the admission of some students under a system of sponsored mobility.

n197. Hair, supra note 184, at 25 (quoting Professor Gerald Torres) (internal quotation marks omitted).

n198. Gerald Torres, Grutter v. Bollinger/Gratz v. Bollinger: View from a Limestone Ledge, 103 Colum. L. Rev. (forthcoming 2003) (manuscript at 5, on file with the Harvard Law School Library). In 1996, almost half of the freshman class at UT Austin hailed from just 64 high schools, and approximately 900 Texas high schools sent no one to UT Austin. Montejano, supra note 195; see also Hair, supra note 184, at 24; William E. Forbath & Gerald Torres, Merit and Diversity After Hopwood, 10 Stan. L. & Pol'y Rev. 185, 187 (1999) (noting that in 1997, nearly half of the freshmen enrolled at UT hailed from 50 of the 1800 high schools in Texas); E-mail from David Montejano, Associate Professor of Ethnic Studies, University of California at Berkeley, to Lani Guinier (Sept. 8, 2003, 16:39:04 PST) (on file with the Harvard Law School Library) [hereinafter Montejano E-mail] ("These "new sender' high schools draw largely from two distinct clusters of minority inner-city schools and rural white schools. This suggests that [the TTP] is working as its legislative authors intended.").

n199. The Plan addressed "race in a fundamental way, while at the same time including whites and creating the potential for a cross-racial alliance." Hair, supra note 184, at 25.

n200. William E. Forbath & Gerald Torres, The "Talented Tenth" in Texas, The Nation, Dec. 15, 1997, at 20, 20 (quoting David Montejano) (internal quotation mark omitted); see also id. ("Hopwood forced champions of diversity to take account of broader inequities ... ."). For example, the bill's architect, Representative Irma Rangel, was able to gain the support of one of the state's most conservative lawmakers, the Chair of the Senate Higher Education Committee, who "believed the Plan's emphasis on hard work and grit would appeal to his mostly white

constituents." Hair, supra note 184, at 28.

n201. Danielle Holley & Delia Spencer, The Texas Ten Percent Plan, 34 Harv. C.R.-C.L. L. Rev. 245, 260 (1999); see also id. ("The Plan recognizes the continued racial segregation of Texas high schools and provides an equal opportunity for all students to enter the public universities, even those students from the largely minority schools that have been severely under-represented in the matriculating student populations at Texas state universities, and, especially, at the flagship institutions.").

n202. See Hair, supra note 184, at 25, 28 (noting that proponents of the TTP emphasized its appeal to potential white beneficiaries and argued that "Texas did not want to emulate California with its political hostility toward people of color and immigrants"); see also infra note 224.

n203. Hair, supra note 184, at 25; see also Holley & Spencer, supra note 201, at 262 (arguing that the TTP shifts the focus to inequalities in the state's primary and secondary school system); sources cited supra note 186 (describing the realization of university administrators that the fates of public schools and universities are linked); infra note 358.

n204. Carnevale & Rose, supra note 2, at 10-11. Class is not, however, a substitute for race. It is an interdependent variable that is often constructed and revealed by race. See infra note 366.

n205. Some rural communities in West Texas had not sent any high school graduates to UT Austin in the years preceding the Hopwood decision, although as taxpayers, they helped subsidize the campus. See Montejano, supra note 195. Under the TTP, the majority of the "new sender" white high schools are located in rural parts of Texas, including twenty-four schools in Northeast Texas, sixteen schools in East Texas, and a number of schools scattered throughout West Texas, the Panhandle, and Central Texas. Id.

n206. See Schmidt, supra note 27, at A32-33 (discussing race, class, and

admissions rates in urban versus suburban Detroit). Schmidt found that "of the 5,719 in-state students admitted to Michigan last year, more than a fifth came from schools in seven affluent suburbs in Oakland County, north of Detroit," whereas "most of the high schools in the state's blue-collar white communities are lucky to have more than 5 per cent of their graduates admitted to the university." Id. at A34.

n207. See supra notes 166-171 and accompanying text.

n208. See Hair, supra note 184, at 32-33 ("In the fall of 1997[, t]he top two feeder schools were Plano High School (outside of Dallas), where students are 81 percent white and property value is $ 362,159 per pupil, and Westlake High School (Austin), which is 89 percent white and has a per-pupil property value of $ 429,026."); see also Holley & Spencer, supra note 201, at 267-70 (noting that the TTP's sponsoring legislators hoped that the Plan would broaden the student applicant pool because it targeted high schools highly segregated by race and class). Federal courts have found that schools in Houston, Dallas, and Austin remained intentionally segregated at least until 1967, 1970, and 1980 respectively. See Ross v. Houston Indep. Sch. Dist., 699 F.2d 218, 220-21 (5th Cir. 1983) (finding that racial segregation in schools continued until 1967); Tasby v. Woolery, 869 F. Supp. 454, 456 (N.D. Tex. 1994) (noting that in 1970, most schools in the Dallas Independent School District were still "one-race schools," in which at least ninety percent of the students were of the same race); Price v. Austin Indep. Sch. Dist., 729 F. Supp. 533, 535 (W.D. Tex. 1990) (noting that an integrative student plan was not generated until 1980). See generally Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (1993) (documenting the relationship between race, class, and geography).

n209. See, e.g., Bush v. Vera, 517 U.S. 952 (1996) (upholding a challenge by white voters to the creation of three majority-minority congressional districts in Texas); League of United Latin Am. Citizens v. Clements, 999 F.2d 831 (5th Cir. 1993) (en banc) (addressing a vote dilution challenge by black and Latino voters to the countywide election of Texas trial judges).

n210. The TTP worked to integrate the flagship colleges in roughly the same way that race-conscious districting works to integrate state legislatures:

While not racially explicit in operation, the TTP exposed deep truths about race. Public school segregation results from continuing patterns of residential segregation as well as, in some places, white residents' withdrawal from public education into private schools. As scholars have exhaustively documented, residential segregation is not the result of chance, but derives from a host of segregative governmental policies, as well as private racial discrimination. Racial segregation itself imposes disadvantage. Thus, as a measure to address the State's history of racial discrimination, it makes sense to use segregated-school geography to allocate a scarce resource, such as admission to flagship campuses. Hair, supra note 184, at 24. Ironically, many who defend the use of race-conscious election districts that build on the racial segregation of local communities to ensure that voters of color can elect candidates of their choice were offended by the use of a plan that worked in part because so many of the state's high schools were also racially homogeneous. See infra notes 223, 233.

n211. Torres, supra note 198 (manuscript at 7).

n212. Id. (manuscript at 16). According to Bruce Walker, Admissions Director at UT Austin, the school's aggressive, community-wide recruitment efforts resulted in part from the way the legislation "expanded" the school's definition of "achievement." Holley & Spencer, supra note 201, at 269-271.

n213. Gary M. Lavergne & Bruce Walker, Implementation and Results of the Texas Automatic Admissions Law (HB 588) at The University of Texas at Austin 10 (2002), available at http://www.utexas.edu/student/research/reports/admissions/HB588Report5.pdf.

n214. See Jim Yardley, The 10 Percent Solution, N.Y. Times, Apr. 14, 2002, 4A (Education Life), at 28 ("Overall, ... officials at both Texas A&M and the University of Texas say the demand for traditional remediation has not increased. They think the top 10 students are more focused, disciplined and accustomed to fighting to succeed, regardless of their high school.").

n215. Unlike the "One-Florida Plan," for example, the TTP was not unilaterally imposed by the governor without prior consultation. See Torres, supra note 198 (manuscript at 7). Nor was it quietly introduced without public debate as the SAT was in California in the 1950s. Cf. infra p. 189. The TTP was an indigenous experiment, not a one-size-fits-all test developed by a national bureaucracy. Moreover, its efficacy has been carefully investigated by researchers outside of Texas. See, e.g., Brief of Social Scientists Glenn C. Loury et al. as Amici Curiae in Support of Respondents at 4, Grutter (No. 02-241), Gratz (No. 02-516); Tienda et al., supra note 196.

n216. For example, using grades alone disadvantages those who attend a more competitive high school or undertake a more difficult curriculum. See Patricia Kilday Hart, Texas Ponders Changes to 10% Law, Boston Globe, June 25, 2003, at A3 ("There is a fundamental problem with the top 10 percent law. There is no uniformity in the quality of education at the hundreds and hundreds of public and private high schools in [the] state." (quoting Texas State Senator Jeff Wentworth, who has pushed for legislation to change the TTP) (internal quotation marks omitted)).

n217. Relative performance in high school may itself be susceptible to racial and socioeconomic variations. Cf. Wilkins, supra note 160, at 18 (noting the loose fit between "color blind" credentials and the social purposes they are designed to serve); Wilkins & Gulati, supra note 8, at 1677-78 (comparing the "meritocracies" at law firms to a figure skating competition in which a candidate's looks, style, and social class, along with the judge's identity, influence outcomes).

n218. This concern, however, is not borne out by the data, which shows that TTP students earned better freshman-year grades than other students. See supra notes 213-214 and accompanying text. Moreover, critics of affirmative action and proponents of contest mobility define merit in a backward-looking fashion. A classic anti-affirmative action comment might begin: "Would you want a black doctor to operate on you who got into medical school because of affirmative action?" A typical response from an affirmative action proponent would be: "Who cares how he got in as long as he got out?"

n219. See The University of Texas at Austin, supra note 49 (noting that achieving excellence in public service is part of UT's mission).

n220. In this sense, the TTP may look forward to the contributions that these same students will make both in the classroom and in leadership positions throughout the state after they graduate. See Yardley, supra note 214 (describing the fighting spirit of the TTP students); cf. supra notes 145-148 and accompanying text (discussing commitment to public service among Michigan Law School graduates of color); Wilkins & Gulati, supra note 8, at 1680 (recommending that law firms, when making promotions, deemphasize backward-looking assessments and instead "capture those practices that play an important role in preserving the future interests of the firm").

n221. See Torres supra note 198 (manuscript at 17-18) (describing the role of the flagship state universities as historical gateways to state leadership.); id. at 17 (quoting UT President Faulkner as stating that leadership should come "from all sectors of society" (internal quotation mark omitted)).

n222. See, e.g., Tienda et al., supra note 196, at 31 ("The top ten percent admission policy is not an alternative to affirmative action and by itself can only achieve minimal campus diversity, even in the presence of high levels of school segregation."). Percentage plans, especially in the absence of financial aid and recruitment, do not substitute for race-conscious efforts to improve the numbers and preparation of blacks and Latinos in the admissions pool. See id. at 28 (noting that the top decile of minority students after 1996 were more likely to enroll at UT Austin than at Texas A&M because of UT's Longhorn Scholars Program, which provided financial support to many low-income admittees); see also supra note 216 (describing the concern that high school rankings do not account for the varying degrees of difficulty of coursework across high schools).

n223. One frequent criticism is that the TTP failed to keep up with the changing demographics in Texas: although the TTP increased the number of admissions slots by 1000, this number failed to accommodate the much more dramatic increase in the number of eligible applicants. As a result, the school rejected more than half of the potentially admissible applicants, a disproportionate number of whom were black or Latino. Tienda et al., supra note 196, at 23-24. Yet the steady rise in the number of applicants but not admissions slots is a nationwide phenomenon that is not limited to states using percentage plans. Thus, neither sponsored nor structural mobility alone adequately addresses the issues of ongoing racial inequality. Yet one virtue of the TTP at UT Austin is that it equalizes the likelihood of enrollment (not just admission) of students from schools that traditionally have not sent

graduates to the flagship campus, leading to greater geographical diversity, and increased representation from urban and rural public schools with different racial and socioeconomic compositions. Id. at 27-28; see also Montejano E-mail, supra note 198 (noting that the TTP brought "different kinds of high schools into the UT-Austin sending mix" - schools that were generally more racially diverse and much poorer). Another argument against percentage plans is that they "reify and continue" racial segregation. See, e.g., Michelle Adams, Isn't It Ironic? The Central Paradox at the Heart of "Percentage Plans", 62 Ohio St. L.J. 1729, 1735 (2001) (arguing that "percentage plans reflect not only the state's recognition of racial segregation and associated systematic disadvantage, but such plans also reify and continue those ills by implementing a mechanism intended to achieve racial diversity upon a foundation of inequality"). But this argument is equally true of sponsored mobility, which does nothing to integrate elementary or high schools. Indeed, sponsored mobility may accelerate segregation in K-12 schools, not only by race but also by class and within racial groups as middle-class blacks flee the urban public schools. The fact that black and Latino students represented only seven percent of all applicants to both Texas A&M and UT Austin, see Tienda et al., supra note 196, at 24, suggests that the problem is the quality of K-12 education, which cannot be fixed by simply changing a university admissions policy. Even an admissions guarantee does not guarantee application. Id. at 26; cf. supra note 210.

n224. This aspect of the TTP was one of the Plan's selling points in Texas. The Educational Testing Service is "just the kind of centralized social bureaucracy that conservatives, in most contexts, love to hate." Forbath & Torres, supra note 200, at 21; see also id. ("Imagine a boy from [poor and predominantly white] Levelland. He puts his shoulder to the wheel and works hard, listens to his teachers and graduates first in his class. Why should some bureaucrats in Princeton, New Jersey, be able to tell him he's not good enough to go to the University of Texas?" (alteration in original) (internal quotation marks omitted)).

n225. The TTP "may erode ... elitism, in ways that many ... liberals and progressives ... could find discomforting. We have grown accustomed to the melding of exclusivity and inclusivity embodied by affirmative action and conventional ... college admissions standards, although this system often chooses middle-class minorities ... and relatively affluent white students as well." Id. at 20.

n226. See Holley & Spencer, supra note 201, at 264-66 (describing pre-Hopwood recruitment patterns as a "shotgun" approach that perpetuated the status quo, and

noting that, of the seven UT counselors assigned to visit Texas high schools, only five traveled outside of Austin and none traveled to East or West Texas); id. at 272 (noting that, prior to 1997, counselors at Texas A&M targeted high schools for recruitment based on prior personal experience).

n227. See id. at 278 ("The Plan's most impressive effect to date is the focus it directs on the need to improve secondary education for minorities in Texas."). Dr. Phillip Uri Treisman, who runs a research center at UT Austin devoted to improving K-12 education, said that after the Plan was passed, he saw "a change in the attitudes of administrators, who now have a vested interest in the quality of the state's high schools." Jodi Wilgoren, New Law in Texas Preserves Racial Mix in State's Colleges, N.Y. Times, Nov. 24, 1999, at A1.

n228. New scholarships at UT Austin that cover tuition for students from underrepresented high schools have been key to recruitment and were developed in conjunction with policy researchers. See Gary R. Hanson & Lawrence Burt, Responding to Hopwood: Using Policy Analysis Research To Re-design Scholarship Criteria, http://www.utexas.edu/ student/research/reports/Hopwood/Hopwood.html (last visited Oct. 11, 2003).

n229. Lemann, supra note 17, at 59 (describing Conant's efforts to create a new elite). Indeed, one of the reasons Conant's dream of introducing to America a fluid society committed to public service never materialized may be that those in charge of operationalizing his dream were a tightly knit group of likeminded men who avoided public scrutiny or debate about their efforts. See supra pp. 153-54 (describing the limitations of homogeneous groups in creatively solving problems); infra p. 189 (describing the absence of public assent when contest mobility was first introduced); see also Torres, supra note 198 (manuscript at 7) (comparing the grassroots origins of the Texas Ten Percent Plan with the top-down origins of a similar plan in Florida, which was unilaterally imposed by the governor without prior consultation).

n230. Whereas the GI Bill rewarded veterans for their past service, the TTP was justified in part by its commitment to future service. Its supporters sought to provide educational opportunity to a more diverse and representative group of public-spirited and community-engaged individuals who would eventually become state leaders. Similarly, training leaders to serve society has been a consistent subtext of the mission statements of American public universities. See supra notes

48-55, 219-221, and accompanying text.

n231. I am indebted to Theda Skocpol's analysis of successful social programs, from which I borrow with modifications. See Skocpol, supra note 185, at 24-43.

n232. See id. at 30-32. Skocpol identifies nineteenth-century public education, Civil War benefits, programs to help mothers and children in the 1910s and 1920s, the Social Security Act, and the GI Bill as among the country's finest social policy achievements because each of these systems of social support featured some version of the three elements above. Id. at 25-43. In many ways, the military itself is an example of two of the elements of structural mobility. See Charles C. Moskos & John Sibley Butler, All That We Can Be: Black Leadership and Racial Integration the Army Way 2 (1996) (describing the military as a success story of upward mobility and integration). Take, for example, the military's commitment to funding college education for members of the armed services; today's military still offers benefits in return for service and generates public revenues to support the program. Steven A. Holmes, For Job and Country: Is This Really an All-Volunteer Army?, N.Y. Times, Apr. 6, 2003, 4 (Week in Review), at 1 (reporting that the Department of Defense has expanded programs to help members of the military pay for college after active duty, making the issue "of who serves and who doesn't ... more and more a matter of who can afford college without help"). The third element of structural mobility - building a grassroots or organizational constituency - takes a less participatory form than the TTP, but it does move in the direction of constituency building and transparency. The military has become a prominent proponent of diversity; by linking diversity directly to its core mission, the military helps anchor diversity to democratic values. See Consolidated Brief of Lt. Gen. Julius W. Becton, Jr. et al. as Amici Curiae in Support of Respondents at 5, Grutter (No. 02-241), Gratz (No. 02-516) [hereinafter Military Brief] (stating that diversity in the officer corps and in the enlisted ranks is "essential to the military's ability to fulfill its principal mission to provide national security"). Indeed, the military has filled the gap that the federal government's retreat from higher education has left. Whereas the top twenty-five percent SES bracket dominates the student population at selective colleges and universities, the ratio is reversed in the military: since the Vietnam War, seventy-six percent of enlisted personnel come from working-class and poor families. See David M. Halbfinger & Steven A. Holmes, Military Mirrors a Working-Class America, N.Y. Times, Mar. 30, 2003, at A1 (describing a socioeconomic, racial, and geographic skew in the armed services as a whole). Unlike in colleges and universities, where they barely comprise a critical mass, blacks are actually overrepresented in the military. Id. (reporting that thirty-five percent of enlisted women are black and twenty-two percent of all enlisted personnel are black). But although the military, with its educational benefits, is an engine of upward mobility for blacks and Latinos, the more affluent members of

our society no longer serve in the armed forces. Id. ("The officer corps today does not represent American nobility. These are not people who are going to be future congressmen or senators. The number of veterans in the Senate and the House is dropping every year. It shows you that our upper class no longer serves." (quoting Charles C. Moskos, Professor of Sociology at Northwestern University) (internal quotation marks omitted)).

n233. The amici argued that these so-called race-neutral alternatives to affirmative action were actually race-conscious because they originated from a commitment to racial diversity. In addition, they argued, these plans forced institutions to choose between diversity and excellence, resulting in the admission of the "wrong" black students from underachieving high schools instead of the more academically prepared middle-class black students from magnet schools, suburban schools, or independent schools, where they received a good education but were not necessarily in the top ten percent of their class. Finally, the amici argued that the efficacy of percentage plans depended on the existence of racially segregated high schools - a proposition that some of them found deeply offensive. See Brief of Harvard University et al. as Amici Curiae Supporting Respondents at 23-25, Grutter (No. 02-241), Gratz (02-516); AALS Brief, supra note 5, at 16; Brief of the Leadership Conference on Civil Rights and the LCCR Education Fund as Amici Curiae in Support of Respondents at 25-27, Grutter (No. 02-241), Gratz (02-516). Of course, another reason the amici downplayed the notion of structural mobility was that the Bush administration and the Solicitor General's brief sought to use percentage plans to demonstrate that the Michigan plans were not narrowly tailored. See Brief for the United States as Amicus Curiae Supporting Petitioner at 13-17, Grutter (No. 02-241) [hereinafter U.S. Brief]. Some proponents of affirmative action worried, with good reason, that the Court might therefore use the existence of percentage plans as an excuse to avoid any explicit consideration of race. See Brief of the Harvard Black Law Students Association et al. as Amici Curiae Supporting Respondents at 20-22, 21 n.11, Grutter (No. 02-241) [hereinafter BLSA Brief]. Some might argue that the undergraduate plan at issue in Gratz was a weak form of structural mobility, in that it assigned numerical points to different categories of applicants, including those often overlooked, such as rural residents of the Upper Peninsula or students attending schools with high numbers of minority students. For reasons I explain later, see infra note 347, I do not consider the Michigan undergraduate plan, or the California and Florida percentage plans, exemplary of what I am calling structural mobility.

n234. See Grutter, 123 S. Ct. at 2339 ("The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer ... . Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within

the expertise of the university.").

n235. Justice O'Connor wrote that admissions policies "must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application." Id. at 2343. Justice O'Connor cited as proof of Michigan's truly "individualized consideration" the fact that "the Law School seriously weighs many other diversity factors besides race." Id. at 2344. She approvingly noted the Law School's "highly individualized, holistic review of each applicant's file," emphasizing that "the Law School does not, however, limit in any way the broad range of qualities and experiences that may be considered valuable contributions to student body diversity." Id. at 2343-44.

n236. Justice O'Connor explicitly noted that the Court has "never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination." Id. at 2339. She then explained that "the Law School's admissions policy promotes cross-racial understanding, helps to break down racial stereotypes, and enables [students] to better understand persons of different races." Id. at 2339-40 (alteration in original) (internal quotation marks omitted). She further noted the "learning outcomes" associated with diversity, such as better preparing students for an increasingly diverse workforce and society; promoting classroom discussion that is "livelier, more spirited, and simply more enlightening"; and providing the "skills needed in today's increasingly global marketplace." Id. at 2340.

n237. Justice O'Connor linked participation in educational institutions with the goals of broader democratic participation: "Nowhere is the importance of such openness more acute than in the context of higher education. Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized." Id. at 2340-41 (citation omitted) (quoting U.S. Brief, supra note 233, at 13) (internal quotation marks omitted); see also id. at 2341 ("Law schools "cannot be effective in isolation from the individuals and institutions with which the law interacts.'" (quoting Sweatt v. Painter, 339 U.S. 629, 634 (1950))). Justice O'Connor emphasized not simply access to admissions, but broader access to "participate" in the institutions themselves. Id. ("Access to legal education (and thus the legal profession) must be inclusive ... so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed ... .").

n238. Justice O'Connor acknowledged a range of benefits of diversity. See supra

note 236 (discussing the classroom benefits of diversity). Justice O'Connor also recognized the business interests in diversity. Grutter, 123 S. Ct. at 2340 ("American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints."). She quoted the military's claim that a "highly qualified, racially diverse officer corps ... is essential to the military's ability to fulfill its principal mission to provide national security." Id. (omission in original) (quoting Military Brief, supra note 232, at 27 (internal quotation marks omitted). Finally, she wrote that "universities, and in particular, law schools, represent the training ground for a large number of our Nation's leaders." Id. at 2341.

n239. Id. Justice O'Connor linked diversity to the institutional mission of higher education: "Our view [is] that attaining a diverse student body is at the heart of the Law School's proper institutional mission ... ." Id. at 2339. She then linked the mission of educational institutions to the promotion of democracy. See infra notes 242-243.

n240. Justice O'Connor wrote: The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer... . Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions ... . We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. Grutter, 123 S. Ct. at 2339. In his dissent, Justice Kennedy also mentioned that "Justice Powell's approval of the use of race in university admissions [in Bakke] reflected a tradition, grounded in the First Amendment, of acknowledging a university's conception of its educational mission." Id. at 2370 (Kennedy, J., dissenting) (citing Regents of University of California v. Bakke, 438 U.S. 265, 312-14 (1978)).

n241. See supra note 238.

n242. Grutter, 123 S. Ct. at 2341 ("In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity."); id. ("All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.").

n243. Id. at 2340 ("We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to "sustaining our political and cultural heritage' ... . This Court has long recognized that "education ... is the very foundation of good citizenship.'" (second omission in original) (citations omitted) (quoting Plyler v. Doe, 457 U.S. 202, 221 (1982); and Brown v. Board of Education, 347 U.S. 483, 493 (1954))); see also supra notes 56, 237.

n244. See Grutter, 123 S. Ct. at 2340 ("Numerous studies show that student body diversity promotes learning outcomes ... ."); see also supra note 238. Justice O'Connor's recognition of the pedagogical value of diversity is consistent with Cass Sunstein's recognition that diversity is critical to learning because "by a large margin, most of what we think comes not from firsthand knowledge but from what we learn from what others do and think." Cass R. Sunstein, Why Societies Need Dissent 9 (2003).

n245. Grutter, 123 S. Ct. at 2341 ("Diminishing the force of such stereotypes is both a crucial part of the Law School's mission, and one that it cannot accomplish with only token numbers of minority students.").

n246. See supra notes 237, 239, 242-243.

n247. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311-312 (1978) (opinion of Powell, J.).

n248. Grutter, 123 S. Ct. at 2337. Justice O'Connor's discussion of legitimacy, access, and democracy suggests that affirmative action serves a compelling governmental interest not simply because of its "diversity" benefits, but also - and perhaps mainly - because democracy cannot tolerate institutions with populations that reflect historical injustices. Justice Thomas derided this conception as mere "aesthetics," see infra note 275 and accompanying text, but in many ways Justice O'Connor's emphasis on democratic legitimacy seems quite at odds with the traditional diversity rationale; her opinion in Grutter seems to take a step back from both Justice Powell's view in Bakke and her own views in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), toward the original justifications for affirmative action. I thank Danielle Gray for suggesting this reading of Justice O'Connor's opinion: the real compelling interest is in (re)allocating scarce educational opportunity in a way that will advance the call of fully integrating society. For a discussion of the distinction between benign and odious uses of race, which in this reading Justice O'Connor implicitly accepted, see infra notes 260-261 and accompanying text.

n249. Here it is useful to read Justice O'Connor's opinion in conjunction with Chief Justice Rehnquist's opinion in Gratz. Chief Justice Rehnquist quoted Justice Powell's opinion in Bakke to illustrate the importance of not viewing race categorically, citing the admissions process at Harvard College: The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower but who had demonstrated energy and leadership as well as an apparently abiding interest in black power. If a good number of black students much like A but few like B had already been admitted, the Committee might prefer B; and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qualities or experience not dependent upon race but sometimes associated with it. Gratz, 123 S. Ct. at 2428-29 (quoting Bakke, 438 U.S. at 324 (opinion of Powell, J.)) (internal quotation marks omitted).

n250. Justice O'Connor wrote:

Unlike the law school admissions policy the Court upholds today ... the procedures employed by the University of Michigan's Office of Undergraduate Admissions do not provide for a meaningful individualized review of applicants... . The Office of Undergraduate Admissions relies on the selection index to assign every underrepresented minority applicant the same, automatic 20-point bonus without consideration of the particular background, experiences, or qualities of each individual applicant. This policy stands in sharp contrast to the law school's admissions plan, which enables admissions officers to make nuanced judgments. Id. at 2431-32 (O'Connor, J., concurring).

n251. Justice Breyer joined Justice O'Connor's concurrence in Gratz, although he was in the Grutter majority.

n252. Justice O'Connor differentiated between the "good" and "bad" use of numbers. In Gratz, she criticized the undergraduate program's use of numbers attached to race as "nonindividualized" and "mechanical." Gratz, 123 S. Ct. at 2433 (O'Connor, J., concurring). In Grutter, she likewise wrote: "To be narrowly tailored, a race-conscious admissions program cannot use a quota system - it cannot "insulate each category of applicants with certain desired qualifications from competition with all other applicants.'" Grutter, 123 S. Ct. at 2342 (alteration in original) (quoting Bakke, 438 U.S. at 314 (opinion of Powell, J.)). While Justice O'Connor dislikes quotas, however, she accepts numbers when used in moderation: "There is of course "some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.' "Some attention to numbers,' without more, does not transform a flexible admissions system into a rigid quota." Id. at 2343 (second alteration in original) (citations omitted) (quoting Bakke, 438 U.S. at 323 (opinion of Powell, J.)). Justice O'Connor's discussion of the Michigan Law School's admissions process shows that the process conformed with the standard set forth in Bakke: Dennis Shields, Director of Admissions when petitioner applied to the Law School, testified that he did not direct his staff to admit a particular percentage or number of minority students, but rather to consider an applicant's race along with all other factors. Shields testified that at the height of the admissions season, he would frequently consult the so-called "daily reports' that kept track of the racial and ethnic composition of the class (along with other information such as residency status and gender). This was done, Shields testified, to ensure that a critical mass of

underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body. Id. at 2333 (citations omitted). Justice O'Connor rejected the suggestion by Chief Justice Rehnquist and Justice Kennedy that the Law School's use of numbers amounted to racial balancing or the use of quotas. See id. at 2343; but cf. infra note 271 (describing Justice Thomas's criticism of the Court's deference to the Law School's "adherence to measures it knows produces racially skewed results").

n253. See Grutter, 123 S. Ct. at 2344 (describing other factors the Law School used to supplement LSAT scores); see also supra notes 135-136 (discussing the relationship between standardized test scores and group status). Justice O'Connor's distinction between "good" and "bad" uses of numbers suggests that numbers that are not directly associated with race - such as the top ten percent in a graduating high school class - are not inherently problematic in her view, although they are not relevant to graduate school admissions. See supra pp. 162-70 (discussing the Texas Ten Percent Plan). On the one hand, Justice O'Connor endorsed the use of numbers to rank applicants based on "merit." She suggested that numbers tell us something about merit when she warned in Grutter that a move away from testing "would require a dramatic sacrifice of ... the academic quality of all admitted students." Grutter, 123 S. Ct. at 2345. Similarly, she emphasized that the Court's requirement of an individualized assessment does not "require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups." Id. at 2344. On the other hand, Justice O'Connor suggested that these numbers may be deficient. She approvingly noted that the Law School recognized the limit to the values of testing: "Even the highest possible score does not guarantee admission to the Law School. Nor does a low score automatically disqualify an applicant. Rather, the policy requires admissions officials to look beyond grades and test scores ... ." Id. at 2332 (citations omitted).

n254. Gratz, 123 S. Ct. at 2431-32 (O'Connor, J., concurring). Justice O'Connor's concern with automatic or mechanical considerations of race is evident in both Grutter and Gratz. See Grutter, 123 S. Ct. at 2330 ("There is no policy [at the Law School], either de jure or de facto, of automatic acceptance or rejection based on any single "soft' variable."); id. at 2342 ("As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, nonmechanical way."); id. at 2343 (noting that, unlike the undergraduate admissions program considered in Gratz, the law school admissions program did not use any "mechanical, predetermined diversity "bonuses' based on race or

ethnicity"); Gratz, 123 S. Ct. at 2431 (O'Connor, J., concurring) (noting that "the Office of Undergraduate Admissions relies on the selection index to assign every underrepresented minority applicant the same, automatic 20-point bonus without consideration of the particular background, experiences, or qualities of each individual applicant"); id. at 2432 (noting that "the selection index, by setting up automatic, predetermined point allocations for the soft variables, ensures that the diversity contributions of applicants cannot be individually assessed"); id. at 2431 (arguing that "this mechanized selection index score, by and large, automatically determines the admissions decision for each applicant").

n255. Justice O'Connor would presumably be sympathetic, for example, to Justice Powell's hypothetical example in Bakke, in which an institution might choose a poor black student over a more accomplished middle-class black student to achieve class and racial diversity. See supra notes 248-249.

n256. The fact that educational institutions have multiple goals gives rise to the criticism, offered by some, that the Texas Ten Percent Plan lacks the flexibility and nuance to serve all of these various goals. See, e.g., Grutter, 123 S. Ct. at 2345 ("The United States advocates "percentage plans,' recently adopted by public undergraduate institutions in Texas, Florida, and California... . The United States does not, however, explain how such plans could work for graduate and professional schools. Moreover, even assuming such plans are race-neutral, they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university."); see also Sullivan, supra note 16, at 1052-54 (arguing that such percentage plans presumably pass constitutional muster, even though they function only as "crude proxies" for race-blind admissions considerations). Yet Justice O'Connor presumably would defer to the educational institution's choice to weigh these goals, as long as race was not used automatically to predetermine outcomes. See infra notes 263, 327.

n257. I infer this understanding of good faith from Justice O'Connor's discussion of the legitimacy of the diversity rationale, see Grutter, 123 S. Ct. at 2340-41, and from her discussion of the Michigan Law School's desire to discontinue race-based admissions, see id. at 2346; see also id. at 2339 (discussing the Court's deference to the Law School's educational judgment).

n258. These three rules for operationalizing the use of race are fairly general.

First, institutions should avoid using race as a mechanistic or rigid "bonus" factor. Id. at 2342. Second, institutions can consider race holistically as a plus factor to achieve a critical mass of black and Latino students and to otherwise realize the broader value of diversity. Id. at 2342-43. Third, institutions should be given leeway to navigate the cross-currents between the first two rules as long as they engage in a continuous process of review and reconsideration, demonstrating a willingness, for example, to consider race-neutral alternatives. Id. at 2344-46.

n259. Justice Kennedy called this deference "a review that is nothing short of perfunctory." Id. at 2371 (Kennedy, J., dissenting). Justice Thomas criticized the Court's "unprecedented deference" to the Law School. Id. at 2356 (Thomas, J., concurring in part and dissenting in part). In Justice Thomas's view, reliance on elite decisionmakers is misguided. He criticized the "meddling of university administrators," id. at 2350, and noted that "the status quo being defended is that of the elite establishment - here the Law School." Id. at 2359.

n260. Justice Ginsburg read the Equal Protection Clause as allowing benign categorizations: "In implementing this equality instruction, as I see it, government decisionmakers may properly distinguish between policies of exclusion and inclusion." Gratz, 123 S. Ct. at 2444 (Ginsburg, J., dissenting). She then contrasted racial classifications that are used "for the purpose of maintaining racial inequality," which are properly "suspect," with those used "for the purpose of achieving equality." Id. (quoting Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 920, 931-32 (2d Cir. 1968)) (internal quotation marks omitted). Further, she pointed to "contemporary human rights documents [that properly] draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality." Id. at 2445; see also supra note 248 (describing a plausible reading of Justice O'Connor's opinion that is consistent with the distinctions Justice Ginsberg made).

n261. See Sullivan, supra note 16, at 1048-49 ("Strict scrutiny of facially race-neutral laws is appropriate only when impermissible racial animus or supremacism can be distilled from behind their neutral masks - for example, as an inference from grossly disproportionate racial effects. No such supremacist purpose is present ... when racial integration and diversity are the motivating principles behind a law.").

n262. Sturm, supra note 46, at 325 (internal quotation marks omitted); see also id. ("This form of reflective practice, particularly if informed by data revealing

patterns of conduct, would require practitioners to evaluate their practice in relation to articulated goals and criteria, and to revise their strategies in light of what they learn.").

n263. In applying the narrow tailoring requirement in Grutter, Justice O'Connor called for "continuing oversight to assure that [admissions policies] work the least harm possible." Grutter, 123 S. Ct. at 2345 (quoting Regents of University of California v. Bakke, 438 U.S. 265, 308 (1978) (opinion of Powell, J.)). She further instructed that the Court's twenty-five-year limit on affirmative action was intended to encourage "periodic reviews to determine whether racial preferences are still necessary," as well as "experimenting with a wide variety of alternative approaches" so that universities may learn from the practices of other institutions and "draw on the most promising aspects of these race-neutral alternatives as they develop." Id. at 2346. As Professor Pamela Karlan recently suggested, the Court's reasoning has conclusively settled the issue whether diversity is a compelling interest: "The action will be in whether the choices are narrowly tailored." Pamela Karlan, Comments at the Harvard University Civil Rights Project (July 16, 2003).

n264. This conception reinforces Justice Thomas's "interest-convergence" argument (borrowed from Professor Derrick Bell). See infra note 274 and accompanying text.

n265. Grutter, 123 S. Ct. at 2346-47. Justices Ginsburg and Breyer skeptically regarded this twenty-five-year expiration date as an expression of "hope" that race-based considerations would no longer be necessary in a quarter of a century. See id. at 2348 (Ginsburg, J., concurring). In his dissent, Chief Justice Rehnquist criticized the proposed twenty-five-year period as merely a "possible ... limitation" that served to undermine strict scrutiny. Id. at 2369-70 (Rehnquist, C.J., dissenting) ("These discussions of a time limit are the vaguest of assurances. In truth, they permit the Law School's use of racial preferences on a seemingly permanent basis. Thus, an important component of strict scrutiny - that a program be limited in time - is casually subverted.").

n266. See infra note 272. Only a hands-off approach, each black man or woman for himself or herself, would be constitutional in his view. Justice Thomas scorns white munificence in favor of the determination of John Henry, the legendary black

steel-driving man who died trying to beat the machine. In his Grutter dissent, Justice Thomas quoted Frederick Douglass: "The American people have always been anxious to know what they shall do with us ... . I have had but one answer from the beginning. Do nothing with us!" Grutter, 123 S. Ct. at 2350 (Thomas, J., concurring in part and dissenting in part) (omission in original) (quoting Frederick Douglass, What a Black Man Wants, Address Delivered in Boston, Mass. (Jan. 26, 1865), in The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds., 1991)). "Like Douglass," Justice Thomas continued, "I believe blacks can achieve in every avenue of American life without the meddling of university administrators." Id. Justice Thomas went on to challenge the majority's acceptance of the correlation between diversity and educational benefits, citing the educational benefits of racial homogeneity among black students attending historically black colleges (HBCs). Id. at 2358. Suggesting his approval of HBCs, Justice Thomas then went on to reason that the majority's deference to institutional decisions regarding diversity in turn justifies "an HBC's rejection of white applicants in order to maintain racial homogeneity." Id. Justice Thomas warned that the majority's reasoning "is the seed of a new constitutional justification for a concept I thought long and rightly rejected - racial segregation." Id.; see also infra notes 272-273.

n267. Grutter, 123 S. Ct. at 2350.

n268. Id. at 2362 n.11. Justice Thomas complained that "all the Law School cares about is its own image among know-it-all elites, not solving real problems like the crisis of black male underperformance." Id.

n269. Id. at 2362. Justice Thomas wrote: "Diversity," for all of its devotees, is more a fashionable catchphrase than it is a useful term, especially when something as serious as racial discrimination is at issue. Because the Equal Protection Clause renders the color of one's skin constitutionally irrelevant to the Law School's mission, I refer to the Law School's interest as an "aesthetic." That is, the Law School wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them. I also use the term "aesthetic" because I believe it underlines the ineffectiveness of racially discriminatory admissions in actually helping those who are truly underprivileged. It must be remembered that the Law School's racial discrimination does nothing for those too poor or uneducated to participate in elite higher education and therefore presents only an illusory solution

to the challenges facing our Nation. Id. at 2353 n.3 (alteration in original) (citation omitted). Justice Thomas called this system a "cruel farce of racial discrimination" and wrote that "the aestheticists will never address the real problems facing "underrepresented minorities.'" Id. at 2362.

n270. Under Justice O'Connor's view, democratic legitimacy is obtained through broad deference to the benevolent exercise of discretion by elites, whose discretion is reliable if they actively engage in the process of reflection, monitoring, and retrofitting. See supra note 263 (describing the role of self-reflective and continuous investigation); see also Sturm, supra note 46, at 325 ("This process induces self-consciousness and systematic inquiry, which in turn promotes responsible decision-making that can be (and has been) justified in relation to specified goals. This process also discourages, or at least makes visible, abuses of power.").

n271. Contest mobility is only a rough proxy for Justice Thomas's view, which also contains elements of structural mobility: for example, he does not assume that ranking and sorting individuals based on competitive performance is always a true indicator of merit. He noted that there is nothing inherently honorable about selective admissions. "Since its inception," he wrote, "selective admissions has been the vehicle for racial, ethnic, and religious tinkering and experimentation by university administrators." Grutter, 123 S. Ct. at 2360 (Thomas, J., concurring in part and dissenting in part). Moreover, he added, "the use of test scores ... to "predict' academic performance is a poor substitute for a system that gives every applicant a chance to prove he can succeed in the study of law." Id. at 2359. The current admissions process, he wrote, is "poisoned by numerous exceptions to "merit,'" including legacy preferences. Id. Justice Thomas continued: No modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admissions Test (LSAT). Nevertheless, law schools continue to use the test and then attempt to "correct" for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body. The Law School's continued adherence to measures it knows produce racially skewed results is not entitled to deference by this Court. The Law School itself admits that the test is imperfect ... . And the Law School's amici cannot seem to agree on the fundamental question whether the test itself is useful. Id. at 2360-61 (citations omitted). Justice Thomas then went on to compare the

amicus brief of the Law School Admission Council, which argued that "LSAT scores ... are an effective predictor of students' performance in law school," id. at 2361 (quoting Brief of the Law School Admission Council as Amicus Curiae in Support of Respondents at 12, Grutter (No. 02-241)) (omission in original) (internal quotation marks omitted), with the brief of the Harvard Black Law Students Association, which stated that the LSAT's usefulness as a measure of "objective merit ... is certainly questionable." Id. (quoting BLSA Brief, supra note 233, at 27) (omission in original) (internal quotation mark omitted). Justice Thomas's skepticism about admissions testing as a legitimate or fair selection device does not extend, however, to all forms of evaluation based on performance. Compare id. at 2360-61 (criticizing the LSAT as producing "racially skewed results"), with id. at 2360 (implying that other achievement-based admissions programs, such as course-completion or percentage programs, would be acceptable). <PARA'0 pt'0 pt'0 pt'>Indeed, Justice Thomas's opinion vacillates between contest and structural mobility. Despite his criticism of measures of so-called merit, Justice Thomas did not explicitly call for the reform of admissions testing, which lies at the heart of contest mobility. Instead, he criticized sponsored mobility and the incentive structure created by affirmative action. In other words, rather than opting for a reconceptualization of so-called merit, Justice Thomas's opinion simply asked us to lean harder on what he admits are weak measures of "merit." He wrote: As admission prospects approach certainty, there is no incentive for the black applicant to continue to prepare for the LSAT ... . The possibility remains that this racial discrimination will help fulfill the bigot's prophecy about black underperformance - just as it confirms the conspiracy theorist's belief that "institutional racism" is at fault for every racial disparity in our society. Id. at 2364-65.

n272. He supported his position with personal observation and presumably personal experience. See id. at 2362 ("When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma - because either racial discrimination did play a role, in which case the person may be deemed "otherwise unqualified,' or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination."). Justice Thomas's earlier stances were less hostile to diversity goals. For example, when he was Assistant Secretary of Education, he criticized a Texas plan as "insufficient to meet Texas' commitment to enroll [graduate students of color] in proportion to the representation among graduates of the state's undergraduate institutions." Holley & Spencer, supra note 201, at 247 (quoting Hopwood v.

Texas, 861 F. Supp. 551, 556 (W.D. Tex. 1994)) (internal quotation marks omitted).

n273. See Grutter, 123 S. Ct. at 2361 (Thomas, J., concurring in part and dissenting in part) ("What lies beneath the Court's decision today are the benighted notions that one can tell when racial discrimination benefits (rather than hurts) minority groups, and that racial discrimination is necessary to remedy general social ills." (citations omitted)).

n274. Justice Thomas's argument, which reconfigures Derrick Bell's interest-convergence thesis, seems to be that gains by blacks usually depend on the perception by whites that the advancement of people of color is in their own interest; diversity for diversity's sake, the argument goes, may be in the interests of the cognoscenti, but it is not necessarily in the interests of blacks generally. See id. at 2358 (discussing the harmful impact of affirmative action on black students); see also Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518, 524-25 (1980) (arguing that the Court ordered the desegregation of schools in Brown v. Board of Education, 347 U.S. 483 (1954), to confer democratic legitimacy on America rather than to help educate black children).

n275. See Grutter, 123 S. Ct. at 2362 (Thomas, J., concurring in part and dissenting in part) ("The Law School seeks only a fa<?extend ascii 231>ade - it is sufficient that the class look right, even if it does not perform right."); supra note 269.

n276. Justice Thomas's space for a more functional approach is revealed by his statement that "those of us who view higher education's purpose as imparting knowledge and skills to students, rather than a communal, rubber-stamp, credentialing process" will look for students who "will succeed in the study of law" rather than merely those who "look[] right." Grutter, 123 S. Ct. at 2361-62 (Thomas, J., concurring in part and dissenting in part). Furthermore, Justice Thomas appeared to invite some experimentation when he wrote: "In any event, there is nothing ancient, honorable, or constitutionally protected about "selective' admissions. The University of Michigan should be well aware that alternative methods have historically been used for the admission of students." Id. at 2360. He went on to mention the Texas Ten Percent Plan as one modern example of such an "alternative method." Id. In his harsh criticism of the "cruel farce" of affirmative

action, perpetuated by "aestheticists" who "experiment[] on other people's children," Justice Thomas seemed most concerned that the elites who construct these admissions policies do not act in the interests of the black and Latino students themselves, who he believes do not benefit from these admissions policies at all. See id. at 2362. Thus, implicit in Justice Thomas's critique of the Court's deference to elites is a call for greater accountability in the distribution of opportunity broadly construed. See supra note 271 (explaining how Justice Thomas's opinion is consistent with structural mobility).

n277. For example, Linda Krieger writes: Very little information shapes a social perceiver's impression of a target person. Rather, it is the perceiver's interpretation of the raw information that influences social judgment... . Given the realities of social perception, we can anticipate that similarly situated people will be treated differently based on their group membership, because decision makers, influenced by these subtle forms of intergroup bias, will not perceive them as similarly situated at all. Nothing in the colorblindness approach to nondiscrimination provides social decision makers with the tools required to recognize or to correct for biases of this sort. Krieger, Perestroika, supra note 162, at 1284-85; see also Underwood, supra note 157, at 1431-32 (suggesting that a central weakness of the "clinical" selection processes in which experienced decisionmakers exercise discretion and make individualized assessments is that decisionmakers may "refuse to surrender their discretionary power" over time and utilize "illegal or otherwise unacceptable criteria" in decisionmaking).

n278. See Krieger, Perestroika, supra note 162, at 1284 ("It is reasonable to believe that people will interpret ambiguous behaviors of persons with whom they identify more positively than they will interpret similar behaviors of persons from whom they feel socially distant."). If decisionmakers tend to favor the familiar, then it is likely that elite decisionmakers will unknowingly engage in a largely self-replicating selection process. Cf. id. at 1285 ("According to spontaneous trait inference theory, only the application of deliberate, controlled, corrective processes can prevent stereotypes and subtle ingroup priming valances from biasing interpersonal judgment.").

n279. Cf. Sunstein, supra note 244, at 106-09 (arguing that dissenting views are

critical to effective decisionmaking); Banaji et al., supra note 171, at 141 ("It is unsettling, at least in societies that consciously affirm that judgments ought to be based on the "content of one's character,' to discover the extent to which judgments of individuals may reflect beliefs about their social group."); Krieger, Content, supra note 162, at 1188 (arguing that cognitive bias is not the same as intentional bias or what we think of as legally cognizable "racism").

n280. See Grutter, 123 S. Ct. at 2362 n.11 (Thomas, J., concurring in part and dissenting in part). Justice Souter also expressed concern with the issue of transparency. In his dissent in Gratz, he noted that transparency was a virtue of the college's point system: "Without knowing more about how the Admissions Review Committee [at the college] actually functions, it seems especially unfair to treat the candor of the admissions plan as an Achilles' heel." Gratz, 123 S. Ct. at 2442 (Souter, J., dissenting). Justice Souter then went on to "contrast ... the college's forthrightness in saying just what plus factor it gives" with the percentage plans that suffer from "deliberate obfuscation." Id. He wrote: "The "percentage plans' are just as race conscious as the point scheme (and fairly so), but they get their racially diverse results without saying directly what they are doing or why they are doing it." Id. <PARA'0 pt'0 pt'0 pt'>Justice Ginsburg, in her dissent in Gratz, also suggested that transparency ought to be encouraged. After reminding the Court of the lingering effects of racism faced by black and Latino students, Justice Ginsburg wrote: One can reasonably anticipate ... that colleges and universities will seek to maintain their minority enrollment ... whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage... . If honesty is the best policy, surely Michigan's accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises. Id. at 2446 (Ginsburg, J., dissenting).

n281. See Grutter, 123 S. Ct. at 2359-61 (Thomas, J., concurring in part and dissenting in part) (noting that exceptions "give the lie to protestations that merit admissions are in fact the order of the day," and connecting race to some of these exceptions).

n282. Justice Thomas wrote: The majority of blacks are admitted to the Law School because of discrimination [in the form of affirmative action], and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the "beneficiaries" of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement... . Is this what the Court means by "visibly open"? Id. at 2362.

n283. Beth Roy, for example, notes that whites who feel that they cannot pass on their success to their children, or that they have failed as individuals to achieve what was promised by the American Dream, point to blacks to explain this dissatisfaction. See Roy, supra note 8, at 338, 343-44. They blame blacks, who they believe have "stolen" the Dream so that whites are now "working for them." Id. at 343; see also id. (noting that one white woman "believed she was paying for their privilege").

n284. See, e.g., Sturm & Guinier, supra note 79, at 995 & n.183 (reporting that legacies account for up to twenty-five percent of admissions to some of the top schools in the country (citing Sheila Foster, Difference and Equality: A Critical Assessment of the Concept of "Diversity", 1993 Wis. L. Rev. 105, 143)); Jim Spencer, Family Ties Bind College Admissions, Denv. Post, June 29, 2003, at A25 (noting Harvard Professor Gary Orfield's assertion that "legacies ... get into schools at acceptance rates in excess of all students, including ethnic minorities"); cf. Karen W. Arenson, Study of Elite Colleges Finds Athletes Are Isolated from Classmates, N.Y. Times, Sept. 15, 2003, at A12 (reporting on a study by Bowen finding that athletes enjoy an even greater admissions advantage than legacy admits and, at Ivy League schools, than students of color). But see Bowen & Bok, supra note 96, at 28-29 (claiming that the "overall admission rates" for legacies and black candidates are "roughly the same" at the five elite schools surveyed, and further arguing that, when test scores are taken into account, "black candidates are consistently admitted at higher rates than legacies," although both groups enjoy an advantage over other candidates).

n285. As Justice Thomas implied in his dissent in Grutter, legacy preferences

may also go unchallenged because they serve to perpetuate elites' hold on educational institutions, thus protecting the same elites involved in other areas of key institutional and societal decisionmaking. See Grutter, 123 S. Ct. at 2360 n.10 (Thomas, J., concurring in part and dissenting in part) ("Were this Court to have the courage to forbid the use of racial discrimination in admissions, legacy preferences (and similar practices) might quickly become less popular - a possibility not lost, I am certain, on the elites (both individual and institutional) supporting the Law School in this case.").

n286. See Charles R. Lawrence III & Mari J. Matsuda, We Won't Go Back: Making the Case for Affirmative Action 96-97, 128 (1997) (asserting that legacy admits do not carry the same stigma that affirmative action admits carry, even though a 1990 Office of Civil Rights compliance review found that at Harvard University legacy admits had mean SAT scores that were thirty-five points below the mean scores for all admitted students).

n287. Justice O'Connor's opinion in Grutter at times suggested this popular view of diversity as oppositional to "merit." For example, Justice O'Connor warned that decreasing the emphasis on testing might "require a dramatic sacrifice [in] ... the academic quality of all admitted students." Grutter, 123 S. Ct. at 2345. Similarly, in finding the Law School's policy sufficiently individualized, she noted that "the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission." Id.

n288. It is the privileging of "testable merit" that contributes to stigma. See Krieger, Perestroika, supra note 162, at 1271 ("Selection using a procedure perceived as unfair imposes stigma and leads to other negative effects ... .").

n289. See Grutter, 123 S. Ct. at 2349 (Scalia, J., concurring in part and dissenting in part) (comparing the "educational benefit" of diversity to lessons learned by kindergarteners).

n290. As Justice Scalia asked counsel for the Law School: "Now, if Michigan really cares enough about that racial imbalance, why doesn't it do as many other State law schools do, lower the standards, not have a flagship elite law school, it

solves the problem." Transcript of Oral Argument at 31, Grutter (No. 02-241), available at http://www.supremecourtus.gov/oral arguments/ transcripts/02-241.pdf.

n291. See supra notes 112-114, 283, and accompanying text (discussing the relationship between the individual opportunity of the American Dream and the racial scapegoating that is used to explain individual failure in nonindividual terms).

n292. Thus, the schools, playing by the Court's own rules, may find it difficult to meet Justice O'Connor's mandate to create admissions processes that "remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application." Grutter, 123 S. Ct. at 2343.

n293. Justice Scalia, in his Grutter dissent, sarcastically warned of such backlash as he questioned the "educational benefits" of diversity: "The nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand." Id. at 2349 (Scalia, J., concurring in part and dissenting in part). While one can discern a certain desperation in the efforts of the Center for Individual Rights and others to continue to recycle their old rhetoric post-Grutter, there is no doubt that the public remains skeptical of "racial preferences." As Derek Bok points out, while there has been a huge shift in public attitudes on race over the last twenty-five years, the animus toward "racial preferences" has remained surprisingly stable. See Bok, supra note 24.

n294. Cf. Baltzell, supra note 1, at 277 ("The economic reforms of one generation tend to produce status conflicts in the next."); Brooks, supra note 58, at 31 ("Tocqueville's principle of revolutions proved true: as social success seems more possible for a rising group, the remaining hindrances seem more and more intolerable."). But cf. Lemann, supra note 17, at 345 (explaining the role of universities after World War II as the "arbiter of fates" and arguing that, despite the rhetoric of opportunity for all, the American university system, with its emphasis on contest mobility, served primarily as a means of "transferring status between generations, not of altering or upending it").

n295. See supra note 105.

n296. Lemann, supra note 17, at 345-46.

n297. Id.; see also Jacques Steinberg, 3 Look to College Suit To Show Their Merits, N.Y. Times, Feb. 23, 2003, at A32 (reporting in an interview with Jennifer Gratz that her father is a police officer and that she "grew up in Southgate, a working-class Detroit suburb").

n298. Recent studies show that well-educated whites especially disapprove of "racial preferences" in college and university admissions. They are defensive in this regard for two reasons. First, admissions criteria and practices directly affect this group, since the limited number of freshman seats at first-, second-, and third-tier institutions has prompted the downward cascade of thousands of middle-class and affluent white students who have been prepared since preschool to matriculate at elite institutions. Contest mobility and the presumption that "the system's main task should be to select a small number of people to form a new elite" have turned universities into the object of yearning for those who seek a "general, long-duration ticket to high status that can be cashed in anywhere." Lemann, supra note 17, at 344, 347. As a result of the rigorous sorting process that has accompanied the introduction of contest mobility, upper-middle-class parents have become deeply invested in passing on this important credential to their offspring. In fact, well-educated whites are more opposed to affirmative action than poorly educated whites, even though they are more liberal on issues such as minority representation in legislatures, minority hiring for public works jobs, and minority set-asides in public contracting. Swain et al., supra note 125, at 173-74 (citing James M. Glaser, A Quota on Quotas: Educational Differences in Attitudes Towards Minority Preferences (1999) (unpublished manuscript, on file with Tufts University, Political Science Department)). <PARA'0 pt'0 pt'0 pt'>Second, as Michael Young predicted when he invented the term "meritocracy" in the 1950s, those who "win" a contest presume that the contest is fair and that they deserve to win. Lemann, supra note 17, at 343-44; id. at 344 ("Today's upper-middle-class American Mandarins have taken on this set of attitudes. The notion that they are participating (and succeeding) in a great, broad, fair, open national competition is at the heart of their idea of themselves ... .").

n299. See Brooks, supra note 58, at 52-53.

n300. See Lemann, supra note 17, at 288 ("The modern American meritocracy was set up privately, outside the purview of politics and open debate. Indeed, standardized testing for college and graduate-school admissions and its add-ons like affirmative action were probably the most consequential arrangements put in place without a public consensus behind them in late-twentieth-century America.").

n301. Contest mobility appears more fair than sponsored mobility primarily because its objective measures of "merit" hide their own consistent associations with indicia of social status, including race. See supra pp. 146-47. By contrast, sponsored mobility, while continuing to hide most of these associations, elevates a single one: race. With its lack of transparency in a decisionmaking process tightly controlled by a relatively homogeneous elite, sponsored mobility may create the perception of "preference" at the expense of "merit." The perception of preference is what Justice Souter, dissenting in Gratz, called "suspicion," which he concluded "does not carry petitioners' ultimate burden of persuasion in this constitutional challenge." Gratz, 123 S. Ct. at 2441 (Souter, J., dissenting) (citation omitted). Nor does suspicion "warrant condemning the college's admissions scheme on this record." Id. However, this perception may compromise the system's legitimacy in the eyes of the public - legitimacy that Justice O'Connor emphasized in her majority opinion in Grutter. See Grutter, 123 S. Ct. at 2341 ("All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training."). As Krieger writes: One could argue that ... what actually matters is the perception that selections are based on strong group preferences at the expense of merit-related factors. Thus, the discourse surrounding affirmative action will have more effect on public reactions to such policies than will the actual details of the programs themselves... . People's reactions to distributive choices are influenced not only by resulting patterns of distribution, but also by the perceived fairness of the procedures used in making them. The fairer the policy, the more positive the evaluations. Krieger, Perestroika, supra note 162, at 1270-71 (footnotes omitted); cf. Gerken, supra note 108, at 13 (noting the theory that "appearances do matter" in the context of jury composition and that public confidence in jury decisionmaking is tied to diversity within those decisionmaking bodies).

n302. The Court's embrace of an admissions process premised on sponsored

mobility is thus less problematic than a "colorblind" system premised on contest mobility, such as that advocated by Justice Thomas. See Grutter, 123 S. Ct. at 2365 (Thomas, J., concurring in part and dissenting in part). As Krieger writes: The "colorblindness" approach to nondiscrimination will prove ineffective because it provides neither a framework for enabling people to recognize the effects of race, gender, or national origin on their perceptions and judgments, nor the tools required to help them counteract those effects. Indeed, a colorblindness-centered interpretation of the nondiscrimination principle, coupled with well-meaning people's awareness that they do categorize along racial and ethnic lines, may exacerbate the very intergroup anxiety and ambivalence that lead to what social psychologists refer to as aversive racism. Krieger, Perestroika, supra note 162, at 1277.

n303. As discussed above, see supra note 271, Justice Thomas acknowledged the underperformance of blacks in admissions testing but seemed more willing to blame blacks rather than the institutional construct that continues the pattern of elite-driven commitments to artificial yet quantifiable forms of merit, which he decried. See Grutter, 123 S. Ct. at 2360-61 (Thomas, J., concurring in part and dissenting in part) (noting the poor performance of blacks on the LSAT and questioning whether the test is an accurate predictor of merit, but then reasoning that, "having decided to use the LSAT, the Law School must accept the constitutional burdens that come with this decision" - presumably, "race-blind" adherence to the scores).

n304. In her dissent in Gratz, Justice Ginsburg pointed to the "large disparities" that endure in the "wake of a system of racial caste only recently ended." Gratz, 123 S. Ct. at 2443 (Ginsburg, J., dissenting) (citation omitted) (internal quotation marks omitted). Citing "poverty," disparities in health care, "irrational prejudice," and "bias both conscious and unconscious," Justice Ginsburg argued that the racial groups benefiting from affirmative action "have been relegated to inferior status by law and social practice; their members continue to experience class-based discrimination to this day." Id. at 2443-45.

n305. Justice Ginsburg cited group-level racial disparities in unemployment rates, poverty levels, and health care access, id. at 2443 nn.1-3; segregation among minorities and whites in housing and education, id. at 2443 n.4; inequalities in

schools and poor performance among racial minorities, id. at 2443 n.5; employment discrimination against racial minorities, id. at 2443 n.7; discrimination in housing sales and purchases, id. at 2444 n.8; and even racial disparities in car prices, id. at 2444 n.9.

n306. See supra notes 162-163, 277-279, and accompanying text (discussing the tendency of elites to self-replicate).

n307. See supra note 252. The opinions illuminate the complex relationship between race, admissions, and the use of numbers. On the one hand, Justice O'Connor recognized the imperfection of using numbers to measure "merit," such as through the LSAT: In reviewing an applicant's file, admissions officials must consider the applicant's undergraduate grade point average (GPA) and Law School Admissions Test (LSAT) score because they are important (if imperfect) predictors of academic success in law school... . The policy makes clear, however, that even the highest possible score does not guarantee admission to the Law School... . The policy requires admissions officials to look beyond grades and test scores to other criteria that are important to the Law School's educational objectives. Grutter, 123 S. Ct. at 2332 (emphasis added) (citations omitted). On the other hand, Dennis Shields's testimony, cited by Justice Kennedy in his dissent in Grutter, illustrates the usefulness of numbers in an admissions process to help measure whether the process is meeting its own goals: "Shields generated these reports because the Law School's admissions policy told him the racial make-up of the entering class was "something [he] needed to be concerned about,' and so he had "to find a way of tracking what's going on.'" Id. at 2372 (Kennedy, J., dissenting) (alterations in original). Chief Justice Rehnquist suggested the "bad" use for numbers when he noted that "the correlation between the percentage of the Law School's pool of applicants who are members of the three minority groups and the percentage of the admitted applicants who are members of these same groups is far too precise to be dismissed as merely the result of the school paying some attention to [the] numbers." Id. at 2368 (Rehnquist, C.J., dissenting) (alteration in original) (internal quotation marks omitted). And yet the same criticism can be levied against the school's overreliance on LSAT scores, about which he finds little to fault. See infra note 309.

n308. See supra section II.A (discussing contest mobility).

n309. Although concerns about racial diversity largely drive the critique of objective admissions criteria, those criteria continue to hold sway. As a result, an admissions process infused with fealty to quantification is awkward and unstable when race is the only item under discussion. Although the Court in Gratz explicitly rejected efforts to quantify race (or at least those efforts that the Court deemed mechanistic), the same over-and underinclusive qualities that the Gratz Court perceived in the University of Michigan's point system also define the University's approach to other demographic and academic variables. To realize a truly diverse student body through a process that is both transparent and accountable, institutions like the University of Michigan need to be willing to reexamine some of their assumptions about the value of numbers in defining desirable outcomes as they relate to both traditional views of academic merit and "critical mass." But such an effort cannot depend on narrowly defending the use of race as an add-on admissions factor alone. It needs to proceed broadly to connect the resistance against racial categorization to the reductionism of people more generally, including the reduction of people to the sum of their test scores.

n310. See Grutter, 123 S. Ct. at 2333 (noting that the director of admissions at the University of Michigan Law School "asserted that she [had to] consider the race of applicants because a critical mass of underrepresented minority students could not be enrolled if admissions decisions were based primarily on undergraduate GPAs and LSAT scores"). The Law School's expert, Dr. Raudenbush, predicted that if race were not considered, "underrepresented minority students would have comprised 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent." Id. at 2334; see also id. at 2344 ("By virtue of our Nation's struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.").

n311. It is well-known that blacks consistently underperform on the hard variables. See, e.g., id. at 2360-61 (Thomas, J., concurring in part and dissenting in part); The Black-White Test Score Gap, supra note 25, at 1-4. Race makes this dynamic visible, and the commitment to the objective measures provides "hard evidence" that is then used to support racial stereotyping.

n312. To the extent the institution uses "categories" to make educational

judgments, race is arguably as viable a category as any other (and indeed necessitated by other categories in which race is embedded). Is there a difference, in other words, between taking race into account by weighing and balancing individual candidates, and using race as a category to be weighed against other categories? Some, such as Justices Ginsburg and Souter, believe there may not be a legitimate distinction between the processes at issue in Grutter and Gratz, except that the latter is open about what is being done in the former. Nevertheless, there is arguably a distinction between using race as an ascriptive and purely phenotypic category, which can be done either in a whole-person assessment or through a point system, and looking at race in the context of other information. Justice Powell's example of a school choosing among a Black Power advocate, a middle-class black, and a white artist might be an example of the latter. Alternatively, using race as a diagnostic tool to provide feedback on the institution's admissions practices as a whole also uses race not as an overinclusive ascriptive quality of an individual, but as a source of relevant information for fine-tuning or overhauling the process. Here, Justice O'Connor's discussion of Dennis Shields viewing the "daily reports" could be an example of all of the above. See Grutter, 123 S. Ct. at 2333.

n313. See infra Part IV (discussing the meaning and necessity of democratic legitimacy).

n314. See supra pp. 173-74; supra notes 240, 258, 259, and accompanying text.

n315. For example, Justice O'Connor stated that "narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks." Grutter, 123 S. Ct. at 2345. However, she offered little guidance on how to define or evaluate "good faith consideration" of alternatives. Although Justice O'Connor is broadly sympathetic to the value of diversity, her opinion does not flesh out the meaning of diversity in particular institutional settings. Her deferential approach, then, circumvents the need to develop rules to guide institutional actors or to insist on transparent procedures that hold them democratically accountable. See id. at 2366 (Rehnquist, C.J., dissenting) ("Although the Court recites the language of our strict scrutiny analysis, its application of that review is unprecedented in its deference."). In the eyes of Chief Justice Rehnquist, Justice O'Connor's deference to educators allows her to avoid interrogating through strict scrutiny the way those individualized and holistic judgments would be made.

n316. See Nicholas Lemann, Beyond Bakke: A Decision That Universities Can Relate To, N.Y. Times, June 29, 2003, 4 (Week in Review), at 14; cf. Wilkins, supra note 160, at 16 ("Contrary to the tone of much of the rhetoric ... , the most plausible account of the social purpose of higher education is not that it is a prize for those with the best high school records and test scores. Even if we concede that these criteria measure a certain kind of valuable intellectual ability, society legitimately expects more from universities than simply giving students with these talents an opportunity to enhance their skills."). See generally Wolff & Wolff, supra note 71 (comparing the social purposes of hospitals and universities).

n317. See supra note 109 and accompanying text.

n318. Graham Spanier, President, Pennsylvania State University, Remarks at the Civil Rights Project Conference (July 16, 2003) (responding to statements made by university administrators from the University of California campuses at Los Angeles, San Diego, and Berkeley, describing their various efforts to read applicant files two or three times, "norm" individual readers, and quantify variables other than race). According to one administrator, these processes have made her school's admissions choices better.

n319. See Press Release, University of Michigan, New U-M Undergraduate Admissions Process To Involve More Information, Individual Review (Aug. 28, 2003) (describing a new process enacted in response to the Court's decisions that will include "multiple levels of highly indivi-dualized review" of all applicants), http://www.umich.edu/news/index.html?Releases/2003/Aug03/ admissions; Sarah Freeman, Admission Plan Unveiled in Mich., Boston Globe, Aug. 29, 2003, at A8 (reporting that the school expects to spend close to $ 2 million to hire and train additional staff to read applications). Three important developments accompanied the announcement of this new plan. First, the school apparently modified its mission statement specifically to include its commitment to "enroll and graduate applicants who will ... contribute to the University community, the State of Michigan, and the broader society." Michigan Mission Statement, supra note 49. President Mary Sue Coleman also underscored the reason for these changes: "As a public university, we also have an important and distinctive role to provide access to students from all walks of life." Press Release, supra. Second, the school announced that the new admissions process would be subject to "regular review and evaluation over the coming months and years." Id. Jonathan Alger, Assistant General Counsel for the University, said that the policy was a "living document" that would be under continuous review. Freeman, supra (quoting Alger) (internal quotation marks omitted). Third, the school's diversity commitment now affects all

applicants. The new application for admission includes a set of questions asking all students to explain their "expected contributions to the campus community, significant intercultural experiences, or unusual life circumstances," as well as the educational background of their parents and grandparents. University of Michigan, The Application, at http://www.admissions.umich.edu/process/application/ (last visited Oct. 11, 2003). Applicants must also write an essay about how they will contribute to a campus community that is "academically superb and widely diverse," or how cultural diversity has affected them. University of Michigan, Sample Application, at http://www.admissions.umich. edu/process/application/sample-application.pdf (last visited Oct. 11, 2003) [hereinafter Sample Application].

n320. This possibility is a potential weakness that can be mediated somewhat if universities make the investment in personnel and interactive relationships to make review meaningful for all applicants. For example, Michigan's new admissions application requires all students to describe their future contributions to a diverse campus community. Sample Application, supra note 319. However, to the extent that colleges and universities obscure their admissions criteria, the elite are free to choose applicants like themselves and then legitimate those choices with a critical mass of people of color. If that is the case, working-class whites and poor people of all colors will continue to be underrepresented in these institutions because sponsored mobility, which uses race and class selectively to diversify an admissions pool that otherwise remains highly skewed toward the affluent, is under no obligation to keep up with increased demand from a more racially and economically diverse age cohort at a time of declining public revenues that lead to tuition hikes and less money for financial aid. See supra note 61 and accompanying text; sources cited supra notes 65-66, 138-139, 142, and accompanying text. This is not the fault of affirmative action. It is the fundamental flaw of a sponsored mobility approach to admissions, and it occurs at the settled core of decisionmaking, not along the margins.

n321. See Grutter, 123 S. Ct. at 2342 ("Universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission. Universities can, however, consider race or ethnicity more flexibly as a "plus' factor in the context of individualized consideration of each and every applicant." (citation omitted)).

n322. See id. at 2346 (stating that "the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to

determine whether racial preferences are still necessary," and that universities should "experiment[] with a wide variety of [race-neutral] alternative approaches").

n323. See id. ("The acid test of [affirmative action programs'] justification will be their efficacy in eliminating the need for any racial or ethnic preferences at ... all." (citations omitted)). As former Harvard President Derek Bok states, the twenty-five-year expectation is "more than simply a reminder of the necessity of reevaluating race consciousness; it is a warning to do something about the underlying problem." Bok, supra note 24.

n324. See supra p. 195.

n325. Or it may be that the Court intentionally avoided defining diversity because it agreed with Justice Thomas's assertion that diversity is primarily an aesthetic value rather than a functional value. See Grutter, 123 S. Ct. at 2352 n.3 (Thomas, J., concurring in part and dissenting in part) ("I refer to the Law School's interest as an "aesthetic.' That is, the Law School wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them."). Perhaps, as with obscenity, Justice O'Connor knows diversity when she sees it. Cf. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J. concurring) (stating, with regard to pornography, "I know it when I see it"). Or, as with obscenity, the Court may want local communities to articulate their own standards of diversity within the framework of broad legal standards set by the Court. Cf. Miller v. California, 413 U.S. 15, 24-26 (1973) (leaving it to states to define obscenity within the limits of the Court's three-part test, which referred to "contemporary community standards"). The idea of leaving responsibility at the local level also connects to notions of individualism, as contemplated by James Conant. Conant hoped a class of "American radicals" would arise to revitalize the post-World War II United States. The American radical, he wrote, "will favor public education ... . By the same token, he will be forever harping on the dangers of Federal control of institutions concerned with youth." James B. Conant, Wanted: American Radicals, Atlantic Monthly, May 1943, at 41, 43.

n326. See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 290 (O'Connor, J., concurring in part and concurring in the judgment) (stating that voluntary self-correction is valuable to further the objectives of the law, in part "because of the example [an institution's] voluntary assumption of responsibility sets").

n327. Justice O'Connor mentioned toward the end of her Grutter opinion that universities may look to the admissions experiments going on in states like California, Washington, and Florida, where race-conscious admissions have been outlawed, to find new, race-neutral ways of achieving the goal of diversity. Grutter, 123 S. Ct. at 2346. Both California and Florida use percentage plans. Id. at 2345. Justice Souter's dissent in Gratz asserted that percentage plans, while "just as race conscious" as the University of Michigan's point system, are constitutional. Gratz, 123 S. Ct. at 2442 (Souter, J., dissenting). This statement suggests that Justice Souter sees the Grutter rationale as applying only to systems that use race as an explicit criterion.

n328. Indeed, institutions are free to consider race in any or all of these ways, as long as race is not singularly outcome-determinative. However, as Dean Lehman testified in Grutter, race may in fact "determine" the outcome in some cases. See Grutter, 123 S. Ct. at 2334 ("In some cases, according to Lehman's testimony, an applicant's race may play no role, while in others it may be a determinative factor." (internal quotation marks omitted)).

n329. Id. at 2332.

n330. See Carnevale, supra note 11; see also supra note 61.

n331. See Lempert et al., supra note 136, at 457 (describing the 1970s affirmative action beneficiaries as "pioneers" with an unusual commitment to service, mentorship, and community leadership that appears to "reflect a genuine cohort effect"); id. ("On every measure ... examined, minority graduates of the 1970s do more than minority graduates of the succeeding decades.").

n332. Given state fiscal crises and shrinking state budgets, financial support for public colleges may "float more toward local and regional sources." Greg Winter, Private Gifts Bring a Public College to Town, N.Y. Times, Aug. 3, 2003, at A1 (quoting Travis Reindl, director for state policy analysis at the American Association of State Colleges and Universities) (internal quotation mark omitted). In addition, the involvement of local communities is characteristic of self-reflective

practice. For example, Jennifer Gordon, in describing the democratic values of what she calls a "new governance" approach to public problem solving, writes that such practices "bring[] a variety of stakeholders together to collaborate on developing solutions to problems in the local context in which they arise, rather than relying on formal, state-articulated rights." Jennifer Gordon, New Governance Models, New Roles for Rights: Lessons from the Underground Economy 4 (Nov. 4, 2002) (unpublished manuscript, on file with the Harvard Law School Library); see also infra notes 368, 391.

n333. These reform efforts need to be national because no one wants to go at it alone. They also need national support because many of the conditions underlying the current crisis are structural and beyond the capacity of any single institution to resolve. See infra notes 368, 391 (describing the importance of sharing information across institutional and state lines). For example, Stanley Fish describes a crisis in public higher education exemplified by the University of Illinois at Chicago, where applications have increased by thirty percent while government funding has diminished. Stanley Fish, Colleges Caught in a Vise, N.Y. Times, Sept. 18, 2003, at A31. The university's expenses now exceed tuition by a factor of three to one, yet public funds cover just twenty-five percent of the university's operating costs. Id. Fish decries Republican efforts to introduce legislation that would cut federal funding to colleges whose tuition hikes are more than twice the rate of inflation. Id. The bill's sponsors, Fish complains, want universities to operate more like businesses in terms of efficiency but do not want them to act like businesses by adjusting prices in response to changing conditions. Id. In addition, reform efforts need to be national to make college more affordable and more accessible. Whereas many current state initiatives simply "make people who are already going to attend more comfortable with the expense," federal government subsidies can "introduce new people into the system." Beth Potier, Who Goes to College?, Harv. Univ. Gazette, Sept. 25, 2003, at 13 (quoting economist Bridget Terry Long, who studied the merit-based Georgia HOPE scholarship and found that eighty percent of its beneficiaries would have attended college anyway) (internal quotation mark omitted); see also Sam Dillon, Public University in Ohio To End Instate Tuition Break, N.Y. Times, Apr. 5, 2003, at A9 (describing the declining government support for public education that led Miami University in Ohio to increase its tuition for instate residents). Although state tuition increases may be accompanied by additional scholarship awards, tuition increases will make many poor students reluctant to apply "because low-and moderate-income students tend to pay more attention to a university's sticker price than to the financial aid that is available." Id. (citing Joni E. Finney, Vice President of the National Center for Public Policy and Higher Education).

n334. Bok, supra note 24. The problem is not just that black and Latino students

are underrepresented in colleges and law schools; these students are also seriously underrepresented among high school graduates nationwide. See Diana Jean Schemo, Graduation Study Suggests That Some States Sharply Understate High School Dropout Rates, N.Y. Times, Sept. 17, 2003, at B9 (describing a study finding that only half the black, Latino, and American Indian students in the class of 2001 left high school with diplomas).

n335. Diana Jean Schemo, Chapel Hill Campus To Cover All Costs for Needy Students, N.Y. Times, Oct. 2, 2003, at A18 (quoting James Moeser, Chancellor of the University of North Carolina at Chapel Hill) (internal quotation mark omitted) (discussing the school's new policy to cover all college expenses for poor and working-class students).

n336. Racial literacy was at work in the development of the Texas Ten Percent Plan. The designers of the Plan picked race as the initial lens through which to examine the larger institutional, political, and economic structures within the communities served by the state's flagship schools. Although the TTP's designers started with race, they ultimately invited inquiry into the interdependence of race, class, and geography to restructure access to educational opportunity for large numbers of people. If institutions do not understand this interplay, broad-based access to higher education will be elusive. Cf. Shaw v. Reno, 509 U.S. 630, 646 (1993) (noting that "the legislature is always aware of race when it draws district lines, just as it is aware of age, economic status, [and] religious and political persuasion"). Compare B. Forest, Hidden Segregation? The Limits of Geographically Based Affirmative Action, 21 Pol. Geography 855, 855 (2002) (arguing, based on the experience at Texas A&M, that "there may simply be no adequate proxy for racial identity other than racial identity," despite efforts by states to use geography as a proxy for race through percentage plans), with Torres, supra note 198 (manuscript at 12) (suggesting that UT Austin's uniquely aggressive recruiting through scholarship aid successfully helped to create a "broad and deep version of diversity" that spanned race, class, and geography). The TTP was also broadened to include working-class and poor whites, as well as rural and urban residents, given the mandate of the Hopwood decision. However, the TTP specifically avoided converting the demographic category of race into an outcome-determinative numerical metric. As evidenced in Grutter and Gratz, the use of numbers that are explicitly linked to race reveals the otherwise unspoken premises of contest and sponsored mobility, inviting, albeit unfairly, the charge of quotas, racial balancing, or racial segregation. See, e.g., Grutter, 123 S. Ct. at 2342 ("[A] "quota' is a program in which a certain fixed number or proportion of opportunities are "reserved exclusively for certain minority groups.'" (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 496 (1989))); id. at 2368-69 (Rehnquist, C.J., dissenting) (concluding that racial balancing, not "critical mass," was the Law

School's aim); id. at 2350 (Scalia, J., dissenting) (discussing "universities that talk the talk of multiculturalism ... but walk the walk of tribalism and racial segregation").

n337. These factors include the skyrocketing tuitions of state colleges, the shift from scholarship aid to loans, the pressure on students to borrow more to pay for college, and the resulting skew in the jobs they can afford to take upon graduation. See sources cited supra notes 65-66 and accompanying text; supra notes 332-333. As a result of these factors, higher education is not a level playing field - not only for blacks and Latinos, but also for working-class and even middle-class whites. See supra p. 148.

n338. See, e.g., The Connection, supra note 9 (explaining, through guest Patrick Callan, President of the National Center for Public Policy and Higher Education, that the shift in thinking about intergenerational obligation has led to dramatic tuition increases at state universities such that parents can no longer afford for their children to attend).

n339. See Kornhaber, supra note 48 (noting that a commitment to training leaders who then serve society originated with American public institutions of higher education and remains one of the seminal contributions of American public higher education "to all universities public and private, here and abroad" (citing Bok, supra note 50)).

n340. Lemann, supra note 17, at 345.

n341. Id. at 347. There is a "crush at the gates of selective universities" precisely because "people believe admission can confer lifelong prestige, comfort, and safety, not just access to jobs with specific functions." Id.

n342. Id. at 348.

n343. To understand more fully the relationship between higher education and public service, racially literate decisionmakers could study the challenges facing men and women of color generally. They would learn, for example, that race has been a key factor in ongoing black-white mobility gaps. See Hertz, supra note 119 (manuscript at 15) (noting that "differences in years of parental schooling do not explain much of the race-based mobility gap"). They would also learn that, with the exception of historically black colleges, the military has made the greatest inroads in reshaping the trajectory of opportunity for blacks and Latinos. See supra note 232. The military has become the educational engine for racial integration and socioeconomic mobility in the name of national service. Educational opportunity is otherwise limited for most blacks and Latinos, who rarely comprise a critical mass even on college campuses that practice affirmative action. The demographics of the military also highlight the declining commitment to service among the more affluent members of society. Those who can afford college tuitions on their own apparently have no reason to enlist. Halbfinger & Holmes, supra note 232 ("In World Wars I and II, the British nobility had a higher killed-in-action rate than the working class... . But the officer corps today does not represent American nobility. These are not people who are going to be future congressmen or senators. The number of veterans in the Senate and the House is dropping every year. It shows you that our upper class no longer serves." (quoting Charles C. Moskos, Professor of Sociology at Northwestern University) (internal quotation marks omitted)). Because it connects service to both educational opportunity and equal opportunity, the military provides important evidence to justify bold action. By providing a financial and ideological link between higher education, equal opportunity, and public service, civilian institutions can likewise mobilize public support to fill the gap left by the withdrawal of government aid to colleges and universities.

n344. See supra sources cited notes 64-67; supra notes 68, 333.

n345. The relationship between context and merit, and between institutional mission and admissions criteria, is the subject of an increasingly rich scholarly debate. One question many scholars have recently addressed is whether merit is stable or whether it is responsive to environmental conditions and institutional objectives. Richard Banks, for example, effectively argues that "merit is a functional concept" that "is necessarily defined with respect to particular contexts, goals and values." Banks, supra note 124, at 1034. Charles Lawrence proposes that universities redefine merit "by asking which students will best serve the university's goal of changing conditions of inequality." Lawrence, supra note 166, at 932. Similarly, Pamela Karlan argues that universities, in order to fulfill their mission, must look beyond grades and test scores to admit candidates who will improve the quality of education through their diverse perspectives and who will serve society through their leadership. Pamela Karlan, Easing the Spring: Strict

Scrutiny and Affirmative Action After the Redistricting Cases, 43 Wm. & Mary L. Rev. 1569, 1597 (2002). Another, deeper question up for debate is whether merit measures absolute or marginal outcomes. Banks, for instance, argues for a relative-achievement conception of merit that considers socioeconomic background, in part because low-income students benefit far more from attending elite institutions than their high-income counterparts. Banks, supra note 124, at 1055 ("Lower socioeconomic status students reaped greater earnings benefits than higher socioeconomic status students from attending high status colleges."). Banks also suggests that low-income students gain more productivity from higher education, thus benefiting society more. Id. at 1049-56. Scholars acknowledge that this approach has some opportunity costs in terms of forgoing opportunities for the best-prepared students to excel in the best institutions of higher learning; however, they point out that the present system also has opportunity costs in terms of failing to educate students who may reap the best "rate of return" from their education. They propose that at least some portion of our elite higher education resources should be redirected to those who most need those resources, and that universities should reconfigure their missions to focus more on marginal utility than on polished performance. Wolff & Wolff, supra note 71, at 45-47, 60-63; see also Dweck, supra note 107 (arguing that learning is premised on a student's belief in the malleability of ability). The bottom line, as Linda Krieger argues, is that "some conception of merit is essential for any public institution faced with the task of distributing scarce and valued resources. That said, the concept of merit cannot be taken at face value." Krieger, Perestroika, supra note 162, at 1293.

n346. Keith W. Olson, The G.I. Bill, the Veterans, and the Colleges 110 (1974) (suggesting that society as a whole benefited from the GI Bill's "increased government support of education, especially for minority groups who required assistance"); see also supra notes 192, 232, 343, 345.

n347. I would characterize the undergraduate policy rejected in Gratz as an efficient form of sponsored mobility. The policy seemed animated by the efficiency concerns of contest mobility to protect the institution's selectivity while engaging in a more holistic review that is generally associated with sponsored mobility. It is not consistent with structural mobility because individuals were not assured admission based on their past or future service, because the criteria were not developed interactively as part of a public conversation, and because the policy treated race, class, and geography as isolated variables instead of acknowledging the relevant interplay among these criteria. Indeed, the criteria appeared to be arbitrarily assigned in ways that did not allow grassroots organizations or others to provide accountability, information, feedback, or public support. One could conceivably argue, however, that the policy was a weak form of structural mobility, since the admissions index considered individuals within the context of

their communities and accordingly awarded points for class (20 points for socioeconomic disadvantage or attendance at a predominantly minority high school), race (20 points for membership in an underrepresented minority group), and geography (10 points for residence in Michigan, and another 6 points for residence in an underrepresented Michigan county). See Final Brief of Appellees at 8-10, Gratz v. Bollinger, 309 F.3d 329 (6th Cir. 2001) (Nos. 01-1333, 01-1418, 01-1416), http://www.umich.edu/ urel/admissions/legal/gratz/gratz appeal.html.

n348. See Sullivan, supra note 16, at 1040 ("Education has remained a sphere in which forward-looking functional or distributive justifications remain constitutionally sufficient, independent of past sins of discrimination."); see also supra note 319 (describing Michigan's post-Gratz admissions policy, in which diversity considerations now affect all applicants).

n349. See Expert Report of Claude M. Steele, Gratz v. Bollinger, 135 F. Supp. 2d 790 (E.D. Mich. 2001) (No. 97-75321), Grutter v. Bollinger, 135 F. Supp. 2d 874 (E.D. Mich. 2001) (No. 97-75928), http://www.umich.edu/urel/admissions/research/expert/steele.html ("Experiences tied to one's racial and ethnic identity can artificially decrease standardized test performance."); see also Cohen et al., supra note 27, at 1302-18.

n350. See Bradley W. Joondeph, Note, Killing Brown Softly: The Subtle Undermining of Effective Desegregation in Freeman v. Pitts, 46 Stan. L. Rev. 147, 166 n.134 (1993).

n351. For example, race helps us see that even when institutions supplement quantitative measures with subjective criteria, presumably to enhance predictive value or to achieve additional educational or democratic goals, they are still only making educated guesses. Sturm & Guinier, supra note 79, at 1003-08 (describing the false promise of prediction); see also Michigan Mission Statement, supra note 319 (announcing the University of Michigan's new admissions policy and describing admissions as "more art than science"). Only a very loose fit exists between evaluative criteria and outcomes; the relationship between signals and skills is modest at best. Wilkins, supra note 160, at 18 (stating that "a combination of the subjectivity of quality assessments and the fact that those who are being hired have yet to develop the skills and dispositions that the employer is seeking make it likely that the fit between credentials and social purposes will be relatively loose"); see also supra pp. 147-49; infra note 363.

n352. See Krieger, Perestroika, supra note 162, at 1297 (citing Sik Hung Ng, Equity and Social Categorization Effects on Intergroup Allocation of Rewards, 23 Brit. J. Soc. Psychol. 165 (1984)) ("The fairness rules chosen to govern the allocation of social resources, including those grounded in conceptions of merit, are not preordained manifestations of natural law. They are social, ultimately political decisions, subject to the same forms of intergroup bias that influence reward allocation in other intergroup contexts.").

n353. Lemann, supra note 17, at 347. The idea that people should be chosen "for their general worth, as if they were an updated Puritan elect," rather than for their suitability for specific roles, "is an idea we should abandon." Id.

n354. Id. at 26 (describing the origins of the meritocracy). Democratic merit thus responds to critics like Lemann who claim that contest and even sponsored mobility use higher education to select a small governing elite. See id. at 349-50. Democratic merit would develop over time. It would not simply rely on experts to supply democratic justifications through their choices. Rather, it would seek to open up other opportunities to provide the public with justifications that would be more honest because they would involve participants justifying choices to each other.

n355. See supra notes 48-49 and accompanying text; sources cited supra notes 50-55 and accompanying text.

n356. See Michael S. Greve, A River Runs Dry, Pol'y Rev., Apr.-May 1999, at 81 (reviewing Bowen & Bok, supra note 96) ("Public universities, at least, have a democratic or (in James Q. Wilson's phrase) "representational' function. We do not like public institutions that serve only a select few."); cf. David Adamany, Science and the Urban University, 221 Sci. 427, 430 (1983) ("[A] corporate patronage system for public universities flies in the face of this nation's democratic impulse to make its public institutions genuinely independent of private persons and entities." (emphasis added)); Kornhaber, supra note 48, at 2 (noting that admissions policies that exclude growing portions of the population from selective public colleges and universities may well generate a backlash against selective public higher education).

n357. See Amy Gutmann & Dennis Thompson, Democracy and Disagreement 31-35 (1996) (arguing that a democratic process needs to be constituted democratically). Diverse decisionmaking processes, such as those involved in assembling representative juries, produce a "broad range of democratic outcomes" and can be a means of "measuring community norms." Gerken, supra note 108, at 5-6. These processes provide a "new paradigm for thinking about democratic fairness" and offer "citizens a wide variety of participatory experiences." Id. They can also provide a "safety net in a world where it is difficult to determine where communities divide and whether we ought to recognize those divisions." Id. A racially literate process uses multiple sources of information to generate effective problem-solving approaches, to hold the institution accountable to a diverse group of constituencies, and to provide institutional decisionmakers with the most reliable and inclusive bases of knowledge before they act. The commitment to racial literacy also requires institutions to assemble their decisionmakers based on a theory of representation that values participatory and ongoing relationships with the institution's many constituencies; representativeness is not conveyed simply through strict demographic categories. See Guinier & Torres, supra note 28, at 220-22 (arguing that theories of representation that depend simply on synecdoche, such that the part stands in for the whole, result in a system in which representation becomes a performative act rather than a relationship through which the represented choose their representatives and continue to interact with them even after they are selected).

n358. Universities are more likely to garner public support to the extent they fulfill their larger public service obligations. As former Cornell University President Frank H.T. Rhodes argues, today's universities can fulfill these obligations by experimenting with, testing, and developing demonstration models, and by assisting in outreach programs to communities in need without dictating their results. See Frank H.T. Rhodes, The Creation of the Future: The Role of the American University 195-97, 205 (2001). In this way, they can build on the model of the Morrill Act of 1862, which "set the stage for the most distinctive and most successful example of public service by American universities." Id. at 195; cf. Wolff & Wolff, supra note 71, at 42 (suggesting that, like hospitals, universities should determine who will benefit most from their resources, rather than who is closest to "perfect educational health").

n359. Educational institutions could convene "citizen juries," or deliberative polls, both to get a sense of what they should look for in applicants and to garner some credibility in communities that might be suspicious of their motives and

processes. See infra note 392.

n360. See supra note 188 (defining the term "stakeholder").

n361. In fact, the Court in Grutter found notable the inclusion of educators and administrators in formulating the Law School's admissions policy. Justice O'Connor drew attention to the fact that the dean of the Law School, in crafting the admissions system, turned to a faculty committee to draft a policy consistent with the Law School's mission and the Bakke decision, and subsequently asked the full faculty to adopt the committee's findings. Grutter, 123 S. Ct. at 2331.

n362. According to Justice O'Connor, race demands oversight. See id. at 2345 ("Even remedial race-based governmental action generally "remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.'" (quoting Regents of University of California v. Bakke, 438 U.S. 265, 308 (1978))); see also Sunstein, supra note 244, at 209-13 (arguing that our natural tendency toward conformity, social cascades, group polarization, and even error is heightened in settings in which racial and informational diversity are limited and dissenting voices are not systematically included).

n363. To the extent that rules are less visible to participants, and the process of judging less accountable, such rules are likely to be less "meritocratic" and more self-replicating. See Wilkins & Gulati, supra note 8, at 1678 n.287; see also Galen V. Bodenhausen & Robert S. Wyler, Effects of Stereotypes on Decision Making and Information-Processing Strategies, 48 J. Personality & Soc. Psychol. 267, 281 (1985) (discussing a study of various test subjects' reactions to hypothetical transgressors of various ethnicities, and concluding that the study "seems to confirm intuitions that persons often remember information better when it is consistent with stereotypes they have formed"); Russell H. Fazio et al., Variability in Automatic Activation as an Unobtrusive Measure of Racial Attitudes: A Bona Fide Pipeline?, 69 J. Personality & Soc. Psychol. 1013, 1019 (1995) (describing a study showing that white people, unconsciously and automatically, have an easier time associating good adjectives and characteristics with pictures of whites than with pictures of blacks); Michael J. Sargent & Ashley Theil, When Do Implicit Racial Attitudes Predict Behavior? On the Moderating Role of Attributional Ambiguity 18 (n.d.) (unpublished manuscript, on file with the Harvard Law School Library) (finding that "implicit racial attitudes may predict behavior, provided that

the behavior can be attributed to a socially acceptable [that is, nonracist] motive"); cf. Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 546-53 (2001).

n364. A meaningful process would not simply invite the relevant stakeholders to the table, but would foster "deliberative equality" among participants so that traditionally marginalized members of the deliberative body have an opportunity to participate meaningfully in the process. Meira Levinson, Challenging Deliberation 17 (Aug. 8, 2003) (unpublished manuscript, on file with the Harvard Law School Library); see Gordon, supra note 332, at 9, 69-70; Lawrence, supra note 166, at 965 (calling for a "transformative politics" that "helps the privileged comprehend the profound costs associated with inequality"); see also Guinier & Torres, supra note 28, at ch. 5 (arguing that a democratic process should not reproduce power asymmetries); Gerken, supra note 108, at 35 (emphasizing the importance of granting minorities decisive power as a means of signaling trust and respect, in addition to vindicating democratic principles); cf. Samuel R. Sommers & Phoebe C. Ellsworth, White Juror Bias: An Investigation of Prejudice Against Black Defendants in the American Courtroom, 7 Psychol., Pub. Pol'y & Law 201, 209 (2001) (describing a study of white jurors' attitudes toward black defendants in interracial trials, and finding that "when [they] are not reminded or pressed by situational cues to avoid prejudice, White people often let down their guard and demonstrate bias").

n365. To the extent that diverse students are "allowed in" but pedagogical tools remain static, institutions run the risk of fostering "detached learning" and "perspectivelessness." See Kimberlee Crenshaw, Foreword: Toward a Race Conscious Pedagogy in Legal Education, 11 Nat'l Black L.J. 1, 2 (1989) (describing the problems faced by students of color who feel they must "check their identities at the classroom door" in traditional classrooms). See generally Susan Sturm & Lani Guinier, Learning from Conflict: Thoughts on Teaching About Race and Gender, J. Legal Educ. (forthcoming 2003).

n366. Racial literacy's attention to the complexities of "diversity" and associated institutional and process values is sympathetic to the work of critical race theorists who remind us that race must remain in view. See Cheryl Harris, Mining in Hard Ground, 116 Harv. L. Rev. 2487, 2534 (2003) (book review) ("Race and class are simultaneously distinct and mutually constitutive. It is thus necessary to account for the ways in which race is not simply something that obscures class relations, as well as for the ways in which race has structured class relations and class relations in turn have structured race. Translating this interplay into an intervention that

takes account of such complexity is no easy task, but we cannot simply adopt a view that reduces race to a politically useful point of departure."); cf. Bobo, supra note 28 (focusing on "inclusion" rather than "diversity," and articulating a set of values that could mobilize Americans to support racial justice in higher education). For a more thorough analysis of how race functions as a way to keep track of progress, not just as an evidentiary and analytic tool, see Guinier & Torres, supra note 28.

n367. Cass Sunstein, in surveying the literature on the effects of engaging a diverse set of participants in deliberative processes, concludes that "when the underlying tasks are complex and call for a degree of creativity, dissenting views and a measure of conflict about how to perform those tasks lead to better outcomes." Sunstein, supra note 244, at 135 (citing Karen A. Jehn, A Multimethod Examination of the Benefits and Detriments of Intragroup Conflict, 40 Admin. Sci. Q. 256, 260 (1995)). Sunstein goes on to note that "diversity of information" is the "crucial variable" in generating "effective performance" of certain tasks, id. at 136, and that lack of diversity might "squelch the creativity" of the group. Id. (quoting Jehn, supra, at 260) (internal quotation mark omitted).

n368. See infra note 370. By fostering a variety of local outcomes, experimentation helps to "minimize error," "signals a reluctance to indulge in absolutes," and "acknowledges that our identities are multiple and complex." Gerken, supra note 108, at 42-43. The goal is to engage in long-term research and to promote the disciplined pooling of information from multiple local sources in order to establish expectations of what is possible and to ultimately scale up local innovations into regional or national reforms that coordinate, but do not control, best practices. The idea is not to develop an ultimate or universal solution, but to generate principles against which to evaluate particular initiatives, to reason back from those principles to develop particular practices, and to generate from those practices visions and goals. This form of learning borrows from the concept of benchmarking, but without adopting the goal of measuring institutional choices with uniform rules or formulas imposed from above. See Gordon, supra note 332, at 45 (citing Susan Sturm's analysis of participatory decisionmaking in the workplace and Archon Fung's "street level democracy" in the context of school reform and community policing); id. at 4 ("Rather than assigning to government the sole responsibility for establishing and enforcing strict rights, the new governance model asks the state to facilitate and finance local experimentation with solutions to complex problems, and then to evaluate and compare the outcomes of the resulting innovations."); cf. Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267, 287 & n.64 (1998).

n369. Transparency allows the educational judgments of institutional actors and experts, as well as the judgments of local community supporters, to influence the admissions choices being made. It also allows the public to understand those choices. As part of this process, community business and political leaders, administrators, faculty, and students might deliberate, investigate, and experiment with locally imagined ways to develop allocative principles, while keeping race in view. Cf. Sturm, supra note 46, at 280-83 (describing a process of problem solving, innovative collaboration, and continuous information gathering); Sturm & Guinier, supra note 79, at 1026 (stating that race "can serve as a continual check or constraint on decision makers' impulse to revert to one-size-fits-all approaches to selection"); id. at 1028 (noting that "ignoring patterns of racial exclusion causes these patterns to recur and dominate"). Such interaction may then lead universities to adopt flexible practices that serve not only the academic and democratic missions of higher education, but also the needs of the community. See Dorf & Sabel, supra note 368, at 283-84 (discussing a new form of governance in which power is decentralized, enabling citizens to use their local knowledge to find innovative solutions to their circumstances, and in which coordinating bodies at the regional and national levels share this collective knowledge with others facing similar situations); supra Part II (describing three alternative conceptions of mobility); see also infra Part V (describing local experiments that engage this conversation). For a description of admissions standards that would ultimately "involve a more wide-ranging, normative revision in the notion of the university's social role and proper function," see Sullivan, supra note 16, at 1043.

n370. Sturm, supra note 46, at 325 (internal quotation marks omitted). Grutter combines an insistence on a continuous process of self-reflection through review of narrowly tailored alternatives, with an end date that catalyzes experimentation, periodic feedback, information sharing, and more robust accountability. In other words, the presence of an end goal, however cryptic, might be a reason to characterize the opinion as explicitly experimentalist. Cf. Gordon, supra note 332, at 4, 70 (identifying experimentation as a key value of the new governance model of democratic problem solving).

n371. Such research permits universities to share the results of their experiences with other institutions and to reflect on the effects of their choices over time. It also enables them to heed the Court's admonition to review continuously whether their admissions processes are narrowly tailored to their public and educational goals. Cf. supra notes 362, 368, 369; infra note 375.

n372. See, e.g., Lt. Col. (Ret.) Michael Lee Lanning, The African-American

Soldier: From Crispus Attucks to Colin Powell 214 (1997) (noting that blacks who sought to take advantage of the educational benefits offered by the GI Bill found that most colleges refused to admit them, and that blacks similarly could not take full advantage of GI mortgages because of segregated housing); David H. Onkst, "First a Negro ... Incidentally a Veteran": Black World War Two Veterans and the G.I. Bill of Rights in the Deep South, 1944-1948, 31 J. Soc. Hist. 517 (1998) (documenting the inability of black World War II veterans in the Deep South to obtain any of the GI Bill's four major entitlements).

n373. An institution dedicated to linking the concept of democratic merit to its educational and public missions, including a commitment to racial diversity, would regularly review and seek feedback on its admissions program and public agenda, guided by several sets of questions: <PARA'0 pt'0 pt'0 pt'>First, does the institution award opportunity broadly, or is diversity an add-on that is reflected only at the margins of the student body? Does the institution's student body reflect the interdependence of race, class, and geography in its existing and potential applicant pool? Does the institution recruit, admit, and provide financial support for students who demonstrate potential for academic achievement and public service based on a broad range of relevant measures? <PARA'0 pt'0 pt'0 pt'>Second, does a diverse group of stakeholders help to formulate, implement, and give feedback on the institution's admissions criteria? Do the decisions of these stakeholders support the institution as a public place? <PARA'0 pt'0 pt'0 pt'>Third, do graduates contribute back to the institution and the society it serves? <PARA'0 pt'0 pt'0 pt'>Fourth, do the institution's administrators and faculty serve as models for the public leadership expected of its graduates? Does the institution, for example, deploy its full panoply of resources to improve local schools? Is it working to rebuild a national commitment to higher education as a societal, not just individual, resource? Are the institution's admissions processes, curriculum, pedagogy, classroom dynamics, and mentoring opportunities consistent with its public mission?

n374. See, e.g., Karen W. Arenson, What Would Teachers Do If They Had the Chance? This, N.Y. Times, Sept. 17, 2003, at A26 (describing how Columbia University opened a new primary school in its neighborhood and designed the enrollment program with the help of community leaders who had previously criticized Columbia but who are now "thrilled"); Bollinger, supra note 20; see also Mark Levine, Ivy Envy, N.Y. Times, June 8, 2003, 6 (Magazine), at 76 (profiling John Sexton, the President of NYU, and highlighting the proactive role he has played in transforming NYU's institutional identity to emphasize the role of faculty as intellectually energetic and committed members of a community connected by a sense of shared duty to students and social usefulness).

n375. Pamela Karlan's analysis of the similarities between redistricting and admissions processes suggests that it is crucial for universities to share their experiences with one another. See Karlan, supra note 345, at 1601. A court's reaction to one university's actions can affect the options of all other universities in the same federal circuit: for example, Hopwood did not foreclose just UT Austin's affirmative action policy. Nevertheless, universities need to adopt admissions criteria that make sense with respect to their own specific circumstance. Cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 506, 510-11 (1989) ("The random inclusion of racial groups that, as a practical matter, may never have suffered from discrimination in the construction industry in Richmond suggests that perhaps the city's purpose was not in fact to remedy past discrimination." (emphasis added)).

n376. Winter, supra note 332 (quoting Robert A. Bernheimer, mayor of Indian Wells) (internal quotation marks omitted).

n377. Id.

n378. Id.

n379. Id.

n380. Elizabeth Mehren, University's "Leap of Faith" Becomes Lesson in Community, L.A. Times, Mar. 16, 2003, at A1.

n381. Id. (quoting Jack Foley, executive assistant to Clark University President John Bassett) (internal quotation marks omitted).

n382. Id. (quoting Tom Del Prete, director of Clark's Hiatt Center for Urban Education) (internal quotation marks omitted).

n383. Id. (quoting Del Prete) (internal quotation marks omitted).

n384. Id. (quoting Del Prete) (internal quotation marks omitted).

n385. Id.

n386. Id.

n387. Id. (quoting Rodrigues) (internal quotation marks omitted).

n388. Id. ("The prospect of replicating the University Park example elsewhere in the city recently helped Worcester land an $ 8-million grant from the Carnegie Corp... . These students can help generate grants and government assistance for Clark, [the University President] said, calling the generosity well worth the price.").

n389. See id.

n390. Id. (quoting Raynor) (internal quotation marks omitted).

n391. Local communities matter for many reasons. First, taxpayers directly subsidize the public institutions in their communities and indirectly subsidize private institutions through breaks such as property tax abatements, which adversely affect the resources available for public services. Cf. Gerald E. Frug, City Making: Building Communities Without Building Walls 147-48 (1999) (discussing the negative effects of tax increment financing followed by offers of tax abatement). Moreover, if universities wish to continue enjoying the autonomy

that the Court affirmed based on their important role in training democratic citizens, they must seek to be good neighbors. In other words, universities, both public and private, have obligations to the communities of which they are a part. The story of Clark University provides an example of how one university sought to meet such obligations. In addition to creating reciprocal obligations, which have real territorial aspects, local communities function as a placeholder for the concept of experimentation. Localism is one way of assuring that institutions pursue, or at least consider, multiple approaches to their democratic and educational roles. In addition, pooling and sharing information among local communities is an important means of encouraging more local experiments. See supra note 368.

n392. Gordon, supra note 332, at 5 (citing Charles Sabel et al., Beyond Backyard Environmentalism, Boston Rev., Oct.-Nov. 1999, at 4, available at http://bostonreview.mit.edu/BR24.5/ sabel.html). Many communities in the United States have experimented with "citizen juries," in which a small number of individuals, usually representing a diverse group, gather to consider a question of public policy. The juries are usually moderated by trained facilitators, and jury members hear testimony and can question witnesses. See, e.g., Jon Glass, Citizen's Challenge, Virginian-Pilot (Norfolk), Mar. 5, 1996, at B1 (describing juries of more than 200 parents, educators, business people, and retirees that convened to deliberate on the failures and successes of the region's public schools); see also id. ("The key, the groups decided, is to forge strong partnerships between the schools and the community, enabling educators to draw on the wealth of resources available from all segments of society.").

n393. Glass, supra note 392.

n394. See supra pp. 202-04 (describing racial literacy as a diagnostic tool).

n395. See supra note 327. The Court in Grutter did not question the fundamental constitutionality of "percentage plans." See Grutter, 123 S. Ct. at 2345; see also Sullivan, supra note 16, at 1052-54. In Gratz, Justice Souter suggested that such plans were not unconstitutional. Gratz, 123 S. Ct. at 2442 (Souter, J., dissenting).

n396. The TTP has been confused with other percentage plans that were imposed from above and that have not evolved through a democratic process of reflective

experimentation. Gerald Torres addresses this confusion: Critics of the "10% Plan" often lump it with the California and especially the Florida plans and frequently mischaracterize it as an assault on affirmative action. That may be true in California and Florida, but in Texas the legislation was created by African-American and Latino legislators. These legislators were historically the principal advocates of racial, ethnic, economic and geographic diversity. They were joined by far seeing rural white conservatives who saw in the 10% plan a chance to enroll a robustly diverse class at the flagship universities of the University of Texas at Austin and Texas A&M. Torres, supra note 198 (manuscript at 7). <PARA'0 pt'0 pt'0 pt'>The TTP is certainly not a panacea for all state institutions and has not been applied to The University of Texas Law School, which recruits nationally. Indeed, this limited application of the TTP both results from and demonstrates the importance of local context inherent in the dual values of a commitment to structural mobility and a process that is racially literate, democratic, and self-reflective.

n397. 1988 Ill. Legis. Serv. 85-1418 (West) (codified as amended at 105 Ill. Comp. Stat. Ann. 5/34-1.1 to -2.4b (West 2003)).

n398. See 105 Ill. Comp. Stat. Ann. 5/34-2.3b. In 1995, the state expanded the law to provide for mandatory training of LSC representatives and to revise the election procedures. The original statute had not provided for training, but community groups filled in the gaps by developing training programs for LSC members who sought them out. Archon Fung, Deliberative Democracy, Chicago Style: Grass-Roots Governance in Policing and Public Education, in Deepening Democracy: Institutional Innovations in Empowered Participatory Governance 111, 120 (Archon Fung & Erik Olin Wright eds., 2003).

n399. Archon Fung, Accountable Autonomy: Toward Empowered Deliberation in Chicago Schools and Policing, 29 Pol. & Soc'y 73, 75 (2001). Although the LSCs are "autonomous in the sense that they set and implement ... the specific ends and means toward broad public aims," they are not left "to their own devices." Id. Central offices support the LSCs by providing training and resources; they "also monitor the deliberative processes and performance outcomes of local groups." Id.; see also Fung, supra note 398, at 126 (noting that LSCs "remain dependent on central offices for various kinds of support and accountable to these offices for

both process integrity and performance outcomes").

n400. Fung, supra note 399, at 75.

n401. Id. at 78. This opportunity feeds the notion of empowerment - that participation will directly affect public policy. Indeed, community members stay involved over a long period of time with no observed drop-off in participation. Although participation levels were not particularly high, individuals from poorer school districts were as likely or more likely to participate as those from wealthier districts, and there has been little downturn in participation in the years since LSCs were implemented. Id. at 88-89.

n402. Id. at 91-92. Within individual neighborhoods, however, there is relatively higher participation by the wealthier members. Moreover, success is haphazard: some LSCs function quite well, while others are apathetic or frozen by dissension. Id. at 92, 94-96.

n403. Although lotteries may seem too arbitrary, they are already used to apportion high-stakes opportunities. See, e.g., Arenson, supra note 374 (describing Columbia University's use of a lottery to admit students from the neighborhood, which includes Harlem, to a new elementary school that it opened for the children of its faculty); Katie Zezima, Hard Work Opens College Door for Whole Class, N.Y. Times, June 4, 2003, at B8 (describing how a lottery was used to determine admission to the public high school that Clark University adopted, and noting that the only entrance requirement was residence in the neighborhood); U.S. Department of State, The Bureau of Consular Affairs, Instructions for the 2004 Diversity Immigrant Visa Program (DV-2004), at http://travel.state.gov/DV2004.html (last visited Oct. 11, 2003) (allocating 50,000 permanent residence visas each year via lottery to people with at least a high school education from countries with low rates of immigration to the United States). The very arbitrariness of lotteries can also communicate a public service message: the winners have not "earned" the right to higher education, and the losers have not been shut out because they are unqualified. Instead, winners and losers should collectively advocate for the resources to make educational opportunity widely available. But see Carnevale & Rose, supra note 2, at 27 (noting public disapproval of lotteries that might give university slots to students with lower scores or high school achievement levels than the students who would otherwise fill those slots).

n404. For a discussion of the dangers indifference poses to the redistricting process, see Earl Blumenauer & Jim Leach, Redistricting, a Bipartisan Sport, N.Y. Times, July 8, 2003, at A27.

n405. See Jay Mathews, The 100 Best High Schools in America, Newsweek, June 2, 2003, at 49, 51, 53; see also Janet Vandenabeele, International Academy Works To Prove Its Worth, Detroit News, Mar. 28, 2003, at 4D ("It's not a bunch of gifted kids. It's a bunch of average kids pushed to do well." (quoting an Academy parent) (internal quotation marks omitted)).

n406. The use of "wild cards" in admissions may well yield unexpected benefits. The infusion of at least some unpredictability into the system can provide additional data for the university as it continuously reassesses its admissions system. It may also help the university to destabilize its preference for qualities that have historically characterized its "ideal" candidates. See Sturm & Guinier, supra note 79; cf. supra note 351 (discussing the weak fit between signals and skills).

n407. See, e.g., James Traub, The Class of Prop. 209, N.Y. Times, May 2, 1999, 6 (Magazine), at 44, 46 (noting the proliferation of outreach programs designed to "expand the pool of eligible minority students" following the passage of Proposition 209 in California).

n408. See, e.g., Karen W. Arenson, Turn Around and You're in College, N.Y. Times, Mar. 24, 2003, at D1 (describing a university-high school collaboration in which twelve New York City high schools are located on campuses of the City University of New York); id. ("The students we are serving do not have the same backgrounds as many American kids ... . But if you teach them, they perform well." (quoting Dr. Michele Cataldi, principal of Hostos Lincoln Academy)).

n409. Harold S. Wechsler, Access to Success in the Urban High School: The Middle College Movement 1 (2001).

n410. See Arenson, supra note 408.

n411. See, e.g., University of California at Berkeley, School/University Partnerships, at http:// students.berkeley.edu/outreach/sup/programs.htm (last updated Apr. 14, 2003) (listing and explaining various outreach activities with different schools); University of California, Campus-Based College Preparation and Outreach Programs, at http://www.universityofcalifornia.edu/college prep/campuseo.html (last updated Sept. 9, 2003) (listing outreach activities at all of the UC campuses).

n412. According to Pamela Clute, the math professor appointed to run the Riverside program, outreach used to mean, "until about a year ago, ... fuzzy, feel-good stuff - come to the campus on Saturday, see the buildings, look at the daffodils. Now it's taken on a life of its own, and it's been put at the core of the University's existence." Traub, supra note 407 (quoting Clute) (internal quotation marks omitted); see also id. ("Clute says that by placing the program under the control of a scholar like herself, the chancellor is sending a signal to her colleagues that outreach is an academic - not merely a public relations - function of the university. There has been discussion of weighing community services more heavily when considering promotions and merit raises.").

n413. For the last twelve years, the head of Riverside's writing program has reached out into the communities that Riverside serves: "Last year, [John Briggs, the head of the writing program,] and 10 of his tenured faculty members visited 90 to 100 classrooms, and talked to 3,000 kids. "What affirmative action is supposed to be about,' Briggs says, "is making a concerted effort to increase the pool of available students, and that means better preparation and better counseling.'" Id.

n414. See id. ("What is striking ... is the extent to which Riverside, a far more humble and pragmatic institution [than Berkeley], has begun to reshape itself around the mission of expanding the pool of eligible minority students."). For further discussion of creative solutions to increase diversity at California universities, see Daniel Golden, Case Study: Schools Find Ways To Achieve Diversity Without Key Tool, Wall St. J., June 20, 2003, at A1.

n415. See Torres, supra note 198 (manuscript at 12); see also supra note 212 and

accompanying text; Press Release, Princeton University, Study: Texas "10 Percent Plan' Fails To Sustain Diversity at Flagship Universities (Jan. 23, 2003), http://www.princeton.edu/pr/news/03/q1/0123-tienda.htm ("The decline in minority admissions was less drastic at UT-Austin due to an aggressive outreach plan, the UT Longhorn Scholars program, which recruited students from high schools with relatively large economically disadvantaged and minority student bodies. Texas A&M recently implemented the Century Scholars program, modeled after the Longhorn Scholars, hoping to restore its campus diversity to pre-Hopwood levels.").

n416. See Torres, supra note 198 (manuscript at 11).

n417. See Arenson, supra note 374.

n418. See id.

n419. Id. (quoting Bollinger).

n420. Grutter, 123 S. Ct. at 2346.

n421. See supra pp. 214-15.

n422. See Grutter, 123 S. Ct. at 2346 ("The States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear." (alteration in original) (quoting United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring)) (internal quotation marks omitted)); New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

n423. See Fish, supra note 333 (describing and criticizing Republican efforts in

Congress to develop legislation to punish public universities that raise tuition to meet budget shortfalls); see also supra p. 203.

n424. Indeed, Justice O'Connor in Grutter seems to call on universities to link merit with racial considerations in an approach that is both highly individualized and flexible. In citing the strengths of the Law School admissions policy, she noted that "the hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants' talents, experiences, and potential to contribute to the learning of those around them." Grutter, 123 S. Ct. at 2331 (emphasis added) (internal quotation marks omitted). An approach that connects race with merit would not only satisfy Justice O'Connor, but would also avoid Justice Thomas's criticism regarding stereotyping and stigma because it would be neither overinclusive nor exceptionalizing.

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117 Harv. L. Rev. 113, *

Copyright (c) 2003 The Harvard Law Review Association Harvard Law Review

November, 2003

117 Harv. L. Rev. 113

LENGTH: 37877 words THE SUPREME COURT, 2002 TERM: COMMENT: ADMISSIONS RITUALS AS POLITICAL ACTS: GUARDIANS AT THE GATES OF OUR DEMOCRATIC IDEALS NAME: Lani Guinier* BIO: * Bennett Boskey Professor of Law, Harvard Law School. Many thanks to colleagues and friends David Barron, Gerald Frug, Heather Gerken, Martha Minow, Pamela Karlan, Susan Sturm, Gerald Torres, and David Wilkins, who graciously reviewed drafts of this Comment. I am confident the piece would have been much better had I been agile and deft enough to follow all of their advice. I am also indebted to the following students who ably, often brilliantly, assisted in the research, editing, and development of the ideas discussed herein: Sarah Boonin, Garrett Moritz, Elizabeth Kennedy, and Samuel Spital. Danielle Gray, Bert Huang, and Jeannie Suk read and commented on earlier drafts, generously contributing their insights and critiques. Nicole Birch, Jennifer Hochschild, Elizabeth Lambert, Meaghan McLaine, David Montejano, Janet Moran, Stacey Sublett, and Geoffrey Wyatt provided skilled research assistance or help with sources, often under enormous time pressure. I also thank the editors of the Harvard Law Review for their patience, creativity, and meticulous attention to detail. SUMMARY: ... Institutions presumably align these high-stakes moments of civic pedagogy with their educational agenda: to produce knowledge, to promote learning, and to help individuals realize their intellectual, athletic, or artistic potential. ... In the end, sponsored mobility may be only marginally better than contest mobility at allocating access to higher education in a way that is consistent with democratic principles. ... Particularly revealing is the interplay between Justice O'Connor's opinion for the Court in Grutter, upholding the University of Michigan Law School's use of race to promote sponsored mobility, and Justice Thomas's dissent, criticizing sponsored mobility while shifting between a rhetorical preference for contest mobility and an analysis that is more compatible with structural mobility. ... Given the reality that race still codes opportunity, sponsored mobility mediated through a commitment to ideas of holistic diversity is certainly more benign than contest mobility mediated through a commitment to false notions of scientific precision. ... To the extent institutions of higher education make judgments that tend to prefer those who are already privileged and then use diversity in the sense of sponsored mobility to cushion that preference, race remains a visible target that may be misused to undermine public confidence in the educational judgment of these institutions. ...

TEXT: [*114] Just as the hierarchy of the Church was the main avenue of advancement for the talented and ambitious youth from the lower orders during the medieval period, and just as the business enterprise was responsible for the nineteenth-century rags-to-riches dream ... , so the campus community has now become the principal guardian of our traditional opportunitarian ideals. 1 Every year, selective colleges and universities engage in admissions rituals to reconstitute themselves. 2 Institutions presumably align these high-stakes moments of civic pedagogy 3 with their educational agenda: to produce knowledge, to promote learning, and to help individuals realize their intellectual, athletic, or artistic potential. The moment [*115] when admissions decisions are mailed is also fraught with political consequences that reach beyond the classroom to the boardroom, the legislature, and the kitchen table. 4 At selective institutions of higher education, admissions decisions have a special political impact: rationing access to societal influence and power, and training leaders for public office and public life. 5 Those admitted as students then graduate to become citizens who shape business, education, the arts, and the law for the next generation. 6 Admissions decisions affect the individuals who apply, the institutional environments that greet those who enroll, and the stability and legitimacy of our democracy. 7 They are political as well as educational acts. 8 [*116] At the same time that higher education is considered a democratic and educational necessity to many, it remains beyond the reach of all but a few. 9 Indeed, a variety of ideological, 10 demographic, 11 economic, 12 and sociological 13 forces have converged to make seats in college very dear and the criteria for obtaining them very stringent, in ways that correlate with class, geography, and race. 14 As a result, the few who enjoy access to higher education tend to be already quite privileged, although more low-income students now seek college degrees than ever before. In short, higher education has become a "gift from the poor to the rich." 15 [*117] In the last twenty-five years, however, it is the consideration of race that has dominated the conversation about admissions to selective colleges and universities. 16 The role of race in admissions has generated public and media attention through referenda, initiatives, and court challenges. 17 The Supreme Court's decisions last Term in Grutter v. Bollinger 18 and Gratz v. Bollinger 19 are the latest and perhaps most significant evidence that race-based affirmative action was at risk until the business community, the military brass, and educational leaders rallied in its defense, filing an unprecedented number of amicus briefs with the Court. 20

In Grutter v. Bollinger, the case affirming the use of race in admissions decisions at the University of Michigan Law School, the Supreme Court recognized the relationship between equal opportunity and competence, and drew much of the Grutter opinion's energy from the public character of educational institutions and the role they play in a democracy. 21 The Court determined that diversity is a compelling governmental interest that justifies certain considerations of race. 22 The opinion is a sweet victory for those who have long championed [*118] the need to include underrepresented people of color in the educational elite. And because it embraces democratic legitimacy as a justification for diversity, the opinion also offers a long-overdue opportunity to refocus the conversation on the distributive and functional role of higher education in a democracy. Some have construed this opportunity as a warning, as Justice O'Connor's majority opinion in Grutter includes a puzzling clause stating that she expects the need for considerations of race in admissions decisions to expire after twenty-five years. 23 According to former Harvard University President Derek Bok, for example, this twenty-five-year expectation is more than simply a reminder of the need to reevaluate race-consciousness in order to satisfy the narrow tailoring element of strict scrutiny: rather, it is a "warning to do something about the underlying problem." 24 Universities, in other words, are not living up to their educational and democratic missions: they need to do more about the achievement gap that makes affirmative action necessary; 25 the environmental gap that socially isolates white students who, unlike students of color, spend most of their time with same-race friends in college; 26 and the teaching and learning gaps that disable [*119] professors from reaching out to mentor students of color. 27 At the same time, it is important to acknowledge that the appearance of sharp boundary lines in defining race is problematic for many members of the public and the Court. There is a pervasive reluctance to view race in categorical terms. 28 This resistance to racial categorization affects members of the public, not just the crusaders against affirmative action who, despite their defeat at the Supreme Court, seem [*120] to have lost none of their zeal. 29 Now, with the Court's imprimatur on affirmative action, perhaps those who still feel excluded will return the conversation to more foundational concerns about the democratic purpose of higher education. Indeed, despite the deep racial cleavages that continue to fragment our society, race has the potential to push educational and political leaders to align admissions choices with institutional mission in ways that open up access to higher education to poor and working-class whites as well as to blacks and Latinos. Properly deployed, racial literacy, or the ability to read race in conjunction with institutional and democratic structures, may enable the building of a coalition that starts a larger conversation at the point where educational selection and democratic values meet. 30 Race, in other words, reveals rather than produces the stress on institutional resources that undermines the connection between education and democracy, a connection that the Court in Grutter and Gratz recognized as essential. 31 Because race is inextricably intertwined with every period in American

history, from our founding as a constitutional democracy to current patterns of private wealth formation, it is a formidable diagnostic and sociological tool. 32 Used as a lens to peer beyond the pretense of the debate, race helps detect the deeper issues confronting public institutions of higher education. 33 [*121] In part because it is both visible and controversial, race will remain salient. 34 Yet the very salience of race extends well beyond the current controversy over whether it should be a fixed category for admissions choices. Race is the thin but highly visible edge of the wedge at the intersection of the value and scarcity of educational opportunity. Many Americans, for example, express their dissatisfaction with admissions protocols by focusing on the highly visible choices surrounding affirmative action. 35 But a more significant source of their dissatisfaction is our failure as a society to grapple with the complexity and arbitrariness of our current normative conceptions of merit. These flawed formulations of merit have failed to allocate scarce educational opportunities in a manner that is consistent with democratic values. 36 Thus, it is this overemphasis on test scores and school rankings, and not affirmative action, that leads to the exclusion of poor and working-class whites, especially those from rural areas. 37 Using race to probe the underlying inequalities in the admissions process may create surprising [*122] opportunities for grassroots coalitions that include both people of color and poor and working-class whites, and that unite urban and rural constituencies. 38 The controversy surrounding affirmative action has temporarily diverted the public's attention from a long-overdue conversation about the responsibilities of universities as engines of social mobility, producers of knowledge, and practitioners of democracy. A new public conception of race will be more likely to emerge if the civil rights community uses the Grutter and Gratz decisions to broaden the conversation about educational opportunity. Civil rights activists might seize this moment to build coalitions with working-class and poor whites by acknowledging that they too are underrepresented on selective public college campuses. After all, it was a broad coalition representing the military, business, and educational elite that created the opening for the Grutter decision. It may be that only a similar, albeit more grassroots and political, mobilization will protect that victory and begin the process of developing genuinely transformative approaches to combating the structural inequalities embedded in the admissions process. In this regard, it is useful to show the ways in which race operates in conjunction with, rather than in opposition to, class and geography. 39 The goal of this Comment is to explore the post-Grutter opportunity to move the conversation in a different direction. Race can help effect this change by linking the educational and democratic missions of public colleges and universities. 40 The Court's opinions in Grutter and Gratz change the scale of what we are confronting. They allow us to take advantage of what has emerged as a national consensus among university, business, and military leaders on the value of racial inclusiveness. 41 Indeed, these decisions may bring us closer to what Bruce

Ackerman calls a "constitutional moment" of "higher lawmaking" if they energize popular deliberation about the systemic and social purposes of higher education in a multiracial democracy. 42 Although the [*123] conversation thus far has focused on the role of race in admissions decisions, it has the potential to place "a new [agenda] at the center of American political life." 43 This Comment proceeds in five parts. Part I explores the democratic and public missions of higher education, both normatively and historically. I set the issue of college and university admissions - rather than simply affirmative action in admissions - on the table. 44 Part II examines the criteria that universities currently use to populate their classrooms, and evaluates those criteria using the normative and historical framework of Part I. I offer three different models of upward mobility for assessing these criteria: contest mobility, sponsored mobility, and structural mobility. I use these models to highlight the dominant role that upward mobility plays in understanding the democratic mission of higher education. An examination of different conceptions of upward mobility reveals that, in the university admissions context, the concept of merit is inexorably shaped by the broader public debate, or lack thereof, about the social purposes of higher education in general. Part III discusses the Supreme Court's decisions in Grutter and Gratz and attempts to situate the opinions of Justices [*124] O'Connor, Thomas, and Ginsburg in this larger framework. 45 In Part IV, I conclude that an analysis of these opinions suggests the need for a broader, racially literate conversation about the social purposes that universities fulfill. This conclusion is consistent with the forward-looking tone of Justice O'Connor's majority opinion in Grutter, as well as the warning that more must be done implicit in her expectation that race-consciousness will no longer be necessary in twenty-five years. The importance of this broader conversation also squares with Justice Thomas's skepticism about Justice O'Connor's deference to elites, as well as the reminder in Justice Ginsburg's Gratz dissent that social realities reflect huge and continuing racial disparities. Finally, Part V accepts the Court's invitation to continue this conversation about the social purpose of higher education, and concludes that universities are far from achieving equilibrium in their attempt to respond to the demands of the future while holding on to the best of the past. I argue that universities need to seek a new approach to admissions that is flexible enough to meet their own internal needs, as well as the external needs of the communities they serve. This approach should promote the widely held view of education as a means of upward mobility, legitimate the values of democracy, and use race as both a trigger and a continuous source of information for thinking about these complex issues. In addition, this approach should put the interdependence of race, class, and geography to work in conjunction with a deliberative conversation about the future of higher education. Such a "reflective conversation with the situation" 46 may enable our society to confront directly the problem of apportioning scarce public resources in ways that align the educational and democratic missions of higher education with the broader social purpose these institutions serve at the local, state, and national levels. 47

[*125] I. The Democratic and Educational Missions of Higher Education: Admissions Judgments as Political Acts Institutions like the University of Michigan depend on public support and public confidence to operate. Public commitments inform their stated mission, 48 which is deeply rooted in principles of populist education and service to society at large. 49 The mission statements of selective public universities feature three common concerns: building students' knowledge, advancing existing knowledge, and producing a cadre of future citizens and leaders who are both willing and able to serve the public good. 50 These purposes date back to the founding of the American republic. Benjamin Franklin, for example, argued that colleges should teach citizens about practical subjects. 51 Thomas Jefferson believed that public higher education should "develop both leaders and the citizens capable of monitoring them." 52 When Jefferson [*126] founded the first public university, the University of Virginia, in 1819, he had explicitly democratic principles in mind, including the education of citizens and officials, and the training of public leaders. 53 A commitment to education as a vehicle for the advancement of individual opportunity and broader democratic values was also true of the land grant colleges, which obtained public land in exchange for explicit commitments to public service. 54 This broad commitment to public service also characterizes the present-day mission statements of many elite private institutions, which use the language of "service" to anchor their educational purpose. 55 Thus, the historical guiding principle [*127] of both public and private universities has been to educate people who would then better serve society as workers, citizens, and leaders. It is this dual commitment to individual opportunity and democratic principles that the Court in Grutter embraces. 56 Although education has been linked to opportunity since the early days of the republic, higher education was originally a province reserved for wealthy white men. 57 During the first half of the twentieth century, women, Jews, and blacks were the victims of arbitrary quotas or formal exclusionary policies sanctioned by law. 58 During the 1950s and 1960s, however, legal challenges, social movements, and a participatory conception of individual rights 59 helped pressure these institutions of higher education to open their doors - albeit only a crack - [*128] to those who had been shut out. 60 Institutions that had once been bastions of elite privilege began admitting women and people of color for the first time. 61 At the same time, American society increasingly highlighted the importance of higher education to democratic values by extending the opportunity to attend college to more people. The GI Bill, Pell Grants, the Cold War, and the move to a global and information economy made higher education instrumental to our society's understanding of the relationship between an educated populace, a representative group of leaders, a commitment to public service, and national

security. 62 These developments also turned college education into a primary engine for economic and social upward mobility in the last part of the century. 63 [*129] Meanwhile, as more people saw higher education as a necessity for societal as well as individual reasons, government funding for this essential public good shrunk: states shifted resources from education to the criminal justice system, 64 the federal government cut Pell grants, 65 and state revenues plummeted, leading to higher tuition and reduced financial aid. 66 This shift in funding priorities was driven in part by [*130] an ideological shift during the Reagan era. Higher education was presented as a private benefit to be financed by the individual, 67 instead of a public good to be funded by the government. 68 As a result, higher education became a scarce, indispensable, and competitive individual resource. As more people wanted in, colleges and universities became more selective. For example, in the 1960s, The University of Texas admitted almost all of its applicants; 69 for the 2001-2002 academic year, it admitted only 64% of its applicants. 70 Similarly, for the 1949-1950 cademic year, Harvard College admitted about 64% of its 2600 or so applicants, while for the 2002-2003 academic year, it admitted less than 10% of its 21,000 or so applicants. 71 Many of these institutions valued [*131] their "selectivity" as an element of their identity or chose for other reasons not to add sufficient resources to keep up with increased interest. 72 In his book The Big Test, Nicholas Lemann recounts this change, which was prompted in large measure following World War II by James Conant, then-President of Harvard University. 73 Conant wanted to see elite institutions shift from a WASP establishment of hereditary privilege that emphasized entitlement and obligation, to a more democratic accounting that fostered an even greater sense of social responsibility and a less paternalistic view toward public service. 74 In Conant's view, such educated talent would serve the nation in exchange for support from taxpayers. But while Conant wanted to disturb the view that college was a hereditary privilege, he also desired to maintain the elite and selective status of these institutions. Consistent with Conant's vision, institutions began to seek a fair and efficient set of selection criteria that would preserve their elite status, which had been derived from association with bloodlines and reinforced by the appearance of unattainability. Institutions that once used evidence of "good character" - a proxy for privilege and wealth - switched to ostensibly more democratic indicia of merit. 75 College [*132] admissions officers began to replace the pedigreed "natural" aristocracy of Edmund Burke's world that had dominated elite higher education through the middle of the twentieth century. In the 1950s a "meritocracy" began to substitute "aptitude" for "character" (or family) as the ticket into colleges and universities. 76 Admissions would proceed from an open calculus rather than a set of private relationships. Excellence through brains, not blood, would become the basis for awarding scarce admission slots. Excellence did not simply cloak elitism, however. It was also associated with a

fairness principle, derived from scientifically designed, and thus presumably more objective, criteria. One of the primary vehicles for apportioning access to an increasingly popular yet scarce public resource was the introduction of standardized tests and other potentially objective measures of excellence; such tests enabled university administrators to compare individuals from different demographic, geographic, and social cohorts. 77 This ability to compare had been previously either unnecessary for the public institutions that admitted almost every (white male) applicant, or reserved to headmasters at private prep schools. Because of the perceived ability to manufacture objective evidence of desert, excellence became measurable. Applicants who outscored or outranked their peers on standardized aptitude tests were therefore presumed to be the most qualified, regardless of social class. 78 The premium on allocating access to higher education more democratically and meritocratically led to the development of a testing industry that now functions as one of the primary gatekeepers to upward mobility. Deciding who "deserves" to benefit from admission to selective colleges and universities now occurs within a "testocracy" that claims to sort, evaluate, and rank measurable mental aptitude. 79 The resulting [*133] test scores, together with high school grades, purport to tell us in both real and relative terms about each applicant's potential capacity, which is then deemed the most important evidence of his or her "visible, rankable" merit. 80 To maintain their elite status in terms of democratic "merit" rather than inherited privilege, these institutions had to raise the stakes. 81 Thus, applicants who receive the thick envelopes in April have higher SAT scores than their parents did a generation ago. 82 Unfortunately, along with democratic "merit" came a sense of entitlement without the sense of obligation. 83 Ambition replaced pedigree, but the public spiritedness that Conant envisioned failed to materialize. 84 During the second half of the twentieth century, the pendulum swung dramatically from subjective measures of character to objective measures of excellence; for reasons I describe in the next Part, it soon swung back to more subjective evidence of character to supplement [*134] the quantifiable standards for measuring academic merit. 85 But now character would mean motivation, work ethic, and the ability to overcome obstacles, rather than charisma, athletic skill, and the ability to fit in. Diversity rather than homogeneity became a value. 86 Moving back and forth from subjective to objective to subjective measures, the admissions pendulum never settled on a single, fixed view of merit. Without a stable template for admissions choices, shifts in the values and identities of those making the choices, as well as the process of selection itself, came to define qualification. 87 Yet the choice of who attends institutions of higher education, both public and private, has personal, institutional, and societal implications. 88 Thus, [*135] admissions decisions are both educational questions and political acts. 89

The task of constituting each class is a political act because it implicates the institution's sense of itself as a community, as well as the larger society's sense of itself as a democracy. 90 Such acts allocate resources in a way that affects those who are admitted to the institution, those who are rejected, those who fail to apply, and those who simply use the institution's selection criteria as an interpretive guide. Thus, they affect all members of society, both directly, as described above, and indirectly, by helping determine future political, economic, and social leaders. Directly or indirectly, taxpayers support these institutions, which function as gateways to upward mobility and help legitimize democratic ideals of participation, fairness, and equal opportunity. 91 At nonselective public colleges, the opportunity to attend is less a function of admissions criteria per se, and more a question of application fees and tuition costs, 92 as well as historical patterns of recruitment, information networks, social capital, and location that determine the demographics of the student body and faculty. Although the nature of the educational environment figures prominently in public discussion of these institutions, the political meaning of the admissions process is often less visible. The term "political acts" seeks to bring to the fore the public dimension, the democratic significance, and the social consequences of gaining admission to these institutions. 93 [*136] This is a descriptive argument: universities already perform an expressive, community-defining function that is not necessarily coextensive with the democratic role they "ought" to play. 94 It is also an intuition: a conversation probing the political act of admissions will trigger a much needed discussion about universities' wide-ranging public responsibilities. The term "political act" also describes inputs that inflect the process of decisionmaking, not just the outputs that help define it. Beyond the democratic significance, the social consequences, and the individual benefits of gaining admission to these institutions, admissions choices have an internal political dynamic. 95 They are located in the heads of the decisionmakers as well as in the world. [*137] II. Contest, Sponsored, and Structural Mobility: Alternative Ways of Conceptualizing the Relationship Between Education and Democracy In this Part, I explore two related aspects of admissions rituals: the process used to make admissions decisions, and the values or goals that seem to animate different views of the selection process. Starting with the goals that inform the process, I identify four important values associated with access to higher education: individualism, merit, democracy, and upward mobility. Of these four, the value that seems to integrate the other three with higher education is upward mobility. 96 Yet although upward mobility is the value most closely associated with higher education in our collective imagination, 97 all four values are closely intertwined.

Upward mobility and individualism are both core values of the American Dream; 98 they legitimate our democratic ideal of equal opportunity [*138] for all. 99 In his history of the French Enlightenment, Marshall Berman describes individualism in perhaps its most favorable light: the right to be yourself, particularly the right not to have your role or status ascribed to you, but to find it for yourself. 100 Individualism was forged in a revolt against feudalism, a system based entirely on ascribed roles. 101 Thus conceived, individualism is deeply connected to democratic ideals of opportunity and upward mobility. Likewise, mobility in America means not just moving out, but also moving up; it refers to sociological as well as geographical relocation in order to take advantage of opportunity. 102 Upward mobility also suggests that we live in a "classless" society - or at least a society in which class is floating, not fixed. 103 At the same time, higher education has built into it the idea of nobility as well as mobility. After all, universities predate the modern state - they were historically limited to an elite. Higher education grants upward social mobility because it is a status marker, not merely a private contract that matches one's skills with an appropriate educational setting to enhance one's learning. [*139] In our society education means opportunity, higher education offers heightened opportunity, and elite higher education confers not just heightened opportunity, but also elevated status. 104 Admissions officers may not view themselves as the "sorting hats" of our society, 105 but many Americans construe the fat or thin envelopes mailed in April as serving just this purpose. Like upward mobility and individualism, meritocracy formally rejects ascribed roles, awarding opportunity based on individual merit rather than inherited status. 106 Those who succeed are presumed to be those who do their best because of effort, not birth. Meritocracy also associates selectivity with excellence. The opportunity to choose among many qualified applicants not only confers status; it automatically connotes merit. Indeed, merit has two ideas of mobility built into it. It suggests criteria for identifying individual capacity for upward mobility. It also suggests the potential to change individual capacity [*140] through educational opportunity 107 - the opportunity to learn in an environment that values excellence, and the opportunity to learn after graduation as the educational credential opens economic and political doors. Democratic values can help shape the allocation of opportunity and status. To the extent principles of fairness, participation, and accountability influence the selection process, they affirm the importance of equal opportunity and push institutions to produce a representative, or at least diverse, set of leaders and influential policymakers. 108 When principles of democracy inform the mission of public institutions, they encourage decisionmakers to train a public-spirited citizenry, especially at law schools. 109 Democratic values may also define the educational process itself. To play an active role as a citizen or leader requires the capacity to deliberate, listen critically, and become informed. 110 The presumption that one develops these skills in educational settings highlights the importance of

adhering to democratic ideals within such institutions. The different processes that educational institutions employ to navigate these goals, however, reveal that the goals are often mutually inconsistent. Individualism, for example, is in tension with a democratic commitment to equal opportunity; not all who have been disadvantaged by reason of their group status benefit equally when some group members are treated as individuals. 111 Moreover, when taken to extremes, individualism can be a divisive force, driving people to find [*141] comfort in racial stereotyping and animosity, which becomes the only respectable reason for their own failures. 112 If "right living and hard work do lead to success," then those who fail have no one to blame but themselves - an uncomfortable conclusion. 113 Stuck in dead-end jobs, denied access to selective institutions, or frustrated that they cannot pass on their own privileges to their children, poor and working-class whites sometimes find it easier to blame blacks, or some other scapegoat, for "stealing" the American Dream. 114 Blacks become personally responsible for their own, as well as everyone else's, failures. This form of one-way individualism, which accepts responsibility for success but not failure, is not only dangerously polarizing; it also ignores the experience of racial disadvantage. Many Americans have been disadvantaged precisely because of their group identity; yet this reality does not recede by simple commitments to treat everyone as an individual. 115 Because individualism values the individual over the [*142] group, and individual mobility over community stability, it can contribute to more general feelings of dislocation 116 and disable groups of people from participating in public life. 117 Moreover, systems of selection often end up perpetuating inherited privilege, even as they disavow any connection to ascribed identity or natural aristocracies. 118 A principled commitment to merit selection can perpetuate ascribed identities in covert ways that are often aligned with the identities and experiences of those in a position to define merit. 119 Access to higher education can become a "world in which inequalities of power are natural, and individuals compete for well-being as individuals at the same time they occupy distinct social locations replete with social roles and expectations." 120 Nor are commitments to democratic legitimacy or upward mobility necessarily satisfied by selecting just a few group members to succeed. Indeed, in many ways, the democratic role of higher education has atrophied; without significant infusions of public funds and other potential [*143] sources of accountability, it is in danger of becoming a rhetorical but unrealized ideal. 121 I borrow and adopt three sociological terms - contest, sponsored, and structural mobility - to help assess the often-confusing interaction among the values that underlie admissions decisions. These three concepts describe the means through which individual upward mobility can be achieved: pure competition, discretionary choice, or structural intervention. A. Contest Mobility

The term "contest mobility" is a very rough proxy for upward mobility achieved through competitive success on standardized tests. 122 Elite status is the goal and is achieved by the candidate's own efforts in an open contest. 123 Numerical valuations of students provide a scoreboard for this contest, which is either won or lost, with no middle ground. Victors assume that their success, and their resulting elite [*144] status, is a justly won prize, not an opportunity for further growth. 124 Since aptitude or ability is presumed to be fixed before the race, the best prepared, rather than the most diligent, win. 125 The ultimate goal of contest mobility is the distribution of opportunity based on individual competition and quantifiable measures of merit. Every contest needs a referee, and the role of U.S. News & World Report in a competition defined by contest mobility should not be underestimated. 126 Rankings by this magazine not only signal to the individual applicant where he or she "belongs," but also signal to the institution where it belongs. 127 Similar to the ways in which standardized tests rank and sort individuals, U.S. News & World Report ranks [*145] and sorts institutions based on quantitative, uniform measures. 128 The rankings also exercise significant influence over educational institutions. Because they can affect the prestige of a school, the rankings matter to alumni, trustees, and the politicians who set the budgets of public colleges. 129 Moreover, rankings can influence admissions policies, pressuring institutions to focus on changes that may be unrelated to educational objectives. 130 Although quantitative measures can provide useful feedback to the institution or to the public, they can easily be misused to hold the institution accountable to one-size-fits-all standards that discourage pursuit of an institution's unique educational mission. 131 Rankings also privilege competition over the pursuit of the collective good, not only for the institution, but also for higher education more generally. 132 By discouraging inquiry into the discretionary [*146] choices on which they are constructed, these rankings normalize and calcify reliance on a few quite arbitrary measures of excellence because no dean or university president wants to put her institution at risk of lowered rankings and decreased prestige. 133 The facial neutrality of college rankings hides not only their arbitrariness, but also their value choices and tendency to perpetuate existing privilege. For example, differences in environmental backgrounds based on socioeconomic status (SES), defined broadly to include more than income, provide some students with significant advantages that are not apparent by solely examining grades and test scores. 134 Indeed, the relationship between test scores and status markers such as parents' education, grandparents' socioeconomic status, racial identity, and geographic location is very strong. 135 The correlation between test [*147] scores and SES indicators is even stronger than the correlation between test scores and future academic performance. 136 With the exception of race, however, the tests' correlation with socioeconomic factors, including class and geography, remains under the radar of public debate. 137

[*148] Although the introduction of standardized measures of aptitude was motivated primarily by the impulse to disseminate opportunity more broadly, it has had the unintended consequence of allowing one social class to enjoy hegemony. 138 A recent study by Anthony Carnevale and Stephen Rose of the Educational Testing Service (ETS) found that 74% of the students at the 146 most selective colleges and universities come from the upper 25% of the socioeconomic status indicators. Only 3% come from the bottom 25%, and roughly 10% come from the bottom half. 139 Indeed, although contest mobility was originally designed to throw open the campus gates "on the basis of brains rather than blood," 140 blood has nevertheless triumphed, as middle-and upper-middle-class parents, themselves college graduates, pass on their own status markers by helping their offspring manipulate the so-called "objective" measures of merit, including SAT and LSAT scores. 141 Test preparation is now a major industry: coaching is not limited to classes but includes personal tutors, live-in mentors, and private schools that put enormous resources into guidance counselors who help students "beat the system." 142 These special privileges cannot be reconciled with contest mobility's narrative of upward mobility through personal responsibility. Quantitative measures often reflect family resources and influence [*149] rather than a student's resourcefulness or intelligence. Some students tend to test better than others; thus, two students with identical test scores may have put in different amounts of effort to achieve those scores. 143 For these reasons, quantitative measures of academic aptitude primarily reflect the performance of groups of people rather than individuals. 144 The measures on which contest mobility relies, for example, often fail to predict an individual's long-term, post-graduation accomplishments. The contest promotes short-term winners who are not necessarily among those who enjoy the most financial success or career satisfaction, or who perform the most public service. In fact, a study of graduates of the University of Michigan Law School 145 found that merit, as quantified by college grades and LSAT scores, had either no correlation or a negative correlation with post-graduation contribution to the community. 146 Overall, individuals with lower LSAT scores and college grades tended to spend more time in public or unremunerated legal service. 147 Indeed, following graduation, the school's black and Latino students succeeded in ways that eluded many of their white counterparts whose entry-level credentials were higher. 148 [*150] The Michigan study is supported by the findings of other research demonstrating that contest mobility does little to produce a public-minded set of winners. 149 Because contest mobility communicates to its winners that they belong to the elite because of their innate qualities, they apparently feel less of an obligation to serve the public. Ironically, Conant's dream of a selfless class of public-minded graduates who would remember their roots was better satisfied by the exclusive, self-satisfied aristocracy than by the inclusive, self-centered

meritocracy. Whereas the hereditary elite felt the pangs of noblesse oblige, 150 the meritocratic elite apparently feel no such pressure. Contest mobility reinforces the culture of meritocratic entitlement among its primary beneficiaries, upper-middle-class whites, who feel they have played by the rules and therefore deserve to win. This commitment to the narrative of contest mobility has proved resistant to data refuting its validity and continues to remain extremely persuasive, particularly among affluent whites, whose children are the primary beneficiaries of the traditional admissions regime and its overreliance on narrow, "objective" indicia of success. Survey data suggest that well-educated, well-off whites are among the most antagonistic to affirmative action in higher education, even though they are more supportive of programs designed to increase the representation of people of color in legislatures, public sector jobs, and government contracting positions. 151 Explicit diversity criteria for admissions are controversial. They are seen as throwbacks to an earlier, now rebuked, age that relied on social criteria rather than mathematically derived ones. Critics argue that, because explicit diversity criteria categorize people rather than their output, they leave room for the subjective exercise of racial prejudice, thus subverting the fairness principle. 152 These critics presume that, because scores are "earned," and diversity is not, diversity [*151] criteria allow less "deserving" students of color to gain admission over more "qualified" whites, even though the number of whites adversely affected by affirmative action is miniscule. 153 For critics of affirmative action, diversity represents a dramatic departure from the background commitment to objective measures of merit. Diversity is therefore denigrated as both a process and a substantive goal. 154 Diversity criteria bend the rules of contest mobility. 155 B. Sponsored Mobility In order to admit more individuals from underrepresented demographic categories, colleges and universities have modified contest mobility by supplementing the contest with discretion. This hybrid alternative, which I call "sponsored mobility," 156 refers to the contemporary version of the elitist system that was in place when James Conant was President of Harvard. In a system of sponsored mobility, modern elites - including admissions officers, alumni, and others who have already enjoyed the spoils of higher education - hand-pick a few candidates to ascend the ladder of higher education. Whereas contest mobility relies solely on a fixed set of "hard" numbers, sometimes called "skinny merit," sponsored mobility relies on an expandable set [*152] of "soft" criteria, which might be called "robust merit," to supplement the hard numbers. 157 Sponsored mobility is an intermediate position between pure contest mobility and structural mobility. This intermediate position allows decisionmakers some room to maneuver; it also acknowledges the limitations of the contest in determining the most "qualified" candidates. The use of soft variables is defended with hard data

showing that a purely test-based system suffers from the fallacy of false precision. Like the hereditary elite system it replaced, modern sponsored mobility retains a discretionary process. The admissions officers sort through a host of objective and subjective variables to inform their judgment. 158 Soft variables, in particular, afford admissions officers the discretion to discover and reward untapped, and perhaps immeasurable, human potential that is evidenced by personal characteristics, such as a disciplined work ethic or the motivation to persist in the face of overwhelming obstacles. This discretion is informed by interviews, letters of recommendation, extracurricular activities, and personal circumstances, including the applicant's race. Sponsored mobility is managed by professional admissions officers for the most part; however, alumni representatives and the headmasters of private secondary schools still play a role in "sponsoring" candidates to elite institutions. Students from elite private schools, for example, still enjoy disproportionate access to Harvard, Yale, and Princeton. 159 [*153] Sponsored mobility enables status elevation at the individual level, but when it comes to issues of diversity, institutions justify it in the name of the group. This justification may take several forms. An institution may believe that diversity in higher education is important because it allows students of all races to "see that people like themselves can succeed" and to "learn the value of interacting with people who are different." 160 Or it may believe that diversity is essential to preserve a "stable polity." 161 Or it may conclude that interracial interaction helps destabilize stereotypes and improve race relations more generally. Whatever the motivation, decisionmakers select a few deserving group members, whose presence then legitimates the institution's educational and democratic missions. The process values associated with sponsored mobility are elite selection and good-faith discretion. Using the soft variables to supplement the hard criteria for merit, adherents to sponsored mobility often challenge the notion that excellence is quantifiable; they believe that hard work, motivation, and diligence are relevant to future success. But they still rely primarily on "input" rather than "output" measures - that is, they look backward rather than forward. Few institutions conduct long-term research on the career trajectories of their graduates. Nor do these institutions maintain relationships with representatives of inner-city public high schools or rural schools in remote locations. They do not engage sufficiently, at least publicly, with the tough questions about the democratic mission of the institution, the need for democratic practices to fulfill that mission, or the need to be more self-reflective about whom they admit generally and what they expect of their graduates. Sponsored mobility suffers from four serious flaws: First, it enables the unconscious biases of a relatively homogeneous group to thrive 162 [*154] by relying on the judgment of individuals who do not have to explain their choices to a third party. Admissions officers rarely enjoy longstanding relationships with the inner-city principals, high school guidance counselors, individual teachers, or

community leaders who might know and recommend a student and who can offer information that may not be apparent from the student's file. Second, sponsored mobility does not adequately embrace the idea that individuals change in relation to their environments; thus, although it moderates notions of the intrinsic worth of individuals, sponsored mobility does not adjust sufficiently for the malleability of intelligence in response to effort or encouragement. Third, sponsored mobility perpetuates reliance on the same admissions processes that enabled the current decisionmakers to succeed. Not only do the decisionmakers sponsor students who look like or remind them of themselves, but they also sponsor students who succeeded under the same criteria they faced. This commitment to self-replication is backward-looking; it tends to encourage complacency rather than self-reflection and experimentation. Finally, because adherents of sponsored mobility do not publicly and continuously rethink the relationship between their selection criteria and their mission, their criteria tend to become ends in themselves. For these reasons, sponsored mobility does not necessarily abate the obsession with rankings. The hard numbers tend to dominate, especially where diversity considerations, which are often used to justify softer variables, are not presented as integral to the core idea of excellence. 163 Test scores and other quantitative measures are still used not only to rank and sort individual applicants, but also to rank and sort selective institutions, which then become committed to admitting mostly those students whose test scores protect the institution's own [*155] rankings. 164 Although sponsored mobility leavens the use of test scores through special considerations for students of color, athletes, children of alumni, or students with wealthy parents who may contribute financially to its well-being, 165 some institutions misuse test scores to protect their rankings in U.S. News & World Report. Indeed, some institutions, eager to maintain the highest possible median SAT scores, use winks and nods to manipulate affirmative action categories. Some selective institutions, for example, decline even to recruit from urban public schools, where SAT scores are not as high as in suburban schools. Or they fail to probe beyond the "checked boxes" to determine who really identifies with the underrepresented groups the institution seeks to enroll: they often overlook talented, American-born, African Americans and Latinos in favor of higher-scoring recent immigrants from Africa, the West Indies, and South America. 166 The higher test scores of well-educated voluntary immigrants [*156] apparently correlate with their lesser vulnerability to the "stereotype threat" that depresses the performance of American-born blacks and Latinos; 167 their higher test scores may also reflect their parents' professional or educational status in their countries of origin. 168 Voluntary immigrants contribute in multiple and valuable ways to the diversity of an institution and to the larger society. 169 Nevertheless, it would be troubling if it turned out that colleges were admitting recent immigrants in overwhelming numbers while rejecting or not recruiting indigenous blacks, Puerto Ricans living

in the continental United States, and Mexican Americans, simply to maintain their rankings in U.S. News & World Report. 170 Such a trend would be especially [*157] disturbing if sponsored mobility allowed such institutions, in their quest to improve their rankings, to ignore evidence that the hard variables fail to predict long-term performance for many individuals, are useful primarily as social indicators of group advantage rather than individual performance in the classroom, need to be supplemented by a thicker version of diversity, and may undermine the "expressive" function of the institution. 171 In the end, sponsored mobility may be only marginally better than contest mobility at allocating access to higher education in a way that is consistent with democratic principles. Although sponsored mobility uses diversity to supplement the hard numbers, it still relies extensively on "the contest" to determine the winners; in this way, diversity becomes a stabilizing norm to legitimate the status quo. Contest mobility at least assumes that individual competition will create churn to upend a complacent view of the status quo. 172 In addition, sponsored mobility gives power to a few decisionmakers to allocate opportunity to "deserving" individuals. Contest mobility gives that power to the institutions that manufacture or referee the rules of the contest, whether a testing bureaucracy or a news magazine; the contest then allocates opportunity to those who "earn" it on their own, with individual competition serving as a tool of accountability. Sponsored mobility, because of its tendency to operate behind closed doors and in isolation from the people who know the candidate best, often lacks such accountability. 173 Because sponsored mobility is still beholden to [*158] the hard numbers, operates without much transparency, and tends to reward a limited range of individual attributes, it can also be perceived as a means to co-opt or pacify potential challengers to the governing regime. 174 Although it expands what is considered relevant to past performance, it does not necessarily anchor admissions decisions in a commitment to future public service. 175 Under sponsored mobility, admissions decisions are often supported by stories rather than data. Instead of truly diversifying contest mobility's view of excellence, sponsored mobility tends to make, and then justify, its few exceptions to the dominant contest while taking the same narrow view of merit. 176 Ironically, it is along the margins of the contest that sponsored admittees vindicate W.E.B. DuBois's faith in a "talented tenth." 177 To the extent black and Latino beneficiaries of sponsored mobility see their advancement as a "vote of confidence," or a "racial variant of noblesse [*159] oblige," they become the most likely to fulfill Conant's dream of an "educated talent [who] will later serve the taxpayer by serving the entire nation." 178 C. Structural Mobility In addition to contest mobility, which uses hard numbers to measure academic merit, and sponsored mobility, which employs expandable criteria to measure diversity, there is a third conception of the relationship between opportunity and

admissions: "structural mobility." 179 A system of structural mobility seeks to identify qualified students in relation to the greater role of higher education in the political, economic, and social structure of community. 180 A commitment to structural mobility means that an institution's commitments to upward mobility, merit, democracy, and individualism are framed and tempered by an awareness of how structures, including the institution's own admissions criteria, tend to privilege some groups of people over others. Structural mobility would require universities to change those admissions policies to provide access to large numbers of people across class, race, and geographic lines, thereby changing the very structure of educational opportunity in this country. 181 Advocates of structural mobility understand that opening access to higher education benefits the society as a whole, not just the individual admittees. 182 Structural mobility differs from both contest and sponsored mobility, which are dedicated to individual advancement through a market-oriented contest or a "vote of confidence." Structural mobility places the issue of merit firmly on the table and attempts to define it in the context of democratic values. It takes a future-oriented view of the [*160] role of higher education in a multiracial democracy by linking ideas about merit directly to ideas about public service and opportunity broadly construed. Although structural mobility is committed to community advancement, it is not inconsistent with ideals of individualism. 183 Rather, structural mobility values the individual in relation to the community. Because it privileges those who have already served, or those who want to serve, their communities, structural mobility focuses society's educational resources on those who are most likely to fulfill the aims of democracy. For proponents of structural mobility, contest mobility's preoccupation with competitive individualism fails to fulfill Conant's dream of assembling a more publicly spirited elite; contest mobility promotes short-term winners of the wrong game. Sponsored mobility does a better job of elevating individuals who remain connected to their communities or to the taxpayers who helped subsidize their success, 184 but only through a small segment of all admittees. Structural mobility extends the emphasis on community affiliation and linked fate to all admittees, not just those who bring racial diversity to college campuses. 185 It links the institution and its students to their communities, thereby advancing the goals of public education at the local, state, and national levels. 186 An institution committed to structural mobility [*161] might measure its success, for example, not only by the students it admits but also by the changes it precipitates in educational opportunity at the K-12 level. Finally, structural mobility is sustained by a broadly democratic and participatory process of self-reflective and racially literate experimentalism. 187 In a world of structural mobility, individuals are given access to educational opportunities not because they win a "contest" or because they have been hand-picked by elites, but because the relevant stakeholders 188 come together to make a set of public-minded choices. 189

Because structural mobility moves to restore the "public" in higher education, some critics argue that it is a radical departure from America's tradition of individual upward mobility, merit, and personal responsibility. 190 However, elements of structural mobility already play [*162] a part in some of our nation's educational programs. For example, the 1944 GI Bill 191 provided funding to World War II veterans for a college education. 192 More recently, the Texas Ten Percent Plan (TTP) 193 is a significant (albeit still incomplete) step toward the goals of structural mobility. By admitting students in the top ten percent of every graduating high school class in the state, the TTP reconnects the state's flagship universities to local communities, and brings diversity into the classroom across lines of race, class, and geography. The TTP originated from a confluence of political forces after the Hopwood decision. 194 Hopwood, which ended affirmative action in the Fifth Circuit, mobilized coalitions of black and Latino activists; [*163] black, Latino, and white legislators; and university administrators and professors. These coalitions forged new alliances with conservative rural legislators as they sought to develop new admissions criteria that would maintain access to the flagship state institutions for people of color as well as poor whites. 195 They fundamentally altered ideas about merit and access, pushing the SAT and other standardized tests to the periphery and instead relying primarily on high school grades to determine who is "qualified" to attend a taxpayer-subsidized college. 196 According to one of the Plan's original proponents: "We based our argument on essentially two factors. One is that the best predictor of success is success - if kids have been successful, they'll continue to be successful. The second is that we wanted to create a different incentive structure in the high schools. We wanted to reward hard work." 197 This coalition also embraced a process that made sense in Texas, where ten percent of the state's high schools - particularly those in the affluent, predominantly white areas of suburban or metropolitan Houston, Austin, and Dallas - had been providing fifty percent to seventy-five percent of the freshman class at UT Austin under the "classic" admissions model combining contest and sponsored mobility. 198 The TTP not only redefined merit in the context of college admissions, [*164] but it also built multiracial support for greater diversity and fairness in the admissions process in ways that affected large numbers of white people too. 199 As UT Professors Forbath and Torres noted, the Plan "addresses the broader inequities that lead U.T. Austin to see few of the brightest kids of any color from the state's poorer counties." 200 While proponents developed the Plan to be race-neutral, it is not "color-blind." 201 Appealing to a combination of local pride and populism, 202 proponents of the TTP argued that the state's flagship universities had an obligation to serve all areas and all people of the state. In addition, they wanted to reconnect higher education to the K-12 system. By tying university admissions to local high schools throughout the state, they sought to create the political will to provoke "real remedies for the core

problem - the appalling inequities in the State's system, with its gross under-funding of K-12 education at many minority schools." 203 By making the admissions process more transparent, the TTP reconnected higher education to its public mission. Although much of the debate about the TTP has taken place in the context of race, recent scholarship suggests that class is another important variable that points to the severe underrepresentation of identifiable [*165] communities. 204 Geography, in turn, is often a marker for class. Under "classic" admissions models that combine contest and sponsored mobility, suburban high schools are much more likely than either urban or rural schools to feed their graduates to flagship state colleges. 205 This trend prevailed not only in pre-Hopwood Texas, but also in Michigan. 206 Geography may also conceal privilege within racial groups. Classic admissions models often fail to reach the most disadvantaged people of color because the racial diversity they produce often ignores the interplay between race, class, and geography. For example, some elite colleges use sponsored mobility to admit foreign-born students of color whose parents are professionally trained or highly educated, and who increasingly displace American-born blacks and Latinos under the rubric of diversity. 207 Geography also marks race, not just class. In pre-Hopwood Texas, for example, a few geographic areas, often segregated by race and class, effectively dominated access to flagship campuses. 208 Efforts to draw majority-minority election districts also reflected racial segregation [*166] within many Texas communities. 209 Thus, the TTP used structural mobility to take account of the interdependence of race, class, and geography, in ways that tracked the integrative principle behind the drawing of majority-minority election districts. 210 The levels of racial diversity at UT Austin have approached, and in the case of Latinos, exceeded, those realized through sponsored mobility. 211 The TTP has led to less racial diversity at Texas A&M than at UT Austin, where administrators have been more involved in the development of the Plan, have engaged in extensive outreach to high schools, have sought scholarship aid for students, and have implemented mentoring programs at the university. 212 Contrary to the assumption that TTP students would not perform on par with their peers, TTP students have actually earned higher freshman-year grades than students with higher SAT scores who were admitted under a more discretionary set of criteria. 213 As demonstrated by their performance, TTP students did not need remediation; they needed information. 214 [*167] The TTP has also led to greater outreach at the UT Austin campus, where the same local activists who worked to develop the plan have helped the university keep abreast of changing local circumstances. Indeed, the controversy generated by the TTP has provoked the university to engage in the self-reflective practice of refining recruitment and outreach, as well as collecting massive amounts of data. Both of these consequences have made admissions processes more transparent to

the public. 215 Despite its modest success at one flagship school, an automatic admissions system based on high school grades may appear both arbitrary and backward-looking. It seems arbitrary because it uses a single criterion without investigating how that criterion applies to individual students or is influenced by local norms, funding, and teacher qualifications. 216 It arguably uses numbers as a predictor of outcomes rather than as a process value to initiate a continuous, self-reflective examination of how closely a university's admissions criteria match its institutional goals. To the extent this observation is true, the Plan is a contest with new rules or a system for sponsoring groups rather than individuals. It is backward-looking because it chooses students based on what they did in the past: they performed well in high school. 217 Those who are leery of the Plan also express concern about the past as it relates to the future; they worry that students from underfunded high schools will fail to matriculate at the college level. 218 [*168] And yet there are reasons to suspect that the TTP also looks to the future. Precisely because students are admitted based on their performance in local high schools throughout the state, they may have deep connections to their communities that will inspire them to bring their skills home while embracing the public service mission of the university. 219 Many of these students represent not only the first people in their families to attend college, but also the first in their communities in recent memory to attend one of the state's flagship colleges. Perhaps this cohort will realize Conant's dream of a public-spirited meritocracy, at least to a greater extent than has the contest mobility regime that he helped put into motion. 220 This idea - that access to the state's flagship colleges would open up access to leadership positions throughout the state - was certainly one of the justifications for the adoption of the TTP. 221 Although it was enacted in response to a court decision, the TTP was animated by the belief that distributing access to educational opportunity broadly is consistent with the educational mission of higher education, necessary to economic viability in the global economy, important for training a representative group of citizens who will contribute to the public good, central to reconnecting the university to the K-12 educational system, and indicative of greater legitimacy within higher education. Whatever the Plan's limitations - and there are many 222 - most [*169] are also true of sponsored mobility programs. 223 The TTP is not a panacea: it does not apply at all to the state's public law schools, and UT's continued commitment to the selectivity associated with its elite status may eclipse the Plan's commitment to structural mobility. Nevertheless, the Plan illustrates some of the elements of structural mobility. It moves away from the notion that it is necessary to create uniform and quantitative standards enforced through a national bureaucracy in order to identify those who can perform. 224 The Plan pushes university administrators to define success within its local context, challenging the conventional wisdom that elitism enforced by uniform but narrow rules equals

excellence. 225 It demonstrates the role of relationships, both in overcoming the prior skew in recruiting talented [*170] individuals 226 and in assuming responsibility for the development of an educational system that goes from K through college, not just K through 12. 227 The Plan acknowledges that admissions are political acts, and then uses the normative framework of the institution in relation to broader societal goals to achieve an educationally more equitable and politically more palatable result under conditions of scarce resources. The TTP illustrates the need for public institutions to do more policy research in order to develop and assess programs that help subsidize their public mission. 228 And the Plan owes its success to a grassroots mobilization involving a broad multiracial coalition rather than a "small and carefully selected natural aristocracy." 229 Both the GI Bill and the Texas Ten Percent Plan share, to varying degrees, certain critical features that I associate with structural mobility. First, each program is perceived as either a return to individuals for their service to the community or a preparation for such service; 230 second, each program seeks to build broad cross-class and cross-racial coalitions by enlisting the support of grassroots voluntary organizations or the participation of indigenous actors in the construction of [*171] the program; and finally, each program is able to generate public revenues to support itself, in part because it distributes opportunity inclusively by race, class, and geography. 231 Although very different, each is a tool of structural mobility that, like the land grant colleges of the nineteenth century, exemplifies democratic commitments to opportunity. 232 All of the salient features of structural mobility - a commitment to public service, the participation of grassroots voluntary organizations or indigenous actors in the construction of the program, and the escalator effect that generates broad public support - connect to democratic values. [*172] III. Enter the Supreme Court: The Promise and the Caution of Using Race as a Lens Selective public institutions, such as the University of Michigan and the University of Michigan Law School, are in the position to choose among a number of qualified candidates who can do the work and be expected to graduate. Because their admissions decisions have broad social purposes and important individual consequences, these institutions must be able to articulate and defend their admissions criteria and processes to their respective constituencies. Four elements of the Supreme Court's decisions in Grutter and Gratz seem particularly relevant to the challenge facing institutions of higher education like the University of Michigan that are committed to maintaining their elite status while producing racially literate graduates who contribute to both the campus community and the larger society. These elements are: the value of race-conscious diversity as it is connected to the university's educational mission; a robust view of diversity that includes class and geography, not just race; the role of democratic values; and the relationship between data, demographics, and reflective practice to inform the way

institutions operationalize the concepts of diversity and democracy. These concepts, and the need to reconcile them through an experimental, democratic, and reflective practice, emerge in conjunction with some of the fault lines in the Court's analysis. The majority opinion in Gratz, which overturned the University of Michigan's undergraduate admissions system, tells institutions what they cannot do. Justice O'Connor's opinion in Grutter, by contrast, provides broad parameters for what institutions can do, and when read in conjunction with their public mission, how they ought to do it. Particularly revealing is the interplay between Justice O'Connor's opinion for the Court in Grutter, upholding the University of Michigan Law School's use of race to promote sponsored mobility, and Justice Thomas's dissent, criticizing sponsored mobility while shifting between a rhetorical preference for contest mobility and an analysis that is more compatible with structural mobility. The incongruity between Justice Thomas's analysis and conclusions is especially important in light of the social and economic data provided by Justice Ginsberg's dissenting opinion in Gratz. Ironically, the juxtaposition of Justice O'Connor's majority opinion in Grutter, Justice Thomas's dissenting opinion in Grutter, and Justice Ginsburg's dissenting opinion in Gratz reveals a new understanding of diversity that uses race to identify barriers to upward mobility, including geography and class, and connects a broader view of upward mobility to a democratic process. Before the Supreme Court, the schools defended their use of a combination of contest and sponsored mobility as necessary to maintain their "identities" as elite institutions capable of choosing the most [*173] "qualified" students. They broadened the notion of contest qualification to include, at the margins, the ability to contribute to a diverse educational experience. The schools, and many of their amici, disparaged structural mobility - at least as generically illustrated by percentage plans in California, Florida, and Texas. 233 Prodded by Lee Bollinger, the former President of the University of Michigan, they demonstrated public leadership in a surprisingly effective way, by illustrating the powerful role that universities can play in helping to frame public policy. They cast the issue of diversity as an educationally important variable, which functioned along the margins as a democratically viable exception to contest mobility. The nearly uniform support of this position from university presidents, former Joint Chiefs of Staff, and Fortune 500 corporations forced the Court in Grutter and Gratz to confront the question: what criteria should the Court use in supervising selective colleges and universities as they allocate opportunity through the political act of making admissions decisions? Writing for the Supreme Court in Grutter, Justice O'Connor deferred to the University of Michigan Law School's use of sponsored mobility to answer this question. She introduced a prospective view of diversity that gave law school decisionmakers a wide berth 234 to consider [*174] race holistically and as one of many factors in selecting candidates for admission. 235 Her opinion expands what

the Court considers a compelling governmental interest to include a prospective, not just retrospective, interest in the achievement of a racially diverse student body. 236 Her willingness to look toward the future of higher education invites institutions of higher education to engage in a larger conversation about the role colleges and universities play in fostering democratic values on campus and beyond. 237 Justice O'Connor acknowledged the institutional interest in a diverse classroom, as well as the societal interest in a diverse set of future business, military, government, and educational leaders. 238 By citing [*175] the amicus briefs of the military and others, Justice O'Connor's opinion for the Court affirmed that the conversation about racial diversity extends beyond the classroom to include the fundamental role of public education in a democracy. 239 Her opinion linked the educational mission of public institutions not only to the autonomy that the First Amendment gives universities to fashion their educational goals, 240 but also to the broad democratic goal of providing upward mobility to a diverse cadre of future leaders. 241 Upward mobility does not just benefit the individuals chosen to walk the path. To maintain public confidence in the educational institutions that provide this training, and in the legitimacy of those in charge more generally, the path to leadership must "be visibly open." 242 Justice O'Connor recognized that the educational value of promoting knowledge is crucial to the functioning of a democratic society and to the democratic value of providing opportunity in a fair and equitable fashion. 243 Elite public institutions such as the University of Michigan are educational gatekeepers that perform democratic functions: they grant upward mobility to their graduates and identify future leaders for business, government, and the military. Consequently, diversity has three important elements, which together justify the Court's deference to the law school's deployment of sponsored mobility [*176] to admit a critical mass of underrepresented students of color: diversity is pedagogical and dialogic; 244 it helps challenge stereotypes; 245 and it helps legitimate the democratic mission of higher education. 246 Justice Powell's opinion in Bakke really endorsed only the first of these three benefits as a compelling interest, 247 and his opinion generally has been read that way. Justice O'Connor's opinion in Grutter, by contrast, included encomiums to them all, which perhaps explains why she went out of her way to point out that the Court was not treating Justice Powell's opinion in Bakke as controlling precedent. 248 For Justice O'Connor, public confidence is associated with democratic values of fairness, upward mobility, and representative leadership, and diversity - within the classroom and among those who graduate - is one of the means to achieve those democratic values. But not all efforts to achieve democratic legitimacy through diversity are equal. Sponsored mobility is a legitimate means to achieve the benefits of racial diversity, but only if the decisionmakers do not treat race as a fixed, bounded category. 249 In her concurring opinion in [*177] Gratz, the companion case to Grutter involving the Michigan undergraduate program, Justice O'Connor rejected the university's practice of automatically awarding twenty points to members of underrepresented

racial groups. 250 Since Grutter was decided by a 5-4 majority, the obvious difference between it and Gratz was Justice O'Connor's attitude 251 toward the use of numbers in racial categorization: Educational decisionmakers may use such numbers to provide information and feedback on an avowedly race-conscious process. They may not use such numbers automatically to predetermine fixed racial outcomes. 252 However, when hard variables that consistently correlate [*178] with race are used to rank and sort individuals, numbers are not automatically suspect, although they may not always be the most reliable source of the information a law school admissions officer needs. 253 In Grutter, Justice O'Connor accepted the subjective, discretionary process used by law school officials who appeared to have considered the race of candidates holistically on a case-by-case basis. In Gratz, by contrast, she criticized the university's decision to value race "automatically" through an admissions grid. 254 Hand-picking as opposed to machine-sorting is preferable in her account. Educational institutions achieve the benefits of sponsored mobility when decisionmakers do not apply overt racial categories to achieve predetermined outcomes and do not limit those who benefit from considerations of diversity to [*179] members of historically underrepresented groups. Diversity is broadly defined and can include, inter alia, class, race, and geography as potentially interdependent, rather than isolated, variables. 255 Recognizing that educational institutions have multiple goals, Justice O'Connor deferred to institutional actors to weigh and balance those goals. 256 Justice O'Connor viewed the resulting admissions decisions as permissible, provided that the decisionmakers demonstrated good faith, including their willingness to consider race-neutral alternatives (without necessarily adopting those alternatives, at least in the short run). Justice O'Connor's skepticism about numbers is asymmetrical. She presumes numbers traditionally associated with contest mobility to be objective, even as they implicitly categorize people in ways associated with social and racial identities; at the same time, she views numbers explicitly associated with racial categories in a system of sponsored mobility as constitutional hot potatoes that may be considered only if the decisionmakers demonstrate the good-faith exercise of discretion. 257 For Justice O'Connor, good faith has three components: that the judgment be exercised in relationship to the institution's educational or democratic mission, that the judgment not treat race as a fixed category, and that the judgment to consider race be continuously interrogated in light of race-neutral alternatives. 258 [*180] Justice O'Connor's deference to the law school admissions officers to choose whom to invite onto the path of opportunity was the source of extended criticism by the dissenters, who lamented the way she used it to short-circuit strict scrutiny analysis. 259 One interpretation of this deference, however, is that it revives the distinction between benign and odious uses of race in the application of strict scrutiny - a distinction more explicitly drawn in Justice Ginsburg's dissenting opinion in Gratz. 260 Under this interpretation, the use of race is benign when

educational decisionmakers exercise their judgment to serve the larger integrative and democratic values of society. 261 The educational judgment of university officials merits deference because their holistic assessment of candidates assures all applicants that their potential contributions will be thoughtfully considered, and avoids ignoble social purposes, such as arbitrary racial balancing, and the consequences of an ill-designed social program that perpetuates stereotypes. Additionally, educators who continuously engage in a "reflective conversation with the situation" 262 to seek race-neutral alternatives where feasible satisfy the narrow tailoring requirement of strict scrutiny. 263 Explicit [*181] considerations of race are broadly legitimating when they apply on an individual basis, encompass an expansive group of beneficiaries (including whites), undergo reevaluation from time to time, and galvanize more systemic interventions to make race-neutral alternatives available. 264 The above analysis is certainly one way to understand Justice O'Connor's "expectation" that the need to use race as a constitutionally legitimate factor in achieving diverse university classrooms will expire in twenty-five years. 265 Her opinion is a push to get educational leaders to assume responsibility for creatively fashioning admissions practices that fit a changing reality. It is also a potential catalyst for public universities to assume more responsibility in changing that reality. By continuously reflecting on the situation, gathering data, sharing information, and reconsidering alternatives, educators can take account of any evolution in the system and recalibrate their methods of selection to assure continued public confidence. Justice O'Connor's deference to the judgment of educational decisionmakers in Grutter provoked Justice Thomas to write a stinging dissent. He shared the concerns of Justice Kennedy and Chief Justice Rehnquist that Justice O'Connor's majority opinion evaded the mandate of strict scrutiny; but Justice Thomas had a deeper stake in the issue and perhaps a more personal axe to grind. 266 Diversity, according [*182] to Justice Thomas, is merely a "faddish slogan of the cognoscenti" 267 that depends on deference to the judgment of "know-it-all elites." 268 In Justice Thomas's view, sponsoring certain individuals because of their race is the equivalent of conducting "social experiments with other people's children" to serve an "aesthetic" rather than democratic arrangement. 269 Whereas Justice O'Connor embraced elite sponsorship as a means of assuring democratic legitimacy, 270 Justice Thomas criticized the perceived virtues of both hand-picking by admissions officers and machine-sorting by numbers. While Justice Thomas endorsed a modified form of contest mobility in which no individual explicitly receives a hand up or a hand out, his analysis implicitly moved in the direction of structural mobility. 271 [*183] Justice Thomas refused to accept the contention that diversity for the sake of diversity can ever be benign. He quarreled with Justice O'Connor's assertion that a robust commitment to racial diversity can help break down stereotypes, promote learning, and contribute to a more inclusive view of democracy. 272 While Justice

O'Connor wrote [*184] glowingly about diversity, Justice Thomas was skeptical, even hostile, to the concept. Diversity, for Justice Thomas, is a facade for a demeaning form of paternalism. 273 Justice Thomas opposed the notion that sponsored mobility through a self-reflective practice among elites is the preferred process by which to pursue democratic legitimacy through racial diversity. Instead, he concluded that only a radically individualist posture would save blacks from manipulation by whites whose self-interests do not "converge" with those of their intended beneficiaries. 274 He also distrusted the merit-based claims advanced to justify a commitment to elitism, arguing that visible diversity simply legitimates that elitism and its "aesthetics." 275 Justice Thomas took his critique in the direction of a leave-us-alone black individualism, in part because he ignored the fact that content neutrality is impossible when contest mobility is constructed on top of grossly unequal social positions that correlate with race and class. However, Justice Thomas's anti-elitist stance and implicit skepticism of testable merit are equally compatible with a more robust idea of functional merit and democratic accountability. 276 [*185] Exclusive reliance on the good faith of elites to distribute opportunity seems inconsistent with the participatory values of democratic process. At a very basic level, few people can be trusted to exercise discretion in an unaccountable and nontransparent way. 277 Indeed, research on cognitive bias suggests that people favor those who seem familiar over those with whom they do not identify; 278 such bias is especially problematic when decisions are subjective, invisible, and unaccountable to a third party. 279 I take seriously Justice Thomas's suspicion of "know-it-all elites" who attempt to make individual judg-ments without transparency or democratic accountability. 280 And yet [*186] such a system seems to be exactly what Justice O'Connor had in mind. Justice Thomas's dissent critiqued sponsored mobility on another ground. He pointed out the inconsistencies between the institution's commitment to testable merit and its creation of an exception for diversity. 281 He criticized this exceptionalization of diversity using the language of "stigma." 282 I agree that exceptionalizing diversity and disconnecting it from genuine merit is problematic, but for reasons that are quite different from the ones that Justice Thomas articulated. First, it is not the effort to produce racial diversity per se that is stigmatizing; it is diversity's association with race and its availability as a framing device in our society because of this association. Erroneous assumptions about black intellectual inferiority, laziness, and general undeservedness have a long history. 283 This history helps explain why legacy preferences, which account for a larger percentage of admissions at selective colleges than do racial or ethnic factors, 284 do not [*187] generate the same "stigma." 285 Inheriting the opportunity to attend college apparently is not stigmatizing, even if it is the basis for lowering standards as measured by hard admissions criteria. 286

Second, diversity, through its close association in the public mind with the language of preferences, is perceived as an exception to, rather than a foundational element of, merit. 287 Because this perception isolates diversity from arguments about educational excellence, it makes racial diversity particularly vulnerable to critique. 288 As Justice Scalia's dissent in Grutter demonstrates, racial diversity is trivialized rather than acknowledged as a legitimate part of the institution's educational and public missions. 289 Such trivialization, sometimes bordering on ridicule, may implicitly endorse stereotypes of black inferiority. 290 Third, because diversity is treated as an "add-on" to the prevailing system of contest mobility, race is not only isolated but also hyper-visible and thus an easy target for the frustrations of whites who have [*188] no other explanation for their individual failures. 291 To the extent that the Grutter and Gratz opinions encourage institutions to cloak their decisions in "holistic" assessments, race will remain the only highly visible variable that institutions consider. 292 Once race becomes hyper-visible, the diversity rationale may generate backlash despite the Court's approval of it. 293 When people feel frozen out of a valued public resource, they often use race to explain the problem. This phenomenon is especially prevalent during a "revolution of rising expectations," such as the one put in motion by the post-World War II shift in the opportunity structure of higher education. 294 The genesis of the current controversy can be traced in part to the absence of transparency at the dawn of the contest mobility era. As a result of a series of relatively private decisions that fundamentally altered our perception of educational opportunity, universities became the "sorting hats" 295 that decided who could become members of the governing elite. The current hullabaloo surrounding affirmative action is in some ways a proxy for a public debate that never took place when the contest mobility admissions criteria were first adopted in the 1950s. Nicholas Lemann explains the consequences of transforming universities into a "national personnel department" without public ratification: It isn't a happenstance that the question of who gets to attend [universities] has become the subject of election campaigns and Supreme Court [*189] cases. Because of the peculiar circumstances of the founding of the American meritocracy - the lack of public debate or assent (therefore the lack of general understanding about its purpose) ... [and] the steady imperceptible segue in orientation from leadership training to reward distribution - the system seems to be one whose judgments are mysterious, severe, and final. 296 This shift, through which universities purported to provide educational opportunity for all but instead functioned more as gatekeepers for a small elite, affected poor and working-class whites, who are often the plaintiffs in lawsuits challenging affirmative action. 297 The inability to control this mysterious meritocracy also helps explain the resentment among upper-middle-class and middle-class

Americans, 298 who feel great anxiety, at least compared to the wealthiest Americans with their bloodlines and old money, about their ability to pass on their social rank to their children. 299 Status insecurity looks for easy targets. As long as the process of decisionmaking by elites remains opaque, race will remain the lens through which disgruntled white applicants understand it. Race is the neon light, the one variable that remains highly visible. Race, in other words, is an easy mark for the frustration of those who are excluded by admissions choices - choices that have little to do with race and much to do with discretionary, even arbitrary, [*190] decisionmaking. The historical stigma associated with people of color lends further momentum to this backlash, particularly since other discretionary choices to convert social status into merit were never subject to open debate 300 and are still relatively camouflaged. 301 Working-class and upper-middle-class resentment, which is misdirected at affirmative action, nevertheless resonates because of a linked chain of assumptions: blacks admitted under affirmative action are taking more than their fair share of seats; those blacks are not "qualified" to be there in the first place because they have lower test scores, which are the premier measure of merit (thereby reinforcing assumptions about black inferiority); and the affluent whites, who are taking the most seats, do deserve to be there - even though it is they who, because of the close association between test scores and parental education and wealth, are in fact the primary beneficiaries of the admissions process. Given the reality that race still codes opportunity, sponsored mobility mediated through a commitment to ideas of holistic diversity is certainly more benign than contest mobility mediated through a commitment to false notions of scientific precision. 302 The problem is that [*191] sponsored mobility attempts to lift race outside of categorical judgments, while leaving "merit" inside such judgments, despite the fact that efforts to quantify merit also suffer from false precision and are both too broad and too narrow at the same time. It is important, therefore, to point out how those opposed to affirmative action, such as Justice Thomas, are trapped by this inconsistency. Indeed, affirmative action opponents tend to embrace two internally contradictory rubrics: "radical individualism" and "quantifiable merit," both of which are infused with, and in denial about, the collective experience of race. This is the direction in which I take Justice Thomas's critique, partly because of the demographic data that Justice Ginsburg offered in her dissenting opinion in Gratz, which Justice Thomas adopted in his own way in Grutter but ultimately ignored. 303 Justice Ginsburg showed that issues of race have a structural component that cannot be captured by individual mobility. Examples include the performance gap, the stereotyping of blacks in the name of affirmative action, and the developing admissions gap between men and women of color. 304 She marshaled statistics to demonstrate the ways in which groups of people - not just individuals within those groups - have been disad-vantaged. 305 Moreover, when individuals are selected for

qualities of [*192] "merit" primarily possessed by those who are already privileged, the chances of widely dispersed upward mobility are seriously eroded. This is true because of the tendency toward corruption in a nontransparent system, 306 and because the proxies for merit that are familiar and accepted tend to credentialize the existing social oligarchies. Justice Ginsburg's dissent in Gratz reminds us of the value of a sociological reality check. Statistics provide important information at the front and back ends of a decisionmaking process. Hard numbers, not just anecdotes, help decisionmakers understand the collective position of groups of people. Research like the Michigan Law School study, which gathered data about group performance over time, is an essential part of any effort to predict the future performance of individuals. Indeed, Justice Ginsburg's analysis suggests that decisionmakers in a system of sponsored mobility should use numbers as a source of accountability to individuals, underrepresented groups, and the public mission of the institution. Her dissent suggests that structural mobility can be sponsored, thus illuminating the broader implications of the Court's disapproval of the mechanical quantification of the value of race. Justice Ginsburg's opinion implies that there is a difference between the "good" use of numbers - using numbers as a diagnostic tool to help design an admissions process and as a feedback mechanism to keep the process accountable - and the "bad" use of numbers - using numbers as the sole measure of the ultimate goal or outcome. 307 In other words, numbers are informational in the aggregate: [*193] they can help institutions design a process that is intended to meet certain general objectives, and they can also assist institutions in determining whether the process is working. Numbers are less useful at the individual level: while they may moderately correlate with short-term future performance, they are simply not as useful in predicting the long-term future performance of individuals as many university administrators and members of the public seem to believe. 308 Although Gratz identifies how numbers cannot capture an individual's worth (or at least are over-and underinclusive as used by the University of Michigan's undergraduate program), numbers can provide relevant information in the aggregate about relationships of groups of individuals to economic, social, and political power. And while numbers do not tell us all that we need to know about an individual (if we respect the notion that individuals are unique and cannot be compared along a single metric), numbers can provide context to help situate individuals within larger domains. Numbers are informative: they are tools for assisting in making judgments but should not be confused with proxies for those judgments. If numbers should not be outcome-determinative about race, then neither should they be outcome-determinative as proxies for individual "merit" generally. 309 There is a direct relationship between efforts to quantify race and efforts to quantify merit. Both are driven in part by efficiency concerns. In addition, the quantification of merit hides the discretion of those who develop the quantification tools - standardized tests - which are normed to reward upper-class and upper-

middle-class whites. Thus, the decision by institutions like the University of Michigan's undergraduate program to use "hard edges" to capture race is a recognized compensatory response to the "hard edges" that define [*194] quantifiable notions of merit. 310 Both are over-and underinclusive categories. But it is the underinclusiveness of the hard variables that contributes to the hyper-visibility of race. 311 To the extent "merit" is considered largely quantifiable - as opposed to a set of qualitative judgments that are essentially educated guesses about future potential made in the context of an institution's educational and public missions - individualized assessments that include race as one variable are doomed to be somewhat mechanistic, albeit less transparently so, in order to compensate for the preferences embedded in the hard variables. 312 This use of race is also vulnerable to continued attack by those who feel excluded by the admissions choices being made (mostly working-class and poor whites, but status-seeking upper-middle-class whites as well), unless those choices reflect not only concerns about democratic legitimacy but also a democratic process. 313 Yet the likely immediate consequence of Grutter is that trusted admissions officials are now freer to make their decisions without a great [*195] deal of transparency. 314 They need not give reasons for their choices, as long as they avoid the mechanistic use of race. 315 If, for example, the institution has a backward-looking purpose, then it may rely on contest mobility and continue to use admission as a reward or prize. Many universities, however, do not like to speak of their admissions slots as rewards; 316 law schools in particular have a mission to train public citizens who serve their clients and society as a whole. 317 Such institutions might therefore embrace sponsored mobility, since they may use subjective criteria to supplement the hard variables in making predictions about who among their applicants are likely to serve the public. To assess the qualitative merit of their applicants in a manner consistent with Grutter and Gratz, public institutions such as Pennsylvania State University, which has 87,000 applicants a year, may feel pressured to hire extra admissions officers to read files. 318 As a short-term measure, this solution is useful, and it apparently has been adopted by the University of Michigan in order to comply with the Court's rulings. 319 But farming out admissions choices to temporary [*196] workers could easily become a subterfuge for elites to retain the power to choose applicants like themselves, since it is they who determine the relevant criteria and evaluate the results. 320 There is a caution, in other words, voiced by the very different dissents of Justices Ginsburg and Thomas. The caution is that elite self-replication is the problem, not affirmative action. In this sense, sponsored mobility will be co-opted by elites in the same way contest mobility was. Diversity will not be an aesthetic fad; instead, it will become a fig leaf to hide a commitment to the status quo. If admissions decisions are to be made in a more democratic fashion - that is, with transparency and accountability to the institution's public mission and to the taxpayers who subsidize it - then much more than the physical aesthetics of these choices needs to

be obvious. [*197] To the extent institutions of higher education make judgments that tend to prefer those who are already privileged and then use diversity in the sense of sponsored mobility to cushion that preference, race remains a visible target that may be misused to undermine public confidence in the educational judgment of these institutions. Relying on institutional good faith to cabin elite discretion has both strengths and weaknesses, even in institutions that can afford the holistic assessment of individual candidates. The strengths are tied to Justice O'Connor's assumption that institutions will, in good faith, continuously review their admissions processes to take account of context and changing demographics, in order to pursue the laudable goal of training a diverse leadership class. The weakness is the flip side of that presumption: a process that relies on nontransparent choices made by elite institutions may easily fail to achieve the democratic value of diversity that Justice O'Connor also hails. Like Conant's version of contest mobility, which used "merit" to replace "character" and ended up reproducing privilege, sponsored mobility may also turn out to benefit only those who are already advantaged. It is not the goal of diversity that is the problem. Nor does adverting to democratic legitimacy justify that goal. The problem is the failure to adopt safeguards that ensure that the goal remains connected to its justificatory principle. The Grutter opinion, in conjunction with Chief Justice Rehnquist's opinion for the Court in Gratz, holds two other potential limitations as well as a promise. Although the Court expects institutions to sponsor individuals of color rather than racially categorized groups, 321 and to revisit their use of race periodically in light of the availability of race-neutral alternatives, 322 the Court still, paradoxically, requires institutions to consider race differently from the way they consider merit. Simultaneously, the approval of limited forms of race-consciousness may invite complacency rather than vigilance. However, the Court's quixotic hope that consideration of race will be unnecessary in twenty-five years may instead prompt universities to engage the public in a larger conversation about what type of society we want to live in and what higher education institutions must do to bring us closer to that [*198] goal. 323 Ultimately, the promise is that the introduction of a soft deadline will trigger bold new experiments in which universities demonstrate renewed involvement in K-12 education, build relationships with local communities to garner more support, and consider multiple ways to realize their twin goals of educational excellence and democratic opportunity. IV. Pursuing the Promise and Heeding the Warning: Racial Literacy and the Role of Higher Education in Our Democracy Although the Grutter and Gratz decisions vindicate the principle of diversity, they do not explain how institutions of higher education should use that principle to help make admissions decisions. 324 This lack of guidance appears to be intentional: as

long as institutions do not weight race so heavily that it overdetermines admissions outcomes, their good faith is essentially presumed. It may be that Justice O'Connor and the Grutter majority presume good faith because they want the meaning of diversity to emerge from a process of experimentation, feedback, and reflection. It may be that the Court is not prepared to articulate a national definition of diversity and instead prefers for educational institutions to work out the meaning of diversity locally over time. 325 This explanation is consistent with the way Justice O'Connor interpreted narrow tailoring in the context of sponsored [*199] mobility, as well as her preference for voluntary self-correction in other contexts. 326 To the extent that an institution is committed to diversifying its student body, the Court's lack of specificity gives the institution leeway to experiment with ways to link the broad concept of diversity to the specific educational mission of the institution and the public values it aims to serve. For institutions committed to racial diversity, the three forms of mobility are all presumably constitutional as long as they do not use race categorically, overtly, and decisively to fix outcomes. An institution may consider race implicitly in conjunction with class and geography, as is done in percentage plans; 327 it may consider race explicitly as part of a holistic evaluation; and it may consider other indicia of merit that provide democratic legitimacy, such as evidence of an applicant's service commitments, pluck in the face of disadvantage, or residence in an underrepresented geographic area. 328 In the short term, individualized, holistic review of all candidates will bring colleges and law schools into compliance with Grutter. Individualized review will allow institutions to admit students of color "in meaningful numbers" to ensure that students from underrepresented communities contribute to the character of the school and, in the case of law schools, to the legal profession. 329 But in the long run, using affirmative action simply to perpetuate the status quo will likely backfire for practical, financial, and political reasons. Universities may be dogged by complaints that they are not really following Grutter, that their methods are too subjective, that their procedures lack transparency, or that their policies leave the decisionmaking power firmly in the grasp of admissions bureaucrats. Moreover, institutions committed to affirmative action as an add-on will be hard-pressed to keep up with changing demographics: admissions practices that depend [*200] on the language of critical mass may unintentionally result in an upper-limit quota that artificially suppresses the number of black and Latino admittees, despite the burgeoning number of such students in the eighteen-to twenty-four-year-old age cohort. 330 Nor will diversity alone create democratic legitimacy if the leadership class is seen as inaccessible or relatively isolated. Using diversity to expand educational access at the margins may improve an institution's track record for training leaders, but this tinkering will likely fail to achieve its ultimate mission. In fact, in a world governed by high-stakes rankings, sponsored mobility may not even continue to yield some of the public service benefits that it has in the past: schools today may

not be willing to take the chances that they once took, and the public service commitment that once defined the affirmative action "pioneers" may not define their successors. 331 Nor will affirmative action policies necessarily create diverse environments if the beneficiaries are essentially the same as those admitted under the contest mobility regime apart from their phenotype. Holistic affirmative action remains a practical and worthwhile transitional response to the Supreme Court's opinions, especially if institutions begin to incorporate diversity as a core element of merit for all applicants, as the post-Gratz Michigan policies now do. But bolder steps are also needed, especially in light of Justice O'Connor's proposed end-date. While she voiced respect for the autonomy of universities, Justice O'Connor also announced an expectation that explicit considerations of race will no longer be necessary in twenty-five years. To meet such a formidable challenge, institutions of higher education will need to contemplate reform efforts that are simultaneously local 332 and national, 333 that take the institutions' public mission seriously, and [*201] that provide the public with opportunities to think through the structural changes that have affected higher education over the last three decades. Indeed, Justice O'Connor's twenty-five-year cautionary limit requires serious long-term planning. It is, as Derek Bok put it, a warning to universities that they must "do something about the underlying problem." 334 In an age of increasing competition for scarce admissions slots, changing demographics within a global economy, escalating demands within an information-and technology-based society, state fiscal woes, and increased U.S. presence as a proponent of democracy around the world, public institutions of higher education must do more than simply maintain the status quo if they hope to gain public confidence in their pursuit of the constitutionally sound elements of diversity identified by the Court in Grutter and Gratz. To gain a deeper understanding of the problem while garnering public confidence in their admissions practices, universities need to become racially literate. A racially literate institution uses race as a diagnostic device, an analytic tool, and an instrument of process. [*202] As a diagnostic or evidentiary device, race helps identify the underlying problems affecting higher education. Racial literacy begins by redefining racism as a structural problem rather than a purely individual one. Race reveals the ways in which demography is often destiny - not just for people of color, but for working-class and poor whites as well. Race constantly influences access to public resources, while also revealing the influence of class and geographical variables. Racial literacy, therefore, continuously links the underrepresentation of blacks and Latinos to the underrepresentation of poor people generally. At a minimum, it reminds public institutions of higher learning that the "idea of access is deeply embedded in [their] genetic code" and thus, the underrepresentation of certain demographic groups illuminates their failure to fulfill their public responsibilities.

335 When race is engaged directly, as it was in Texas following Hopwood, 336 it can shed light on the confluence of forces that are truly responsible for current public dissatisfaction and that adversely affect people of all colors. 337 At one time, for example, it was commonly accepted [*203] that each generation should publicly subsidize educational opportunity for the next generation. 338 Yet today, higher education is no longer the engine of upward mobility and democratic opportunity that it was once imagined to be. Nor has it remained focused on its original purpose: to train leaders who then go on to serve society. 339 Instead, it has become "a national personnel department" 340 that sorts and ranks people and grants "the high scorers a general, long-duration ticket to high status that can be cashed in anywhere." 341 Selective universities, in particular, use their admissions practices to generate a permanent governing elite, in ways that are inconsistent with democratic values of equal opportunity, accountability, and service. As Nicholas Lemann reminds us, "the chief aim of [higher education] should be not to sort out but to teach as many people as possible as well as possible, equipping them for both work and citizenship... . The purpose of schools should be to expand opportunity, not to determine results." 342 Racial literacy sees the decline in government investment in higher education, along with the accompanying justificatory rhetoric of individual responsibility and individual "desert," as deeply problematic. Racial literacy suggests that admitting a more diverse class of students not only benefits individual students, but is also necessary to realize the social function and values of higher education, including democratic access, equal opportunity, and public service. 343 The idea that [*204] each person is alone responsible for her fate and her tuition has allowed government support for higher education to plummet while costs skyrocket. 344 Meanwhile, the goal of training future leaders - once the noble ambition of public institutions and their signature contribution to society - continues to atrophy. As an analytic tool, racial literacy locates the emerging debate on the dynamic nature of merit 345 within an explicitly democratic and future-oriented context. Racial literacy gives institutions a way to rethink [*205] merit in the context of public service and as a forward-looking rather than backward-looking project. It reminds those who keep Justice O'Connor's end-date in view that even audacious action may be appropriate and that the risks involved will be repaid in "rich dividends to society and to the concept of democracy." 346 Racial literacy helps institutions as they choose between contest, sponsored, and structural mobility. Using racially literate criteria to select among the three kinds of upward mobility is permissible under Grutter, is not jeopardized by Gratz, 347 and is not only defensible, 348 but may be politically necessary. Racial literacy discloses how all of these admissions processes use sociological proxies for assessing "merit" and future potential. Contest mobility purports to rank individuals, yet it relies on data that is closely aligned with group, not individual, attributes and

assets, such as parents' education, grandparents' socioeconomic status, and other indicators of privilege. Sponsored mobility also purports to rank individuals, yet it fails to take account of group bias, which may depress individual performance, 349 tilt the prefer-ences of individual sponsors, and systematically distort the opportunity [*206] structure for talented individuals. 350 Each type of mobility puts on the table a different understanding of whether merit is fixed or contextual, stable or responsive, real or imagined, performative or service-oriented. By situating merit within structures of opportunity, racial literacy encourages consideration of qualities that current admissions policies overlook. As a result, racially literate yet selective institutions may be able to relax their efforts to predict short-term outcomes and focus more on encouraging long-term commitments to service and community leadership. 351 Indeed, if institutions examine closely the relationship between their own educational objectives and their public mission, a larger set of democratic principles may begin to animate the process for making allocative choices, ultimately yielding something akin to "democratic merit." 352 Democratic merit emphasizes the importance of linking an institution's admissions policy for all applicants to its educational and public missions, combining a commitment to construe educational opportunity broadly with an obligation to educate individuals who then serve their communities and the larger society. It views higher education as a chance to develop more fully the talents of the American people and to train them for positions of governance and service, which, after all, was central to the original mission of public higher education in this country. Democratic merit rejects "the idea of having a general-purpose [permanent] meritocratic elite generated through university admissions," especially one that is neither public-spirited nor committed to national service. 353 It emerges from a public conversation [*207] about the future of our society rather than from a "slow-motion invisible Constitutional Convention whose results ... determine the American social structure." 354 In this respect, institutions can draw on the view, expressed forcefully in Grutter, that an educational system available to all is important to a well-functioning democracy. Public universities, on the whole, have already committed themselves to this vision, as evidenced by the remarkably consistent language of their mission statements, the majority of which indicate a commitment to public service and the training of leaders. 355 These community-oriented goals help justify the volume of taxpayer dollars, either directly raised or indirectly gained through tax abatements, required to support institutions that do not, after all, benefit everyone directly (that is, through instruction in a classroom setting). 356 Democratic merit thus responds to Justice Thomas's critique of sponsored mobility as a thin form of elitism, as well as the implication from Justice Ginsburg's analysis that contest mobility cannot assure diversity. Racial literacy also has a process dimension that uses race to guide participatory problem solving and accountability. In order to change the way race is understood,

race has to be directly addressed rather than ignored. Race is often the subtext of public conversations about institutional goals. In fact, informed discussion about why education is now more desirable but less affordable or accessible often gets drowned out by inflammatory and polarizing rhetoric about race or by equally divisive rhetoric about individual responsibility and merit. By contrast, discussion among a diverse group of citizens about the ways race reveals rather than produces these social costs helps institutional policies become more transparent and thus more legitimate. 357 For example, [*208] discussion about the consequences of Justice O'Connor's proposed twenty-five-year expiration date for considerations of race in admissions decisions might prompt institutions to shift their emphasis from education as a reward for past achievement to education as an opportunity to prepare for future service and leadership. To the extent this shift occurs as part of a larger public conversation, it will engender public confidence and much-needed public support in an era of rising tuition and declining federal and state funding. 358 Institutions could also make their processes more transparent by taking the views of various constituencies into account, even as they develop in the short term their new, holistic methods of reviewing candidate files. 359 A broadly participatory process that includes the relevant stakeholders 360 also helps satisfy the legitimacy concerns articulated by Justice O'Connor and modified by Justice Thomas's critique of elitism. Such a process would include professional educators and administrators, and would respect their expertise and specialized knowledge. 361 But this process would also seek opportunities to communicate [*209] openly and engage with a group that is sufficiently diverse and informed to be critical, 362 to mitigate the tendency of socially isolated decisionmakers to select those like themselves, 363 to pay attention to issues of race and power, 364 and to consider the connection between admissions and pedagogy. 365 [*210] Racial literacy teaches that the experiences of those who have been left out not only catalyze a deeper understanding of social structures and make visible familiar yet unexamined assumptions, but they also enable institutions to check their progress in attaining their goals. 366 Racial literacy brings these insights to the process of deliberation, emphasizing the value of dissent, 367 the need to monitor decisions through self-reflection, 368 and a commitment to transparency that includes attention to racial demographics throughout the process. 369 Race provides [*211] both information and motivation to operationalize a process of self-monitoring and experimentation that is consistent with Justice O'Connor's invitation to begin "a reflective conversation with the situation." 370 Such a process would engage in research on the long-term impact of admissions decisions. It would avail itself of opportunities for self-reflection over time, use numbers as tools for compliance and self-scrutiny rather than as definitive or predictive measures of outcomes, and remain open to experimentation. 371 While a racially literate perspective is broad enough to consider class and geography, race remains a crucial factor. Even those institutions that decline to take full advantage of Grutter's limited sanction of the use of race to pursue greater diversity cannot

ignore race in the discussion about whether higher education is fulfilling its role. Although the GI Bill, for example, provided upward mobility for returning veterans, many black veterans were denied access to its provisions. 372 Although some may discount [*212] the example as historically dated, Justice Ginsburg's dissenting opinion in Gratz should serve as a reminder that many of the disadvantages that were once dispensed under color of law are now experienced without the benefit of legal redress or attention. It is out of a deliberative and interactive process that the institution should create its mission and explore the possibilities of reconstituting itself through admissions rituals. 373 Such a process may generate a hybrid form of contest and sponsored mobility, similar to the choices made by the University of Michigan Law School and by the college post-Gratz. It is just as plausible, however, that a process that includes relevant stakeholders in a larger public conversation may prefer social engineering to yield structural mobility, similar to the GI Bill and current military programs, which provide educational opportunity in exchange for national or community service. Whatever the outcome, the process of choosing among contest, sponsored, and structural mobility must be understood as a political act with important societal, not just individual, consequences. It also bears noting that whatever form of educational opportunity is selected, university presidents, faculty, and administrators can play a vital role in engaging both internal institutional actors and the public in that selection process, working with community leaders to broaden educational opportunity more generally. 374 As part of this process, [*213] they would invite public discussion of the role of higher education in a multiracial democracy. In light of the historic opportunity presented by Grutter and Gratz, as well as the need to respond to that opportunity with a mobilized and well-informed public, admissions decisions need to be transparent. Educational leaders should consider ways to engage both grassroots organizations and institutional constituencies to promote accountability and information sharing, to learn from their own mistakes, and to inform their judgments so that they are not oblivious to what is happening and failing elsewhere. 375 If universities hope to remain viable in the face of state fiscal crises, changing demographics, and the Court's twenty-five-year expectation that educators will assume greater responsibility in addressing such challenges, they must adopt policies informed by these circumstances, seek feedback on what their graduates do after graduation, and gather information on how institutional practices can broaden relationships with the community and with primary and secondary schools. If they use the insights gained from racial literacy to constantly retest their commitments, educational institutions will move closer to meeting Justice O'Connor's twenty-five year challenge. Viewed in their most normatively appealing and democratically legitimating light, the opinions of Justices O'Connor, Thomas, and Ginsburg provide institutions with a choice among a set of practices that link democratic and educational missions. To retain public legitimacy, institutions should embed this choice in a process of

experimentalism that is informed by investigation - a process that is participatory, racially literate, and democratically accountable. To sustain public confidence, institutions of higher education need to embrace a conception of diversity that is an escalator, not just a bridge. V. Looking Forward to the Future "I think it will help change our future more than anything else we've done," said the mayor of Indian Wells, California, after the town [*214] gave the equivalent of two-thirds of its annual budget to a new state university. 376 The new state college campus is in Palm Desert, California. It sits on 200 acres of land that the city set aside in 1999 for just this purpose. In the face of California's budget crisis, local largess has made this new campus possible. Through its generosity, a partnership of business leaders, philanthropic community members, and local city officials is planting seeds for the future. More than forty percent of the students are Latino; eighty percent of the students work; and most come from "humble backgrounds, like the children of groundskeepers and maids at local resorts." 377 Few of the donors or their children will enroll, but their altruism has created opportunities for cultural richness through lectures and concerts on campus, and their pragmatism has made possible a new future for the local economy by addressing the lack of an educated workforce - especially teachers, nurses, accountants, and entrepreneurs. 378 Exemplifying most of the workforce, Raquel Borrego, a thirty-two-year-old college senior whose parents immigrated from Mexico, could not have received an education without traveling more than 120 miles to the nearest university. 379 In Worcester, Massachusetts, an unusual partnership has developed between a local private college and a public high school. Clark University officials offered funds, teachers, and other support to create University Park Campus School, which opened its doors in 1997 in a long-vacant elementary school across the street from the university. 380 Motivated by "enlightened self-interest," 381 the university acted to revitalize the local neighborhood, which had been deteriorating to the point that university officials were considering relocating to a rural area. Instead, they teamed up with the public school to make it "the centerpiece for neighborhood stability." 382 Though the undertaking was "an academic leap of faith," Clark leaders "had faith in the kids and faith in the neighborhood." 383 In the words of Tom Del Prete, the director of Clark's Hiatt Center for Urban Education: "We knew that good schools anchor people's commitment to a community." 384 Sixty percent of the students at the high school are either black, Latino, or [*215] Vietnamese; three-quarters of the students qualify for free or subsidized lunches. 385 Yet under the leadership of a visionary principal and supported by free tuition paid by the university, the senior class had a 100% passage rate on the state's mandatory achievement test and a 98% attendance rate. 386 For the principal, Donna Rodrigues, these results convey a message many educators fail to grasp: "You can't keep taking credit for the top 20% of every class. You have to teach all the other kids. The challenges are these kids, poor and minority kids." 387 Not only is the senior class graduating and going on to college, but the experience has also

attracted the attention of foundations and others who seek to replicate it. 388 Applications to Clark are up, and faculty recruitment has become easier. 389 "Certainly this partnership is seen as a national model," said Althea Frazier Raynor, a researcher at Brown University's Annenberg Institute for School Reform. "It stands out because it is making a specific commitment to help young people, mostly kids of color, in a disadvantaged community. It is giving them opportunities they probably never would have had." 390 Local business people in Palm Desert, California, and university officials in Worcester, Massachusetts, took seriously the social purpose of higher education and charted a new path. This path is flexible enough to meet both the internal needs of the institution and the external needs of the community served by the institution. It responds to the soaring demand for higher education as a means of upward mobility. It legitimates the values of democracy, such as inclusiveness in both process and outcome, participation, and accountability (including external transparency, openness to feedback, and long-term research). Finally, this new path uses race, class, and geography as triggers, and as continuous sources of information, for thinking about all of the above. Grutter invites just this kind of thoughtful investigation of allocative principles for distributing high-stakes educational opportunities in a democracy. These principles need not be reduced to fixed rules or tools for making admissions judgments. These two examples from opposite sides of the country show that a conversation is already underway that starts with the reality of local communities and situates ideas about educational excellence in a deeper and more contextual understanding [*216] of the educational and societal values that underlie admissions choices. 391 There are already many other innovative local efforts "to mobilize the contextual intelligence that only citizens possess through mechanisms for community participation in deliberation about problems, in developing and deciding among creative solutions, and in implementing those decisions." 392 Whether the context involves issues of state or regional school reform, local participants are playing important roles, "not merely to express an opinion - or demand a solution - but to help formulate and implement solutions." 393 The development of the Texas Ten Percent Plan and its implementation at The University of Texas at Austin illustrate another way in which an institution has adopted the foundational elements of this approach. The TTP embraced structural rather than sponsored mobility as the result of a democratic process. The process was informed by a racially literate, self-reflective deliberation among a diverse set of stakeholders, including professors, activists, legislators, and university administrators. Based on research, these stakeholders reframed merit by using race as a diagnostic tool rather than a categorical proxy. 394 Selecting the top ten percent of each graduating high school class was not simply an admissions criterion; it was a means to operationalize the university's commitment to public service and democratic opportunity. [*217] Although the TTP has no application to a national law school like Michigan and is by no means a national panacea, it offers a useful

example of experimental and democratic decisionmaking that changed admissions practices to expand opportunities for structural mobility. At the college level, the TTP also appears consonant with the general guidelines of both Grutter and Gratz. 395 Yet the TTP is more of a heuristic than a template. The significance of the TTP is that it helps us to explore the origin story: why the figure ten percent was chosen, how it was chosen, and how it was embedded in a transparent political process, rather than simply as an end in and of itself. The process of getting to the TTP is as important as the outcome. The involvement of local activists in the process, for example, distinguishes the Texas plan from the Florida one. 396 Other jurisdictions have borrowed the transparent process of the TTP but modified it to suit their own needs. For example, after witnessing highly publicized failures in the Chicago school system, the Illinois legislature passed the 1988 Chicago School Reform Act, 397 which mandated the creation of a "local school council" (LSC) for each elementary and high school in the city. 398 LSCs serve as an example of [*218] what Archon Fung calls "accountable autonomy": 399 local groups of "citizens and street-level public servants ... set and implement, through deliberative processes, the specific ends and means toward broad public aims such as school improvement and public safety." 400 Although a centralized authority monitors them and provides guidance, ordinary citizens are given the opportunity to "participate continuously and directly in the micro-governance" of an important public institution. 401 Moreover, parental turnout went up slightly as the proportion of black and Latino students in a school increased. 402 A public institution seeking to reach out to more of its citizens might consider a plan that would give LSC-like entities some input into the development of admissions criteria (for example, developing the relevant criteria for the students in their area) or the admissions process itself (such as nominating students for an admissions lottery or for certain spaces allocated by region in the institution). 403 Such a [*219] public institution might reject the TTP's use of high schools as the "governing authority" and reformulate the relevant subdivision to encompass a school district or a legislative district rather than indi-vidual schools. Certainly, the possibility of tying college admissions to redistricting would, at a minimum, increase public awareness of the redistricting process, an outcome that could hold accountable not only the institutions of higher education, but also the legislature itself. 404 Alternatively, communities whose members are traditionally underrepresented in post-secondary institutions could be allotted a certain number of slots at competitive or top-tier universities, to be filled by a lottery after the applicants take an entrance exam and write an essay. This approach has been implemented at selective high schools. For example, at the International Academy in Bloomfield Hills, Michigan, Newsweek's "Best High School in America," five hundred students from thirteen surrounding school districts are chosen by lottery. 405

Communities themselves could even help develop the standards of eligibility for the lottery - a kind of "nomination" of candidates. This approach would be similar to the TTP but would allow such underrepresented students access to national universities, where percentage plans would not be feasible due to the size of their applicant pools. Because efforts to select just the right candidates are costly and not necessarily accurate, an institution might consider using a more general "wild card" lottery for some percentage of its slots, while approaching its admissions practices as a whole with an eye on fulfilling its public mission as well as furthering its own relationship to the community of stakeholders that sustains its existence. 406 The bottom line is that the institution may, on its own or in response to a mobilized public, consider a range of approaches. 407 There are, for example, a growing number of collaborations between colleges and high schools in which colleges are "adopting" high schools and overseeing reform efforts or running their own high schools on campus. Many of these examples focus on urban areas with high dropout [*220] or low college attendance rates; they encourage "regular" kids to go to college. 408 These efforts to integrate the last years of high school with the first years of college "increase the college-going rate for an at-risk population" 409 and can lead to improvement of poorly performing high schools. 410 Other colleges have developed extensive outreach and collaboration programs with secondary schools, usually in their own geographic areas. 411 For example, at the Riverside campus of the University of California, university officials are not officially adopting local high schools, but they are breaking down internal barriers between academics and outreach by appointing a math professor as the head of Riverside's School-University Partnership Program. 412 Faculty members head out to local high schools to engage students and counsel them on college requirements. 413 Riverside's chancellor has been spotted roaming the countryside to tell parents that their children need to take algebra [*221] in the eighth grade. 414 At UT Austin, university officials participate in local public school assemblies for similar reasons. 415 Even more selective institutions could benefit from such relationships. Witness the data showing that students admitted under the TTP outperform their peers as freshmen at UT Austin. 416 Because of their commitment to their communities and to public service, or because they more broadly reflect the public character of the institution, these students may also be more likely to fulfill the institution's public and forward-looking mission. These surprising results suggest that, as a result of design defects in sponsored mobility, selective institutions currently overlook candidates with low test scores who can nevertheless do the work and achieve the institution's public mission. Or consider the recent experience of Columbia University when it opened a new elementary school for the children of its faculty. 417 Having battled and then learned from community critics, Columbia officials designed the new school to enroll neighborhood students as well as the children of faculty. 418 Lee Bollinger, who is now President of Columbia, explains that "there are lots of things we have to do to maintain pre-eminence in higher education in the

United States." 419 By investigating such local innovations, selective institutions of higher education can better explore the connection between selection criteria and democratic, self-reflective, racially literate admissions practices. VI. Conclusion Admissions decisions are moments when public colleges, universities, or law schools define themselves to the community. When institutions reconstitute themselves through annual selection rituals, they define who they are as educational institutions, as educational communities, and as community actors in their local and national [*222] neighborhoods. To make allocative choices that respond to the complex conditions of the early twenty-first century, while taking advantage of the Supreme Court's deference to their educational judgments, educational leaders who seek to defend affirmative action need to resist the temptation simply to defend the status quo. The Court in Grutter and Gratz has given educational institutions wide latitude to experiment with different ways to fulfill their public mission. Institutions, for example, could adopt elements of the Texas Ten Percent Plan to provide access to educational opportunity using the concept of structural mobility. In so doing, they could allocate educational opportunity through a process that would be democratically accountable, periodically reviewed and reassessed in light of the institutions' educational and public missions, and considered in conjunction with a set of relationships to other educational actors, institutions, and relevant stakeholders in the community. Although there are good reasons not to adopt percentage plans, institutions might want to draw from the "most promising" of those "race-neutral" experiments "as they develop." 420 Alternatively, they might follow the example of Clark University in Worcester and adopt local public high schools, 421 which then feed their graduates to the college while stabilizing the neighborhood and making the college more attractive to other students. While experiments with structural approaches to admissions are among the most creative alternatives intended to open opportunity broadly, they will only work if sustained by public support and initiated by a broad multiracial coalition that is also involved in monitoring their performance. States are laboratories for experimentation, 422 and the leadership in higher education needs to be bold, given the Court's hope-filled expectation that considerations of race will no longer be needed in twenty-five years and the emerging crisis of confidence in the ability of universities to fill their public role as well as their coffers. 423 To restore public confidence and, even more important, public support, institutions in the post-Grutter moment have the opportunity to do more than just hire additional application readers to identify promising candidates through sponsored mobility; they have the opportunity to invite [*223] a larger public conversation linking institutions' educational and public missions more carefully. One goal of this conversation is to help the relevant stakeholders see admissions decisions as a process, not as a fixed point on a scale. A second goal is

to rethink the roles of both race and merit, using numbers as a source of accountability rather than certainty. Either an institution needs to develop the capacity and willingness to explain why race matters in an individual case, which then connects race to a conception of individual merit, 424 or the institution needs to connect race to a specified set of goals and institutional missions and use it continuously as a diagnostic and feedback tool. In either case, racial diversity becomes an essential element of merit, rather than an add-on to merit. The Grutter and Gratz decisions may ultimately usher in a historical moment in which institutions of higher education explore issues of access to education and the scarcity of resources - issues that make limitations on that access deeply problematic in democratic terms. Universities need to explain themselves better to the broader public through a conversation rather than a declaration. It is not simply time for a public relations battle; rather, it is an occasion to align educational opportunity with its cousin, democratic participation. The question becomes who should get opportunity given the long-term goals of the institution or the needs of the larger society, rather than who "deserves" a prize because she won a race or because her presence will improve the institution's rankings in a news magazine. To find the answer, university leaders need to consider the long-term needs of the institution, the concerns of local, regional, and national constituencies, and the stability of the larger society, in a manner that is consistent with the expectation that the university will produce a new generation of citizens capable of assuming a broad range of leadership roles. The post-Grutter moment is an opportunity to talk more openly about, and investigate more thoroughly and in contemporary terms, the ways in which race helps reveal the relationship between education and democracy. It is a chance to make ourselves more racially literate and to understand the ways in which the choice among contest, sponsored, and structural mobility is a fundamentally political act. [*224] By viewing their admissions decisions as political acts, in the virtuous sense of the phrase, universities can open the door to greater public support and confidence. Ultimately, this reevaluation of admissions choices may enable universities to join with others to create institutional structures that respond to the future while holding on to the best practices of the past. At the very least, it has the potential to transform the discussion from one fixated on ersatz preferences to one that actively confronts the reality of higher education's role in a multiracial democracy with the promise that education makes to us all. FOOTNOTES:

n1. E. Digby Baltzell, The Protestant Establishment: Aristocracy and Caste in America 351 (1964).

n2. Selective colleges and universities admit a class of students, not just discrete individuals. Most colleges and universities in this country admit most applicants who meet minimal levels of qualification. See Anthony P. Carnevale & Stephen J. Rose, The Century Found., Socioeconomic Status, Race/Ethnicity, and Selective College Admissions 8 (2003), available at http://www.tcf.org/Publications/White Papers/carnevale rose.pdf (explaining that approximately two-thirds of all colleges accept at least seventy-five percent of their total applicant pool). The University of Michigan - the subject of the Supreme Court's recent affirmative action cases - is not among these colleges. It is one of the most selective public universities in the country, accepting about fifty percent of its applicant pool. See Barron's Profile of American Colleges 807 (25th ed. 2003).

n3. The term "civic pedagogy" comes from Glenn Loury, who writes that "the selection of young people to enter prestigious educational institutions amounts to a visible, high-stakes exercise in civic pedagogy." Glenn C. Loury, Foreword to William G. Bowen & Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions, at xxi, xxii (2d prtg. 2000).

n4. Cf. id. at xxii ("The goals and purposes openly espoused by our leading colleges and universities are public purposes. (And, given their considerable influence on national life and culture, this is no less true of the private institutions. What a Harvard or a Princeton seeks to achieve is, in some measure, what America strives after.)").

n5. According to the amicus brief filed by the Association of American Law Schools (AALS) in Grutter v. Bollinger, 123 S. Ct. 2325 (2003): A very small group of schools produces a remarkable share of the Congress and federal judiciary... . [The most selective] law schools alone account for 25 of the 100 senators and 38 of 436 members of the House of Representatives ... . All nine members of [the Supreme Court] attended one of the most selective law schools, and seventy-four judges in active service on the United States Courts of Appeals (nearly half the judges now sitting) received an LL.B., a J.D., or an LL.M. degree from one of this relative handful of law schools, as did nearly two hundred of the more than six hundred federal district court judges.

Brief of Amicus Curiae Association of American Law Schools in Support of Respondents at 6, Grutter (No. 02-241) [hereinafter AALS Brief].

n6. The democratic mission of law schools is an explicit part of their American Bar Association (ABA) commitments. See Ctr. for Prof'l Responsibility, Am. Bar Ass'n, Annotated Model Rules of Professional Conduct, at xv (4th ed. 1999) (stating in the Preamble that lawyers serve as "public citizens"); AALS Brief, supra note 5, at 2 (stating that law schools "prepare students to practice a profession that lies at the core of American self-governance"); see also Sweatt v. Painter, 339 U.S. 629, 634 (1950) (stating that law school cannot be effective as an "academic vacuum").

n7. See, e.g., Loury, supra note 3, at xxii ("[The] perceived legitimacy [of admissions choices] is crucial in our stratified society, where one's place in the status hierarchy can turn on access to the elite institutions. (Consider, for example, what it would mean for our civic life if, due to the expense, only wealthy families could send their children to the most prestigious institutions.) It therefore matters a great deal - not just for the colleges and universities in question, but for all of us - how these admissions decisions are made."); Patricia Gurin et al., Diversity and Higher Education: Theory and Impact on Educational Outcomes, 72 Harv. Educ. Rev. 330, 353 (2002) (examining the effects of classroom diversity on democratic outcomes).

n8. See infra pp. 135-36 (defining the term "political act"). I borrow and adapt the term "political act" from Glenn Loury, who writes: Education is a special, deeply political, almost sacred, civic activity. It is not a merely technical enterprise - providing facts to the untutored. Inescapably, it is a moral and aesthetic enterprise - expressing to impressionable minds a set of convictions about how most nobly to live in the world. Moreover, this is a venue where access to influence and power is rationed... . These "selection rituals" [for admission to prestigious educational institutions] are political acts, with moral overtones. Loury, supra note 3, at xxii. The word "political" may mislead some who think that the term means instrumental or self-interested. See, e.g., David B. Wilkins & G. Mitu Gulati, Reconceiving the Tournament of Lawyers: Tracking, Seeding, and

Information Control in the Internal Labor Markets of Elite Law Firms, 84 Va. L. Rev. 1581, 1680 (1998) ("Although conducted in the language of merit, partnership decisions [in law firms] are fundamentally political contests in which particular partners have strong incentives to support their own prot<?extend ascii 233>g<?extend ascii 233>s."). I use the term "political," however, not to demean the process but to elevate it. See, e.g., Beth Roy, Bitters in the Honey 9 (1999) (describing storytelling as a political act because it reflects political choices about how to portray the past, how to relate the past to the present, and how to defend or contest social arrangements). Here, I use the term descriptively to illuminate the process that is presently invisible, and normatively to suggest that the process should be treated responsibly.

n9. See The Connection (WBUR radio broadcast, Sept. 16, 2003) (audio recording available at http://www.theconnection.org/shows/2003/09/20030916 a main.asp) (discussing with Patrick Callan, President of the National Center for Public Policy and Higher Education, how rising tuitions at state colleges and universities have reduced the supply of affordable education); Carnevale & Rose, supra note 2, at 62; infra p. 129.

n10. We live in a "winner-take-all" society that allocates to winners a disproportionate share of resources. See Robert H. Frank & Philip J. Cook, The Winner-Take-All Society 11-14 (1995) (explaining that winner-take-all markets create a premium on winning in any competition and heighten the desirability of elite educational credentials); Felicia R. Lee, Academic Industrial Complex, N.Y. Times, Sept. 6, 2003, at A13 (noting that the commodification of college degrees has reinforced "a competitive cultural ethos that relies more and more on ranking in many fields of endeavor, including college admissions"); see also infra notes 67-68 and accompanying text (describing an ideological shift in thinking about higher education as the individual's, rather than the government's, responsibility).

n11. See Anthony Carnevale, Comments at the Century Foundation Panel Discussion on the Future of Affirmative Action (Mar. 2003) (transcript on file with the Harvard Law School Library) (noting that, by 2015, the proportion of blacks and Latinos among eighteen-to twenty-four-year-olds will have increased from thirty percent to thirty-five percent); see also infra note 61.

n12. See infra notes 63-64 and accompanying text (describing the increasing demand for higher education because of its substantial wage premium, and the

decreasing supply of educational resources, as states shift funding from higher education to prison construction).

n13. Sociological and cultural realities complicate educators' choices to equate merit with quantifiable and uniform measures. See infra pp. 144-46 (discussing the important role of U.S. News & World Report rankings in shaping admissions choices).

n14. See infra Part II.

n15. Carnevale, supra note 11; see also Roger E. Meiners, The Evolution of American Higher Education, in The Academy in Crisis: The Political Economy of Higher Education 21, 25 (John W. Sommer ed., 1995) ("The suspicion that public support for higher education has generally served to redistribute income to persons of higher-than-average wealth has existed since the inception of public universities. The governor of Kentucky denounced state support of Transylvania College in 1825, claiming, "The State has lavished her money for the benefit of the rich, to the exclusion of the poor ... The only result is to add to the aristocracy of the wealth, the advantage of superior knowledge.'" (omission in original)); infra pp. 127-30 (discussing changing demographics and the forces that affect the ability of working-class and poor individuals to afford the cost of higher education).

n16. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Kathleen Sullivan, After Affirmative Action, 59 Ohio St. L.J. 1039, 1040 (1998) (describing a "pincer movement of political and constitutional change" since Bakke); id. ("A political backlash against affirmative action dates back at least to the shift of working-class white Democrats to the Republican Party in the first Reagan election.").

n17. See, e.g., Cal. Const. art. I, 31(a) (approved Nov. 5, 1996) (codifying Proposition 209); Wash. Rev. Code 49.60.400 (2003) (approved Nov. 3, 1998) (codifying Initiative Measure No. 200); see also Lydia Ch<?extend ascii 225>vez, The Color Bind: California's Battle To End Affirmative Action (1998) (describing the origins and passage of Proposition 209); Nicholas Lemann, The Big Test: The Secret History of the American Meritocracy 281-87, 293-336 (1999) (describing the success of Proposition 209 in California).

n18. 123 S. Ct. 2325 (2003).

n19. 123 S. Ct. 2411 (2003).

n20. Sixty-nine amicus briefs were filed in support of the University of Michigan Law School in Grutter, and forty-five amicus briefs were filed in support of the University in Gratz. See University of Michigan, Amicus Briefs Filed with the U.S. Supreme Court in Grutter v. Bollinger (Law School Lawsuit), at http://www.umich.edu/urel/admissions/legal/gru amicus-ussc/um.html (last updated Apr. 4, 2003); University of Michigan, Amicus Briefs Filed with the U.S. Supreme Court in Gratz v. Bollinger (Undergraduate Lawsuit), at http://www.umich.edu/urel/admissions/legal/ gra amicus-ussc/um.html (last updated Apr. 4, 2003); see also Mike France & William C. Symonds, Diversity Is About To Get More Elusive, Not Less, Bus. Wk., July 7, 2003, at 30 (describing how the business community vigorously defended the University of Michigan's affirmative action programs due to its economic stake in attracting minority customers and workers). The former president of the University of Michigan and named respondent, Lee Bollinger, was instrumental in mobilizing support from business, military, and educational leaders. See Lee C. Bollinger, My Case, Wall St. J., June 20, 2003, at A8.

n21. See Grutter, 123 S. Ct. at 2339-41.

n22. See id.; see also infra pp. 192-93 (discussing the ways in which race is properly considered in admissions decisions).

n23. See Grutter, 123 S. Ct. at 2347 ("We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."); infra pp. 179-81 (explaining Justice O'Connor's willingness to defer to educational institutions in balancing their multiple goals, as long as their good faith is evidenced by a willingness to consider race-neutral alternatives).

n24. Derek Bok, Comments at Harvard University Civil Rights Project

Conference (July 16, 2003). While universities ostensibly help students fulfill their individual potential, they could do much more to reconcile their own institutional values of inclusiveness, opportunity, and achievement of educational benefits. See Patrick Healy, Some Colleges Must Adjust Procedures, Boston Globe, June 24, 2003, at A1 ("Perhaps the greatest challenge for all universities ... is to work with schools to overcome educational inequities and other social problems so that college affirmative action is no longer needed by 2028, Justice O'Connor's soft deadline."). Universities should do more, for example, to build a K-12 educational system that prepares a diverse pool of candidates for college. See infra Part V (discussing university efforts to improve the local education system).

n25. See Christopher Jencks & Meredith Phillips, America's Next Achievement Test: Closing the Black-White Test Score Gap, Am. Prospect, Sept.-Oct. 1998, at 44, 44-53; see also Expert Report of Derek Bok, Grutter v. Bollinger, 137 F. Supp. 2d 874 (E.D. Mich. 2001) (No. 97-75928), http://www.umich.edu/urel/admissions/research/expert/bok.html ("It is true that compared with their extremely high-achieving white classmates, black students in general received somewhat lower college grades and graduated at moderately lower rates. The reasons for these disparities are not fully understood, and selective institutions need to be more creative in helping improve black performance, as a few universities already have succeeded in doing."). See generally The Black-White Test Score Gap (Christopher Jencks & Meredith Phillips eds., 1998) (analyzing the standardized test score gap between white and black students and suggesting explanations and possible solutions).

n26. See Patricia Gurin, Comments at Harvard University Civil Rights Project Conference (July 16, 2003). Studies suggest that white students have less experience with African-American, Latino, and Asian-American students than students of color have with white students. See John Matlock et al., Univ. of Mich., The Michigan Student Study: Students' Expectations of and Experiences with Racial/Ethnic Diversity 24-25, available at http://www.umich.edu/oami/mss/downloads/synopsis0103.pdf; Expert Report of Patricia Gurin at app. E, Gratz v. Bollinger, 135 F. Supp. 2d 790 (E.D. Mich. 2001) (No. 97-75321), Grutter v. Bollinger, 137 F. Supp. 2d 874 (E.D. Mich. 2001) (No. 97-75928), http://www.umich.edu/urel/admissions/research/expert/gurintoc.html (providing empirical data about classroom and informal interactional diversity at the University of Michigan); Interview with Beverly Daniel Tatum, Acting President, Mount Holyoke College, in Cambridge, Mass. (Apr. 19, 2002) (referring to research concluding that white students are the most socially isolated students on campus when compared to international students or students of color); cf. Patricia

Gurin et al., Context, Identity, and Intergroup Relations, in Cultural Divides 133, 149-59 (Deborah A. Prentice & Dale T. Miller eds., 1999) (analyzing the relationship between group identity and intergroup interactions); Gurin et al., supra note 7, at 343-58 (discussing the effect of diversity on learning outcomes).

n27. See Geoffrey L. Cohen et al., The Mentor's Dilemma: Providing Critical Feedback Across the Racial Divide, 25 Personality & Soc. Psychol. Bull. 1302, 1315-16 (1999) (discussing the challenges that mentors face in providing feedback to students of color); cf. Peter Schmidt, U. of Michigan Prepares To Defend Admissions Policy in Court, Chron. of Higher Educ., Oct. 1998, at A32 (citing a study that found that "black and white students thought about diversity, and judged the university's efforts, in very different ways ... . Black seniors were less than a third as likely as their white peers to believe that white professors respected students of color academically and treated them fairly.").

n28. Some of this reluctance reflects changes in public attitudes and increasing levels of tolerance that are premised on the need to see people as individuals rather than as members of demographic groups. But some of this reluctance is the result of a public relations coup by those who link Martin Luther King, Jr.'s dream of colorblindness to a rigid practice of colorblindness in the face of countervailing realities. See Lani Guinier & Gerald Torres, The Miner's Canary 32-66 (2002); Vincent Hutchins & Nicholas Valentino, Driving the Wedge: The Structure and Function of Racial Group Cues in Contemporary American Politics 1-9 (Sept. 1, 2003) (unpublished manuscript, on file with the Harvard Law School Library) (describing the normative commitment to racial equality that has led political elites to substitute a "new language about race that appears to be not about race at all," and noting that elites tend to equate specific references to race with "racism"); cf. Grutter, 123 S. Ct. at 2350 (Thomas, J., concurring in part and dissenting in part) (appealing to the words of Frederick Douglass as support for a colorblind approach to higher education). Nevertheless, some racial attitudes, especially white resentment of black advancement, are framed to emphasize racial fairness to whites and are primed with both subtle stereotypic cues and more explicit appeals. See Hutchins & Valentino, supra, at 1-9; see also Lawrence D. Bobo, Inclusion's Last Hour?: Affirmative Action Before the Bush Court, Remarks at Stanford University's Center for Comparative Studies in Race and Ethnicity National Advisory Board Panel Discussion 4 (Jan. 17, 2003) (transcript available at http://ccsre.stanford.edu/EV events Bobo Inclusion.htm) (arguing that America has "moved out of the Jim Crow racism era" and into a "new form of systematic, institutionally and ideologically embedded racial inequality that [is] the regime of laissez faire racism").

n29. See Dean E. Murphy, Affirmative Action Foe's Latest Effort Complicates

California Recall Vote, N.Y. Times, Aug. 3, 2003, at A11 (noting that Ward Connerly, a prominent opponent of affirmative action, said that the Supreme Court decisions in Grutter and Gratz were both a setback and a source of motivation for people like him). The crusaders against affirmative action apparently hope to build on the fact that affirmative action remains controversial with working-class whites who do not presently enjoy the privilege of a college education, as well as with some upper-middle-class whites who suffer from status anxiety as they feel a loss of control over passing on their educational privileges to their offspring. See Carnevale & Rose, supra note 2; infra p. 150 (describing the reaction of affluent whites to the loss of their educational privilege); see also Curt A. Levey, Colleges Should Take No Comfort in Supreme Court's Reprieve, Chron. Higher Educ., July 18, 2003, at B11 (citing public discomfort with "racial preferences" while advocating the use of race-neutral alternatives to achieve diversity in higher education).

n30. See infra pp. 162-70 (discussing the development and implementation of the Texas Ten Percent Plan, which uses racial literacy to open up educational opportunities for blacks and Latinos as well as for poor and working-class rural whites); see also infra Part IV (defining racial literacy).

n31. See infra pp. 174-76 (discussing the Court's emphasis on the democratic value of higher education in Grutter and Gratz).

n32. See Guinier & Torres, supra note 28, at 11-12 (describing the ways in which individuals who are racially marginalized play a role equivalent to the canary in the mines, serving as the "first sign of a danger that threatens us all"). Gerald Torres and I use the idea of "political race" to capture the relationship between race, power, and institutional structure. Id. at 14-31. The theory of political race assigns a real meaning to race but does not view race primarily as biological or phenotypic. Id. Instead, race is viewed as political in the sense that it is tied to the distribution of social goods, can motivate collective action, promotes a critique of systemic unfairness, and can be used to build cross-racial coalitions if it is linked to issues of class, gender, and social change. Id. at 14-16, 254-302.

n33. For example, the conversation about race implicates the concerns of all who cannot ascend the higher education escalator to the American Dream. See infra

notes 104-106 and accompanying text (describing the important role that education plays in upward mobility). Race often plays a similar role in the context of military enlistment, see Adam Clymer, Service Academies Defend Use of Race in Their Admissions Policies, N.Y. Times, Jan. 28, 2003, at A12, which can provide an alternative path of educational upward mobility for those who do not move on immediately to institutions of higher education after high school. See Abby Goodnough, Where Semper Fi Is a Password Out: Officer Training Finds Niche at a Tough Brooklyn High School, N.Y. Times, Apr. 22, 2003, at B1; see also infra note 232. This analysis also applies to private universities, although this Comment focuses on the public institutions, such as the University of Michigan, that were the subject of the Grutter and Gratz cases and that educate the vast majority of U.S. students. See Karen W. Arenson, Public College Tuition Increases Prompt Concern, Anguish and Legislation, N.Y. Times, Aug. 30, 2003, at A10 ("Eighty percent of American college students attend public colleges and universities ... ."); cf. infra note 88.

n34. See generally sources cited supra notes 28, 32. It is not surprising that issues of race should emerge as higher education becomes increasingly scarce and the competition for access intensifies. According to the economic and political competition model of social psychology, prejudicial attitudes tend to increase when resources are limited and competition is heightened. See Elliot Aronson, The Social Animal 245 (4th ed. 1984).

n35. According to Carnevale and Rose, Americans "strongly associate affirmative action with racial preferences and do not view racial preferences favorably." Carnevale & Rose, supra note 2, at 28. Carnevale and Rose also report that "among White Americans, 52 percent say affirmative action should be abolished, and more than 80 percent oppose preference in hiring and promotions for racial minorities, even when the programs may help compensate for "past discrimination.'" Id. (footnote omitted).

n36. See infra pp. 140-42 (describing the relationship between democratic values and upward mobility).

n37. See infra pp. 148-49 (discussing the ways in which test scores and other "objective" measures of merit overstate their own predictive capacity and overlook the long-term performance of people of color); infra pp. 146-48 (discussing how the correlation between test scores and socioeconomic status as well as parental

education disadvantages rural whites along with blacks and Latinos); see also Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1049 (2002) ("In any admissions process where applicants greatly outnumber admittees, and where white applicants greatly outnumber minority applicants, substantial preferences for minority applicants will not significantly diminish the odds of admission facing white applicants.").

n38. See Guinier & Torres, supra note 28, at 71-73 (discussing the crucial support for the Texas Ten Percent Plan that came from conservative white legislators whose rural constituents had been underserved by the state's flagship colleges).

n39. In addition, it may be important even to the most fervent supporters of affirmative action to link race, class, and geography as interdependent variables in order to counteract the tendency of admissions officers to subvert racial categories in pursuit of other objectives, such as improving rankings in U.S. News & World Report. See infra pp. 155-57 (describing some institutions' preference for voluntary immigrants over involuntary ones because the former have higher median SAT scores).

n40. As I explain later, the admissions processes at private colleges also have political implications. See infra note 88.

n41. Even the general public supports admissions policies that are not based solely on race but nevertheless take racial diversity into account. See Carnevale & Rose, supra note 2, at 27-28.

n42. 2 Bruce Ackerman, We the People: Transformations 4-5, 17-26, 410 (1998) (defining and identifying "constitutional moments," such as Reconstruction and the New Deal, when the Constitution was transformed through popular mandate). Others have built on Ackerman's thesis by expanding the definition of "constitutional moment" to encompass less conspicuous events that nonetheless marked a change in the popular understanding of constitutional meaning. See, e.g., James Gray Pope, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. Pa. L. Rev. 287, 292 (1990) (building on Ackerman's concept by offering the more expansive notion of "republican moments," which include "periodic outbursts of democratic participation and

ideological politics" during which popular mandates produce changes in constitutional understandings outside of formal Article V procedures (internal quotation marks omitted)).

n43. Bruce Ackerman, A Generation of Betrayal?, 65 Fordham L. Rev. 1519, 1519 (1997); id. ("A constitutional moment occurs when a rising political movement succeeds in placing a new problematic at the center of American political life."). The debate-altering potential of these cases is evinced by the fact that many black leaders have already explored Grutter as an opportunity to broaden the conversation on race and education. Alice Hoffman, President of the California chapter of the NAACP, recently described her efforts to "capture the momentum from this. Timing is everything, and this definitely rekindles our efforts." Bobby Caina Calvan, States Eye Court's Race-Based Admissions Ruling: Some Calif. Leaders Seeking To Repeal Proposition 209, Boston Globe, June 25, 2003, at A3 (internal quotation marks omitted). The challenge will be to move the conversation from the margins of the underlying debate - admissions practices - to the center of the true problematic - educational equity - using the "momentum" created by Grutter to build a broad coalition among those willing to engage in the larger debate.

n44. Because of their professional mission to train public citizens, see supra note 6, law schools play a highly relevant role in this conversation. Nevertheless, the conversation must begin with an analysis of undergraduate admissions, for two reasons. First, the talent pool from which law schools must draw is necessarily limited to the cohort of college graduates. The diversity of our law schools is therefore constrained by the diversity of our college graduates. Second, despite their broader public mission, law schools tend to rely on admissions criteria that are more uniform than those employed by colleges, often overlooking creative intelligence or public service commitments in favor of narrower, quantitative measures of academic achievement.

n45. My discussion compares Justice O'Connor's majority opinion in Grutter, Justice Thomas's dissenting opinion in Grutter, and Justice Ginsburg's dissent in Gratz. Justice Powell's seminal opinion in Regents of University of California v. Bakke, 438 U.S. 265, 269 (1978) (opinion of Powell, J.), informed much, but not all, of Justice O'Connor's analysis in Grutter. Justice O'Connor's opinion arguably departed from Justice Powell's influence and moved toward the Bakke dissenters' view that remedying societal discrimination by affirmatively integrating schools is a compelling governmental interest. See Bakke, 438 U.S. at 324 (joint opinion of Brennan, White, and Marshall, JJ., concurring in the judgment in part and

dissenting in part); infra note 248. I thank Danielle Gray for this insight.

n46. Susan Sturm, Lawyers and the Practice of Workplace Equity, 2002 Wis. L. Rev. 277, 325 (internal quotation marks omitted).

n47. See infra note 391 (describing the need for universities to act as good neighbors for both instrumental and principled reasons); see also infra pp. 200-01.

n48. After reviewing the mission statements of several public colleges, Mindy Kornhaber has concluded that "public colleges and universities clearly are intended to benefit the wider society." Mindy L. Kornhaber, Reconfiguring Admissions To Serve the Mission of Selective Public Higher Education 11 (Jan. 14, 1999) (unpublished manuscript), available at http://www.civilrightsproject. harvard.edu/research/testing/Reconfiguring Admissions99.pdf.

n49. For example, the University of Michigan's mission is to achieve "pre-eminence in creating, communicating, preserving, and applying knowledge and academic values, and in developing leaders and citizens who challenge the present and enrich the future." University of Michigan, Facts About Michigan: Table of Contents, at http://www.umich.edu/newsinfo/factcont.html (last visited Oct. 11, 2003); see also University of Michigan, Mission Statement & Overview, at http:// www.admissions.umich.edu/process/review/intro/ (last visited Oct. 11, 2003) [hereinafter Michigan Mission Statement]. Published in conjunction with revisions of the undergraduate admissions process in the wake of Gratz, the statement asserts that "the University of Michigan seeks to enroll and graduate applicants who will develop and grow educationally and personally and will contribute to the University community, the State of Michigan, and the broader society." Id. The mission of the University of California is "to serve society as a center of higher learning, providing long-term societal benefits through transmitting advanced knowledge, discovering new knowledge, and functioning as an active working repository of organized knowledge." University of California, University of California: Mission Statement, at http://universityofcalifornia.edu/ aboutuc/missionstatement.html (last modified Sept. 9, 2003). At The University of Texas, the mission "is to achieve excellence in the interrelated areas of undergraduate education, graduate education, research, and public service." The University of Texas at Austin, Compact with Texans, at http://www.utexas.edu/welcome/compact (last modified May 7, 2003).

n50. See Kornhaber, supra note 48, at 10 ("These institutions are to provide instruction to build students' knowledge in various disciplines. They are also formed to conduct research to advance the boundaries of existing knowledge. The third component, service, originated with American public higher education and may be its key contribution to all universities public and private, here and abroad." (citations omitted) (citing Edward Shils, The Calling of Education (Steven Grosby ed., 1997); and Derek Bok, Beyond the Ivory Tower: Social Responsibilities of the Modern University (1982))); see also Ernest L. Boyer & Fred M. Hechinger, Higher Learning in the Nation's Service 23-41 (1981) (examining universities' role in teaching, research, and service).

n51. See Kornhaber, supra note 48, at 10 (citing John S. Brubacher & Willis Rudy, Higher Education in Transition 14, 17 (3d ed. 1976)).

n52. Id.; see also Thomas Jefferson, Preamble of "A Bill for the More General Diffusion of Knowledge" (1778), reprinted in Thomas Jefferson and Education in a Republic 80, 80-81 (Charles Flinn Arrowood ed., 1930) ("Experience has shown, that even under the best forms [of government], those entrusted with power have, in time, and by slow operations, perverted it into tyranny; and it is believed that the most effectual means of preventing this would be to illuminate, as far as practicable, the minds of the people at large ... .").

n53. See Kornhaber, supra note 48, at 10 (citing Report of the Commissioners for the University of Virginia (1818), reprinted in part in Lawrence A. Cremin, American Education: The National Experience 1783-1876, at 110 (1980)).

n54. See id.; see also Lemann, supra note 17, at 52 ("Land-grant colleges, like public schools, were supposed to be broad-gauge providers of opportunity. The idea of economic opportunity being not provided but distributed, selectively handed out, through education - an idea taken so much for granted today that we don't even think of it as a distinct idea - was not even part of the discussion.").

n55. See, e.g., Brown University, Mission Statement (Apr. 17, 1998), at http://www.brown.edu/ Faculty/Faculty Governance/mission.html ("The mission of

Brown University is to serve the community, the nation, and the world by discovering, communicating, and preserving knowledge and understanding in a spirit of free inquiry, and by educating and preparing students to discharge the offices of life with usefulness and reputation."); Cornell University, Cornell's Mission and Values, at http://www.cornell.edu/CUHomePage/Mission.html (last modified Apr. 16, 2003) ("Cornell is a learning community that seeks to serve society by educating the leaders of tomorrow and extending the frontiers of knowledge... . We apply the results of our endeavors in service to our alumni, the community, the state, the nation, and the world."); Duke University, The Mission of Duke University (Feb. 23, 2001), at http://www.planning.duke.edu/mission.html ("Duke University seeks to engage the mind, elevate the spirit, and stimulate the best effort of all who are associated with the University; to contribute in diverse ways to the local community, the state, the nation, and the world; and to attain and maintain a place of real leadership in all that we do."); Emory University, About Emory, at http://www.emory.edu/ADMISSIONS/indexa.htm?content html/extras.htmmainFrame (last modified Aug. 1, 2003) ("Emory University's mission lies in two essential, interwoven purposes: through teaching, to help men and women fully develop their intellectual, aesthetic and moral capacities; and, through the quest for new knowledge and public service, to improve human well-being. These purposes rest upon the premises that education is the most powerful social force of our time for enabling and ennobling the individual, and that the privilege of education entails an obligation to use knowledge for the common good."); Harvard University, What Is Harvard's Mission Statement? (Feb. 23, 1997), at http://www.harvard.edu/ help/faq index.html/faq110.html ("Harvard expects that the scholarship and collegiality it fosters in its students will lead them in their later lives to advance knowledge, to promote understanding, and to serve society."); University of Notre Dame, Mission Statement, at http://www.nd.edu/ aboutnd/about/mission/mission statement.shtml (last modified Sept. 9, 2003) ("The University seeks to cultivate in its students not only an appreciation for the great achievements of human beings but also a disciplined sensibility to the poverty, injustice and oppression that burden the lives of so many. The aim is to create a sense of human solidarity and concern for the common good that will bear fruit as learning becomes service to justice."); Washington University in St. Louis, University Mission Statement, at http://www.wustl.edu/university/mission.html (last visited Oct. 11, 2003) ("Central to our mission are our goals, which are to foster excellence in our teaching, research, scholarship, and service; to prepare students with the attitudes, skills, and habits of lifelong learning and with leadership skills, enabling them to be useful members of a global society; and to be an exemplary institution in our home community of St. Louis, as well as in the nation and in the world.").

n56. Grutter, 123 S. Ct. at 2340 ("We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to "sustaining our political and cultural heritage' with a

fundamental role in maintaining the fabric of society." (quoting Plyler v. Doe, 457 U.S. 202, 221 (1982))); see also infra pp. 174-76 (discussing the Court's emphasis on the development of the individual as well as the public values of education).

n57. See, e.g., John Aubrey Douglass, The California Idea and American Higher Education: 1850 to the 1960 Master Plan 2 (2000) (describing Harvard and Yale as "homes ... for educating the sons of America's elite"); Meiners, supra note 15, at 27 ("Around 1900 the Ivy League schools were essentially social centers for the sons of the wealthy. There appeared to be little concern with academics; most colleges were little more than large fraternities.").

n58. See, e.g., David Brooks, Bobos in Paradise: The New Upper Class and How They Got There 28 (2002) ("In the 1920s, sensing a threat to the "character' of their institutions, Ivy League administrators tightened their official or unofficial Jewish quotas. Nicholas Murray Butler at Columbia reduced the proportion of Jews at his school from 40 to 20 percent in two years. At Harvard, President A. Lawrence Lowell diagnosed a "Jewish Problem' and also enforced quotas to help solve it."); Lemann, supra note 17, at 151 (noting the suspicion that "character" was used as a basis for religious and ethnic discrimination); Kornhaber, supra note 48, at 10 ("Jefferson's desire to foster an enlightened citizenry was clearly hobbled by the exclusion from the university of women and African Americans."). It was not until the second half of the twentieth century that the Supreme Court made it unconstitutional for state colleges and universities to exclude African Americans on the basis of race, see Sweatt v. Painter, 339 U.S. 629, 635-36 (1950), or to segregate them after admitting them, see McLaurin v. Okla. State Regents for Higher Educ., 339 U.S. 637, 642 (1950). Women, Jews, and African Americans were not the only groups excluded from universities at this time; Latinos and Native Americans were also kept out. William C. Kidder, The Struggle for Access from Sweat to Grutter: A History of African American, Latino, and American Indian Law School Admissions, 1950-2000, 19 Harv. BlackLetter L.J. 1, 4 (2003); see also William C. Kidder, Situating Asian Pacific Americans in the Law School Affirmative Action Debate: Empirical Facts About Thernstrom's Rhetorical Acts, 7 Asian L.J. 29, 33-34 (2000) ("In 1971 there were a mere 259 [Asian Pacific American] first-year students enrolled in ABA-accredited law schools in the U.S." (citation omitted)).

n59. See, e.g., Reynolds v. Sims, 377 U.S. 533, 568 (1964) (holding that the Equal Protection Clause required a one-person, one-vote system); Baker v. Carr, 369 U.S. 186, 209 (1962) (finding that issues of redistricting were justiciable).

n60. See generally Robert Moses & Charles E. Cobb, Jr., Radical Equations: Math Literacy and Civil Rights (2001) (arguing that a choice was made in the 1960s to provide a few blacks with the opportunity to attend white schools while leaving most blacks in the South in "sharecropper schools").

n61. Today, demographic projections suggest that the cohort of eighteen-to twenty-four-year-olds will soon include even more blacks and Latinos, who are disproportionately represented by women at institutions of higher education. See Carnevale, supra note 11 (noting that, by 2015, the proportion of blacks and Latinos among eighteen-to twenty-four-year-olds will have increased from thirty percent to thirty-five percent); cf. Grutter, 123 S. Ct. at 2362 n.11 (Thomas, J., dissenting) (discussing the underrepresentation of black men compared to black women at the University of Michigan law school). We seem ill-prepared for the pressures on educational resources that will continue to arise from the increasing diversity and population density among the eighteen-to twenty-four-year-old cohort.

n62. See Brooks, supra note 58, at 27 ("The launching of Sputnik made educational rigor seem vital to the national interest."); Kornhaber, supra note 48, at 10 ("Just over a century ago, federal legislation helped to create public colleges for African Americans in historically segregated areas. Following World War II, the GI bill enabled millions of veterans, most of whom were older and not economically privileged, to receive a college education." (citation omitted)); see also Servicemen's Readjustment Act of 1944 (GI Bill), Pub. L. No. 78-346, 58 Stat. 284, 288-89 (1944) (codified at 38 U.S.C. 3011). The GI Bill made a college education financially possible for "many more Americans than could previously afford it." AALS Brief, supra note 5, at 23; see also sources cited infra note 74; infra p. 203 (describing the link between educational opportunity and service).

n63. See Brooks, supra note 58, at 36 (noting that between 1980 and the mid-1990s, the proportional wage value of a college degree over that of a high school diploma doubled); Carnevale & Rose, supra note 2, at 16-20 (summarizing findings that those who attend selective institutions of higher education enjoy a wage premium in the labor market, especially students from working-class backgrounds, and noting that a student who graduates from a large public university will likely earn thirty-two percent more than one who simply graduated from high school); Ill. Bd. of Higher Educ., Committee on Access and Diversity, Gateway to Success: Rethinking Access and Diversity for a New Century 3-4 (2001) (explaining that

college attendance has increased dramatically since the end of WWII, particularly in the last fifteen years, because college graduates earn about fifty percent more over their lifetimes than those with a high school diploma and the greater demand among employers for an increased skill set and knowledge base lessens the job prospects for high school graduates), available at http://www.ibhe.state.il.us/Board/Agendas/2001/August/access%20and%20diversity%2 0final%20 report%208-21-01.pdf; John Immerwahr with Tony Foleno, Pub. Agenda, Great Expectations: How the Public and Parents - White, African American, and Hispanic - View Higher Education 5 (2000), http://www.highereducation.org/reports/ expectations/expectations.shtml (reporting the widely held belief that a college education is necessary for obtaining a good job and achieving a middle-class lifestyle); Alan B. Krueger, Economic Scene, N.Y. Times, July 24, 2003, at C2; Lee, supra note 10, at A15 (noting that college degrees are valuable "because they translate into good jobs and good money" and have become "market-driven commodities"); Rachel Hartigan Shea, How We Got Here, U.S. News & World Rep., Sept. 1, 2003, at 76, 78 (noting that, in 2001, those who graduated from college earned eighty-nine percent more than high school graduates); see also infra Part II. But see Krueger, supra (citing Stacy Berg Dale & Alan B. Krueger, Estimating the Payoff to Attending a More Selective College: An Application of Selection on Observables and Unobservables 30 (Princeton Univ., Working Paper No. 409, 1999) (finding that the selectivity of one's undergraduate college does not substantially affect later earning power), available at http://www.irs.princeton.edu/pubs/pdfs/409revised.pdf).

n64. See Guinier & Torres, supra note 28, at 265-83 (describing the ways in which spending on prisons has surpassed spending on higher education in states such as New York and California); Troy Duster, The New Crisis of Legitimacy in Controls, Prisons, and Legal Structures, Am. Sociologist, Spring 1995, at 20, 24-25; Fox Butterfield, Study Finds 2.6% Increase in U.S. Prison Population, N.Y. Times, July 28, 2003, at A8 (describing the sizeable increase in the prison population in 2002 and reporting that, in the same year, 10.4% of black men aged 25 to 29 were in prison); Anne Gearan, Terms for Federal Crimes "Too Severe," Justice Says, Boston Globe, Aug. 10, 2003, at A16 (""Our resources are misspent, our punishments too severe, our sentences too long,' [Justice Kennedy] said in remarks for the annual meeting of the American Bar Association.").

n65. See Greg Winter, Tens of Thousands Will Lose College Aid, Report Says, N.Y. Times, July 18, 2003, at A13 (noting that "because of the swell in college-age students, and the rising popularity of higher education among low-income families, about 300,000 more people will receive Pell grants than do now," but the government's new formula for financial aid "will reduce the nation's largest grant program by $ 270 million and bar 84,000 college students from receiving any

award at all"); see also Carnevale & Rose, supra note 2, at 62 ("Already huge numbers of low-income and minority students are prepared for college but unable to afford college altogether, unable to attend the more selective and expensive colleges, or unable to persist to graduation. These students don't need better preparation. Their problem can be handled in the short term by restoring levels of "unmet financial need' ... ."); Lee, supra note 10 (reporting that government financing for college is decreasing, creating financial pressures on both colleges and students); Shea, supra note 63, at 78-79 (same).

n66. See France & Symonds, supra note 20, at 30-31 ("Despite the attention given to the Supreme Court decision, the reality is that economics plays a more important role than admission policies in determining who goes to college and who graduates... . Most minority students attend community colleges and regional state schools, whose budgets are being hit as the states deal with the worst fiscal crisis they've faced since World War II."); Karen W. Arenson, G.O.P. Plan Would Restrict Rise in Tuition, N.Y. Times, Sept. 5, 2003, at A13 (reporting that college tuition is rising at a time "when attending college has become increasingly important"); Timothy Egan, States, Facing Budget Shortfalls, Cut the Major and the Mundane, N.Y. Times, Apr. 21, 2003, at A1; Jonathan D. Glater, High Tuition Debts and Low Pay Drain Public Interest Law, N.Y. Times, Sept. 12, 2003, at A1 (reporting that, since 1985, tuition has increased 159% at public and private four-year institutions, 171% at private law schools, and 223% at public law schools); Tim Jones, Oregon Slashes Budget After Voters Reject Tax Hike To Plug Huge Deficit, Chi. Trib., Jan. 30, 2003, 1, at 9; Krueger, supra note 63 (discussing increases in state college tuitions); Louis Uchitelle, Red Ink in States Beginning To Hurt Economic Recovery, N.Y. Times, July 28, 2003, at A1; see also Elizabeth Warren & Amelia Warren Tyagi, The Two-Income Trap: Why Middle-Class Mothers & Fathers Are Going Broke 9 (2003) (finding that today's average one-income family "must forfeit decent public schools and pre-schools, [as well as] college degrees, leaving themselves and their children with a tenuous hold on their middle-class dreams"); id. at 42 (noting that, "after adjusting for inflation, in-state tuition and fees at the average state university have nearly doubled in less than twenty-five years").

n67. Michael Hout, More Universalism, Less Structural Mobility: The American Occupational Structure in the 1980s, 93 Am. J. Soc. 1358, 1392 (1988) ("The Reagan administration's budget proposal for 1988 said, "Students are the principal beneficiaries of their investment in higher education. It is therefore reasonable to expect them - not the taxpayers - to shoulder most of the costs of that investment.'"); Shea, supra note 63, at 78 ("During the Reagan era, we made a fundamental change and decided [financial aid] benefited the individual." (quoting Arthur Levine, President of Columbia Teachers College) (internal quotation marks

omitted)). Once college became the individual's responsibility, not the government's, "loans overtook grants as the chief form of federal financial aid." Id. at 79; see also U.S. Dep't of Educ., Revised Fiscal Year 1982 Budget 3 (1981) ("In proposing these reforms, the Administration assumes that families and students - not the Federal government - should be the first source of funds for educational expenses."); Lani Guinier, Reframing the Affirmative Action Debate, 86 Ky. L.J. 505, 507 & n.5 (1997-1998) ("Consistent with its "self-help' philosophy, the Reagan Administration worked to reduce higher education subsidies and to change the Pell Grants from scholarships to loans primarily.").

n68. See Brooks, supra note 58, at 18-35 (noting the association popularly made in the 1950s and 1960s between education and the national interest); Lemann, supra note 17, at 64 (describing the post-World War II view, embodied in the Commission on Higher Education Report to President Truman, that government should finance the expansion of higher education, and describing the Report as a "clarion call ... to promote democracy and provide opportunity for all" by increasing the number of students enrolled in institutions of higher education and arranging for government subsidy of this expansion). This ideological shift draws on a winner-take-all culture that stresses the individualistic aspects of the competition. See supra note 10.

n69. Jim Wright, Comments at Harvard University Civil Rights Project Conference (July 16, 2003).

n70. Barron's Profile of American Colleges, supra note 2, at 1445.

n71. Robert Paul Wolff & Tobias Barrington Wolff, The Pimple on Adonis's Nose: A Dialogue on the Concept of Merit in the Affirmative Action Debate 6 n.14 (Aug. 13, 2003) (unpublished manuscript, on file with the Harvard Law School Library) (citing Harvard University, Report of the President of Harvard College and Report of Departments, 1949-1950, at 173-79 (1954)); see also id. at 66-67 (describing a shift to selective admissions policies to accommodate increasing demand). The AALS describes a similar trend in law school admissions: Ironically, law school admissions became far more competitive at roughly the same time that significant numbers of minority students sought to attend. In 1960, for

example, Harvard Law School - then probably the most selective school in the nation - admitted nearly half of all students who applied. Today, by contrast, Harvard admits fewer than 15% of its applicants. As late as 1965, at the very tail end of the period of less competitive admissions, Harvard Law School often enrolled only one black student per year. When Herman Sweatt applied to the University of Texas Law School, the school had only just adopted a competitive admissions process at all. Today, the University of Texas Law School accepts fewer than one-quarter of its applicants. AALS Brief, supra note 5, at 24 n.13 (citations omitted).

n72. Cf. Grutter, 123 S. Ct. at 2345 (calling "academic selectivity ... the cornerstone of [the law school's] educational mission"). Selectivity has also served nonacademic functions for many institutions. Cf. id. at 2360 (Thomas, J., dissenting) ("Since its inception, selective admissions has been the vehicle for racial, ethnic, and religious tinkering ... .").

n73. Lemann, supra note 17.

n74. Id. at 49-50 (noting that Conant's new elite were supposed to devote their lives to public service and that such public contributions would repay the debt of the student to the taxpayer who supplied the education); id. at 5-8 (describing Conant's alarm that America was developing a hereditary aristocracy and Conant's dream of inventing a new elite of talented, middle-class scholars who would be more socially committed, even selfless, because of their origins); see also Brooks, supra note 58, at 24, 26 ("At its best, the WASP establishment had a public service ethic that remains unmatched. Its members may have been uncomfortable with ambition, but they were acutely aware of obligation... . Conant dreamed of replacing this elite with a new elite ... . He didn't envision a broad educated populace making democratic decisions. Rather, he hoped to select out a small class of Platonic guardians who would be trained at elite universities and who would then devote themselves selflessly to public service.").

n75. As the AALS writes in its amicus brief in support of the University of Michigan Law School:

Admissions policy changes by the leading American universities transformed these institutions from bastions of privilege into the leading players in the formation and certification of [the] national meritocracy they now are. As even a staunch critic of university admissions policy over the last six decades concedes, academically selection admissions was originally designed to "depose the existing, undemocratic American elite and replace it with a new one made up of brainy, elaborately trained, public-spirited people drawn from every section and every background." AALS Brief, supra note 5, at 23-24 (quoting Lemann, supra note 17, at 5).

n76. Cf. Michael Young, The Rise of the Meritocracy 69-72, 122-23 (1958) (introducing the term "meritocracy" to satirize a system that allows those who succeed to believe that they deserve their fate in life).

n77. See, e.g., Lemann, supra note 17, chs. 1-7 (describing the history and development of the Scholastic Aptitude Test (SAT)).

n78. See id. at 140 ("The main point was that education would be available purely on the basis of ability, not money.").

n79. I use the term "testocracy" to highlight the ways in which selection policies are heavily dependent on ranking through standardized tests. See Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 Cal. L. Rev. 953, 968 (1996) ("By testocracy we refer to test-centered efforts to score applicants, rank them comparatively, and then predict their future performance."); see also infra note 122. In this Comment, I do not discuss achievement tests, which tend to limit their claims to identifying what students have already learned. I limit the discussion to aptitude tests, which allocate opportunities to learn or succeed based on claims about their ability to predict future performance. Nor do I discuss here the important question of standards of actual performance or the way expectations of high achievement influence and reinforce student learning. In other words, this Comment should not be construed to map out all the ways in which achievement may be shaped or influenced. It is limited to a discussion of the allocation of high-stakes educational opportunity based on assumptions about who deserves that opportunity.

n80. I borrow from David Wilkins the term "visible, rankable" merit. David B. Wilkins, On Being Good and Black, 112 Harv. L. Rev. 1924, 1960 (1999) (reviewing Paul M. Barret, The Good Black: A True Story of Race in America (1999)); David B. Wilkins & G. Mitu Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis, 84 Cal. L. Rev. 493, 500 (1996). In this new "meritocratic" accounting, merit is a scarce and fixed resource, and true freedom - meaning the limitless opportunity to succeed at the frontiers of knowledge and entrepreneurship - lies in finding and rewarding those with the most individual merit.

n81. See Lemann, supra note 17, at 23-26 (describing the attraction of standardized tests that put social science to work to enable institutions to rank and sort a more geographically dispersed talent pool).

n82. David Brooks notes: In 1952 most freshmen at Harvard were products of ... the prep schools in New England (Andover and Exeter alone contributed 10 percent of the class) ... . Two-thirds of all applicants were admitted. Applicants whose fathers had gone to Harvard had a 90 percent admission rate. The average verbal SAT score for the incoming men was 583 ... . Then came the change. By 1960 the average verbal SAT score for incoming freshmen at Harvard was 678, and the math score was 695. Brooks, supra note 58, at 25. SAT scores at Harvard have continued to rise. In 2001, the twenty-fifth and seventy-fifth percentile SAT scores for incoming freshmen were 1380 and 1570, respectively. America's Best Colleges, U.S. News & World Report, 2003, at 82-83.

n83. Ironically, Michael Young, the sociologist who coined the term "meritocracy," imagined this outcome. See Young, supra note 76, at 69.

n84. See, e.g, Brooks, supra note 58, at 268; Lemann, supra note 17, at 344-47.

n85. The desire to diversify university campuses in ways that ostensibly benefited

underrepresented people of color was one of the forces pushing colleges to include race among the relevant character traits. It was not, however, the only source of pressure. See infra pp. 142, 151-59.

n86. This shift was not limited to school admissions. See, e.g., Wilkins & Gulati, supra note 8, at 1679 (describing a similar transition at law firms, which in the 1960s looked for Nordics with clean-cut appearances). Yet racial diversity launched a polarizing controversy around what constitutes merit and what constitutes legitimate admissions criteria. One of the factors contributing to the controversy was the failure of universities to include diversity as an element of merit, which meant that issues of diversity were discussed separately from both "objective" and subjective indicators of merit and character. For reasons I explore later, people are reluctant to consider race as a truly meritocratic measure. For example, only the twenty-point bonus for race in Michigan's admissions grid was controversial, even though other categories in the grid, such as residence in the Upper Peninsula of Michigan, are closely correlated with race. See infra notes 249-258 and accompanying text.

n87. The admissions process identifies who "fits" into a selective group, the very selectivity of which conveys an attitude about excellence or desert. See Samuel Issacharoff, Can Affirmative Action Be Defended?, 59 Ohio St. L.J. 669, 684 (1998) (suggesting that the greatness of universities is predicated on their selectivity); Jeffrey Rosen, How I Learned To Love Quotas, N.Y. Times, June 1, 2003, 6 (Magazine), at 52 (same); cf. Daniel A. Farber & Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law 52-71 (1997) (arguing, in contrast to the views of such scholars as Patricia J. Williams, The Alchemy of Race and Rights 103 (1991), that evaluating merit is an objective, not a political, act). The fervor that accompanies the Farber and Sherry position reflects the political terrain being defended. I am not suggesting that there is no educational or substantive content to the idea of merit. Instead, I am suggesting that there are many ways to view that substantive content and that the choice among the views is linked to other goals: no one view can claim as its source some natural order of merit. Merit is contextual and a function of institutional mission. See Sturm & Guinier, supra note 79, at 1003-08; see also infra note 345 and accompanying text (describing merit as dynamic in its relation to both the educational institution's mission and the changing relationship between an individual's talents and her environment).

n88. Much of this Comment's analysis will apply with equal force to public and private institutions. Like public institutions, private institutions distribute scarce resources in ways that maintain the institution's reputation, convey a political message about who belongs, and open doors to public goods and public roles. In addition, private institutions receive tax exemptions and federal funds and are thus partially subsidized by taxpayers. Moreover, just as public institutions of higher education have explicitly democratic commitments that form their mission statements and characterize their historical origin, private universities have a public character that goes well beyond whatever tax subsidies they receive. Nevertheless, private universities are not state institutions, even if they do receive federal funding. They may not owe a duty to serve the public in precisely the same way as public universities do. Although I include both private and public institutions in this analysis, I use the terms "public" and "private" in a philosophical rather than jurisprudential sense.

n89. See supra note 8.

n90. The admissions process has a democratic, community-building role. It has an expressive function because, as Professor Heather Gerken reminds me, it tells us who we are - and even more, who our children are. It is not like a voting rule or law that formally identifies someone as an insider or outsider. Yet it conveys a sense of belonging comparable to what many blacks sought when they fought for the right to vote. It communicates to students who walk on campus whether they belong, or whether members of their community "belong" in "the sense of being well-represented in the student body. The very concreteness of the decision to individuals - its value within our individualist national myth, the sense that it is tied to something much more objective than "politics' - is what gives the decision its power as a ritual." E-mail from Heather Gerken, Assistant Professor, Harvard Law School, to Lani Guinier (Sept. 25, 2003, 11:05:08 EST) (on file with the Harvard Law School Library). Politicizing admissions decisions, in the positive sense of the phrase - that is, making them more transparent - "will either lead to a more inclusive definition of the community, or it will undermine the power of the ritual itself because it will be seen to be "just politics' in the negative sense." Id.

n91. See Akhil Reed Amar & Neal Kumar Katyal, Bakke's Fate, 43 UCLA L. Rev. 1745, 1774 (1996) ("As Brown v. Board of Education put it, education is "the very foundation of good citizenship' and "a principal instrument in awakening the [student] to cultural values,' preparing her for participation as a political equal in a pluralist democracy." (alteration in original) (quoting Brown v. Board of Education, 347 U.S. 483, 493 (1954)); see also infra p. 140.

n92. See supra note 66; see also Dillon, infra note 333 (noting that increased tuition discourages low-and moderate-income students from applying to college, despite financial aid).

n93. Admissions choices allow institutions to make educated guesses about who is likely to succeed, in short-term and long-term ways, as well as in individual and collective terms. Individual success is an issue internal to the institution in terms of the educational goals it sets for its students: the exchange of ideas within a classroom; performance on exams or other evaluative measures of substantive learning; the emotional intelligence involved in goal setting, motivation, work ethic, and interpersonal interaction; and the civic literacy dimension of participation, collaboration, debate, and leadership. Success also has an external dimension: the production of knowledge, the training of future leaders, the development of citizens capable of competing in the global economy, the protection of national security, and the strengthening of our democracy.

n94. See supra note 90 (describing how admissions decisions communicate community membership); see also infra p. 139 (describing how admission to an elite university signals special status). I am not advancing here, however, a well-developed normative claim about the university's role in a democracy. Instead, I am hypothesizing from national policy and local experiments, which have enabled universities to assume public responsibilities. For example, some universities have developed partnerships with local communities, as I describe in Part V; others have become racially literate and have embraced their larger role in structuring mobility in exchange for service, as I describe in section II.C and Part IV; still others have associated admissions with a more democratic understanding of merit, as I describe in Part IV. Each case reminds us that democracy and higher education are not necessarily mutually incompatible. Also illustrative is the public role played by Lee Bollinger, then-President of the University of Michigan, in defending affirmative action in Grutter and Gratz. While his public visibility may have been unusual, Bollinger successfully mobilized support among elites as well as grassroots activists. His unflinching defense of affirmative action in Grutter and Gratz dramatically changed the nature of the conversation and certainly contributed to the Supreme Court's unexpected vindication of his position. Of course, the danger is that the Court victory will generate complacency rather than vigilance. Cf. infra note 121 and accompanying text.

n95. Again, I do not intend to denigrate the process by associating it with the term "political." Instead, I hope to highlight it, descriptively and normatively. See supra note 8. I am trying to foreground several related questions. First, is merit quantitative or qualitative? Second, is merit fixed, or is it dynamic and changing in response to environmental variables, including the opportunity to succeed at a selective institution? Third, is merit a natural element that inheres in the admissions criteria of all academic institutions, or is it functional and contextual, related to the mission of the particular institution? Fourth, is merit forward-or backward-looking? Is it an effort to perpetuate the status quo, or is it an attempt to anticipate the needs of the future? The answers to these questions depend on whether one believes selectivity itself conveys the necessary information about excellence and, if so, whether the metric for such selectivity should be universal, whether SAT or LSAT scores or high school grades. Alternatively, one might believe that selections should depend on an institution's distinctive substantive mission, which is tied to the changing needs and objectives of its many relevant communities. And if that mission is to serve the broader public, to improve K-12 education in the state, or to produce lawyers who are public citizens, can an institution be "excellent" if it succeeds in meeting its mission even though it is not selective?

n96. For reasons both pragmatic and principled, upward mobility plays a dominant role in configuring the relationship between higher education and the values of individualism, democratic ideals, and merit. For example, higher education is one of the few places in our society that "encodes class gradations in a nuanced way." Roy, supra note 8, at 4 (describing the recognizable differences between the high school dropout, the Ivy League graduate, and the state college alumnus); see also William G. Bowen & Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions 256-58 (1998) (describing the value added of attending a selective institution). Bowen and Bok found that "the more selective the college black students attended, the more likely they were to graduate and to earn an advanced degree, the more satisfied they were with their college experience, and the more successful they were later in life." Krueger, supra note 63 (summarizing Bowen & Bok, supra, chs. 3-7).

n97. See John H. Langbein, The Twentieth-Century Revolution in Family Wealth Transmission, 86 Mich. L. Rev. 722, 734-35 (1988) (explaining that the provision of a college education is the primary vehicle, with the exception of the family home, of intergenerational wealth transmission).

n98. Individualism informs and is informed by the American Dream. Sociologist

Robert Bellah describes individualism as the essential philosophy of modern America, although a deeply problematic one. Robert N. Bellah et al., Habits of the Heart 164 (2d ed. 1996); see also id. at vii-viii ("We are united ... in at least one core belief, even across lines of color, religion, region, and occupation: the belief that economic success or misfortune is the individual's responsibility, and his or hers alone."); id. at 81 ("Insofar as they are limited to a language of radical individual autonomy, [Americans] cannot think about themselves or others except as arbitrary centers of volition. They cannot express the fullness of being that is actually theirs."). Nicholas Lemann describes a similar concept in what he calls "one-way libertarianism." Nicholas Lemann, The New American Consensus, N.Y. Times, Nov. 1, 1998, 6 (Magazine), at 37. Beth Roy, a sociologist who interviewed white graduates of Central High School in Little Rock, Arkansas, saw the relationship between individualism and the American Dream first hand: "The myth of Horatio Alger ... deeply imbues the white American psyche and is central to the ideologies internalized by white youths in the fifties, and still today. Indeed, it creates the terms by which we ... judge our self-worth." Roy, supra note 8, at 325; see also id. at 24 ("Nothing was owed anyone except what they earned by dint of hard work and responsibility... . Conversely, if one did that work ... then there was something owed: the American dream."). It is unsurprising that the majority in Grutter views individualized assessment as perhaps the most important characteristic of a lawful affirmative action program. See Grutter, 123 S. Ct. at 2343; see also infra Part III.

n99. Lemann, supra note 17, at 52 (describing how opportunity for all is "the most deep-seated wish in American culture"); see also id. at 50 (calling opportunity in America a "distinctive national preoccupation").

n100. Marshall Berman, The Politics of Authenticity: Radical Individualism and the Emergence of Modern Society 313-15 (1970). Meanwhile, a related, though more propertized, concept of the individual was developing on the other side of the Channel. Described critically by C.B. MacPherson as "possessive individualism," this English brand of individualism primarily emphasized ownership of the self, viewing society through the lens of a market metaphor. See, e.g., C.B. MacPherson, The Political Theory of Possessive Indi-vidualism: Hobbes to Locke 270 (1962) ("The basic assumptions of possessive individualism [are] that man is free and human by virtue of his sole proprietorship of his own person, and that human society is essentially a series of market relations."); id. at 263 ("The individual is essentially the proprietor of his own person and capacities, for which he owes nothing to society."); id. at 3 ("[Liberal-democratic theory's] possessive quality is found in its conception of the individual as essentially the proprietor of his own person or capacities."); id. at 271 ("[A] possessive market society is a series of competitive and invasive relations between all men, regardless of class: it

puts every man on his own.").

n101. Berman, supra note 100, at 89.

n102. See Jason P. Schachter et al., U.S. Census Bureau, Migration and Geographic Mobility in Metropolitan and Nonmetropolitan America: 1995 to 2000, at 1 (2003), available at http://www.census.gov/prod/2003pubs/censr-9.pdf ("Geographic mobility has long been an important aspect of American life ... . At an individual level, moving has a number of potential impacts, such as the potential for expanding economic opportunity or raising residential satisfaction."); id. at 2 (reporting that more than 120 million people, or 45.9% of the U.S. population, moved between 1995 and 2000). Nicholas Lemann compares higher education to a new frontier, noting that, "like the frontier, this distinctive American institution could give every citizen the opportunity to rise in the world." Lemann, supra note 17, at 48; see also id. at 49 (attributing to James Conant the view that America should use higher education as the "official repository of opportunity" to find "the equivalent of those magic lands of the old frontier").

n103. See Roy, supra note 8, at 325 ("The myth of American classlessness is intimately bound up with expectations of individual economic success.").

n104. See Lemann, supra note 17, at 121 ("Inevitably, "education becomes one of the principal means of vertical social mobility in the technical world,' and - notwithstanding Marx, or Michael Young - everybody benefits." (quoting Clark Kerr et al., Industrialism and Industrial Man: The Problems of Labor and Management in Economic Growth 37 (1960))). For both voluntary and involuntary immigrants, education was pivotal to the quest for freedom and opportunity. See Clark Kerr, The Great Transformation in Higher Education: 1960-1980, at 22 (1991) (identifying access to education as a primary reason for immigration to the United States, especially for immigrants leaving nations that confined educational opportunities to members of the higher classes); Clifton R. Wharton, Jr., Public Higher Education and Black Americans: Today's Crisis, Tomorrow's Disaster?, in Minorities in Public Higher Education: At a Turning Point 3, 3 (1988) (noting that blacks have ardently believed in education "as central to the uniquely American belief in bettering one's lot in life" and that "the quest for educational opportunity has been largely indistinguishable from the quest for freedom and justice").

n105. The term "sorting hat" comes from the popular novel Harry Potter and the

Sorcerer's Stone. It refers to a magic cap that reads minds and evaluates character in a sorting ceremony in order to assign future witches and wizards to residential houses. See J.K. Rowling, Harry Potter and the Sorcerer's Stone 114-21 (1997). The selection determines their friends, classmates, and the noble history to which they begin to fasten their identities. The hat itself can "cap them all," since "there's nothing hidden in your head the Sorting Hat can't see." Id. at 117 (emphasis omitted). The sorting ceremony determines a wizard's destiny. Here in the "Muggle" world, id. at 53, we ask standardized testing and admissions officers to play a similar role. Unfortunately for us, educational selection rituals are no magic hat.

n106. Beth Roy writes that "this theory of meritocracy ... is taught to young people on a very personal level, internalized early and well." Roy, supra note 8, at 325. The Central High graduates she interviewed, for example, considered high school to be "the essence of promise for the future," a place from which "anyone" could go on to succeed. Id. Accepting the meritocracy on its own terms, some Americans argue that affirmative action is problematic because it seems explicitly ascribed. For those individuals, the perception of a nonascribed meritocracy is more ideologically appealing because it represents, at its best, an "ideal" for distributing privilege to those most "deserving." By contrast, affirmative action, since Bakke, is presented as a compromise to support deviations from agreed-upon standards in order to promote some other end: diversity. Whereas meritocracy is both a means and an end, affirmative action is perceived as only a means toward a diffuse end - one that is vulnerable because it fails to articulate clearly who "fits" as contributing to diversity.

n107. See Carol S. Dweck, Motivational Processes Affecting Learning, 41 Am. Psychologist 1040, 1046 (1986) (finding that learning yields to work and does not simply depend on fixed, innate qualities).

n108. I am not advancing a theory of democracy in this Comment. I am instead trying to identify the ways in which values often associated with democracy, such as participation, fairness, and accountability, have informed to varying degrees the practice of admissions. In this context, it is important to note that democracy is not only about holding elections to choose political leaders. See, e.g., Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community 31 (2000) (describing the modes of political participation that are integral to democratic citizenship); Heather K. Gerken, The Value of Second-Order Diversity

to Democracy 1-2 (June 29, 2003) (unpublished manuscript, on file with the Harvard Law School Library) (describing the important role of the jury as a democratic institution).

n109. See AALS Brief, supra note 5, at 10 (stating that the primary mission of law schools is "not to reward recent college graduates for doing well, but to produce lawyers who serve their clients and the public"); supra notes 6-7. Democratic accountability is, however, by no means limited to law schools. See supra Part I.

n110. See infra notes 234-239 and accompanying text (describing the relationship between diversity, learning, and democratic participation).

n111. Of course, selecting a few group members to benefit from higher education helps to debunk racial stereotypes and provides role models to encourage others, ultimately aiding the group as a whole. But only the few who are selected actually enjoy the upward mobility associated with such selection. And often individuals who otherwise decline to associate with the group are selected as its representatives. See infra note 166 (discussing the way in which some black students admitted through affirmative action policies do not associate with African Americans).

n112. According to social psychologist Elliot Aronson, who reviewed a variety of works on the subject of prejudice, several nonexclusive factors contribute to this kind of racial stereotyping, including "economic and political competition or conflict," "displaced aggression," and "conformity to existing social norms." Aronson, supra note 34, at 245.

n113. Roy, supra note 8, at 338. Absent scapegoating, they fear that "they are not smart enough - or not good enough in some terrifyingly mystified way they cannot begin to understand." Id. at 338; see also Richard Sennett & Jonathan Cobb, The Hidden Injuries of Class 33 (1972) ("The fear of being summoned before some hidden bar of judgment and being found inadequate infects the lives of people who are coping perfectly well from day to day ... .").

n114. See Roy, supra note 8, at 338. As Beth Roy explains:

Americans' belief that anything is possible, our deep faith in rags-to-riches as a plausible life plan, at one and the same time requires a diluted sense of the meaningfulness of class and also inhibits understandings of how class is meaningful. Our lack of class identity also helps to isolate us as myths of unlimited opportunity cause us to view others with a keenly competitive eye. Since we can neither measure nor explain our own successes and failures in terms of social location, we watch carefully how we compare to others. Id. at 326. One alternative scapegoat is "the government," which is associated with handouts to blacks, Latinos, and others. Guinier & Torres, supra note 28, at 40.

n115. Witness the intergenerational wealth transfer that enables white middle-class families to accumulate, on average, "net financial assets nearly 55 times greater than that of their black counterparts." Guinier & Torres, supra note 28, at 47. For many whites, grandparents help subsidize their education, whereas for many blacks, an education is an essential means of gaining financial security to help support their grandparents. Cf. Robert Gavin, In Paying for School, More Grand Gestures, Boston Globe, Sept. 6, 2003, at A1 (describing a white grandparent transferring $ 500,000 in assets to pay for nine grandchildren to attend prep school, and reporting that fifty-four percent of grandparents in one survey said they planned to finance some part of their grandchildren's college education). Or consider a recent study finding that black job applicants, including those with better credentials than white applicants, were consistently overlooked. See Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination 2-3 (Nat'l Bureau of Econ. Research, Working Paper No. 9873, 2003) (finding a fifty-percent gap in callback rates between applicants with stereotypically white names and those with stereotypically black names with identical resumes, as well as evidence that higher-quality resumes aid whites more than blacks), available at http://papers.nber.org/papers/w9873.pdf.

n116. See Putnam, supra note 108, at 205 (noting that "mobility undermines civic engagement and community-based social capital"); David Riesman, The Lonely Crowd: A Study of the Changing American Character, 155-56 (26th prtg. 1973) (discussing how success cuts one off from the group).

n117. See Tamar Lewin, One State Finds Secret to Strong Civic Bonds, N.Y.

Times, Aug. 26, 2001, at A1 (noting that, in some communities, individualism may limit civic engagement to those most privileged); see also Guinier & Torres, supra note 28, at 32-107 (describing the ways in which individualism, in the form of colorblindness, undermines the capacity of a racialized group to act collectively to challenge its condition). While race-consciousness can make racial minorities "more ... resilient" and "affirm the individual's ability to cope with the challenges of discrimination," a "political system premised on radical individualism" may destroy that powerful sense of common destiny. See id. at 82, 214. Even Robert Bork criticizes radical individualism as undermining a once-healthy American society. See Robert H. Bork, Slouching Towards Gomorrah 11 (1996) ("Radical individualism ... shatters a society into fragments of isolated individuals and angry groups.").

n118. See Lemann, supra note 17, at 155-56 (explaining that, as a culture of testing evolved, blacks, because of a history of inferior educational opportunities and substandard social conditions, were in a "uniquely bad position" to perform well on such tests); see also infra p. 148 (discussing the way in which the middle and upper classes are able to gain a strong advantage in a system that relies so heavily on testing).

n119. Although individualism purports to combine the ideal of upward mobility with a renouncement of ascribed identity, such a model camouflages the fact that many upper-class Americans born into the top decile of income distribution tend to remain in that decile. See Tom Hertz, Rags, Riches and Race: The Intergenerational Economic Mobility of Black and White Families in the United States, in Unequal Choices: Family Background and Economic Success (Samuel Bowles et al. eds.) (forthcoming) (manuscript at 15-16, on file with the Harvard Law School Library); see also Memorandum from Gavin Kearney, Research Fellow, Institute on Race and Poverty, University of Minnesota Law School, to Lani Guinier (Dec. 29, 1999) (on file with the Harvard Law School Library) (explaining that by 1970, 82% of the wealthiest men in America were born into wealth and only "4% of the richest men came from lower-class origins").

n120. Roy, supra note 8, at 5.

n121. For example, universities are presumed to select and educate future leaders,

but as Professor Gerken reminds me, local community leaders rarely attend these schools. Moreover, socioeconomic gaps in college attendance undermine the claim that universities educate all citizens or foster social mobility. Likewise, pedagogical commitments to train future citizens often take a back seat to faculty research interests. Similarly, conversations about diversity remain curiously off-center when students of color are admitted primarily to become part of the "curriculum," teaching socially isolated white students lessons they otherwise would not learn. For university officials who fully support affirmative action, their commitment to diversity often remains marginalized and does not inform their understanding of admissions choices more generally. In addition, although universities play a role in shaping public opinion, they can be properly criticized for creating conversations primarily for elite consumption.

n122. As described by sociologist Ralph H. Turner, contest mobility is "a system in which elite status is the prize in an open contest and is taken by the aspirants' own efforts... . Since the "prize' of successful upward mobility is not in the hands of an established elite to give out, the latter can not determine who shall attain it and who shall not." Ralph H. Turner, Sponsored and Contest Mobility and the School System, 25 Am. Soc. Rev. 855, 856 (1960) (footnote omitted). Contest mobility disapproves of "premature judgments" or of "anything that gives special advantage to those who are ahead at any point in the race." Id. at 858. While I borrow this term from the sociological literature, I use the term in a slightly different way. I use "contest mobility" to describe a system in which individuals gain access to the "spoils" of higher education by outperforming their competitors on a variety of quantifiable measures. Contest mobility is based on the assumptions that "merit" can and should be quantified through educational testing and that candidates should be judged and ordered along numerical metrics. It is the foundation of the modern "testocracy" and also consistent with notions of "radical individualism." See Carnevale & Rose, supra note 2, at 21 ("The common perspective in the merit-based admissions decisions is to judge applicants on the basis of their high school achievements ... . Students are sorted ... on the basis of their ranking in a hierarchy ... regardless of where [their] achievements occurred and regardless of the applicant's socioeconomic background.").

n123. Because the prize is thought to be "earned" rather than inherited, elite status is not accompanied by a sense of noblesse oblige; this is the antithesis of James Conant's anticipated quid pro quo. See Lemann, supra note 17, at 49-50 (describing Conant's view that taxpayers should subsidize education for the talented based on the idea that such talent "will later serve the taxpayer by serving the entire nation" (quoting Conant) (internal quotation marks omitted)); see also infra p. 150.

n124. The assumption in contest mobility is that the university admissions process is based on "the principle of evaluative fairness." Wolff & Wolff, supra note 71, at 5. More specifically, some would argue that the conditioning of admissions decisions on grades and test scores is the hallmark of a system of evaluative fairness because it fosters the concept of personal responsibility that lies at the core of our individualistic ideology. See id. at 50-51 (comparing a hypothetical student who, with little effort, garnered a stellar high school resume, with a minimally accomplished student who, through his effort, nonetheless achieved more than might be expected, and maintaining that a selective college would still more likely accept the former). Richard Banks refers to this concept as the "individualist reward rationale." R. Richard Banks, Meritocratic Values and Racial Outcomes: Defending Class-Based College Admissions, 79 N.C. L. Rev. 1029, 1038-39 (2001).

n125. The focus on grades, test scores, and other indicia of merit ensures that students who have previously demonstrated an ability to take advantage of educational opportunities will continue to do so. See Wolff & Wolff, supra note 71, at 10. Because of the association between personal background and high-stakes testing, the idea of rewarding student effort and drive is not recognized in an admissions process driven by quantitative measures of excellence. See id. at 50-52, 52 n.46 (citing Gratz, 123 S. Ct. at 2428-29) (inferring from the Gratz majority's discussion of Regents of University of California v. Bakke, 438 U.S. 265, 324 (1978) (appendix to the opinion of Powell, J.), an acknowledgement of "the legitimacy of rewarding effort rather than performance," but pointing out that admissions decisions often reward natural endowment rather than academic effort). Interestingly, a recent national survey indicated that the public is almost evenly divided on whether a university should admit a wealthier "A" student from a private high school instead of a working-class "B" student from a public school who also worked during high school to support her family. See Carol M. Swain et al., Life After Bakke Where Whites and Blacks Agree: Public Support for Fairness in Educational Opportunities, 16 Harv. BlackLetter L.J. 147, 167-68 (2000).

n126. U.S. News & World Report is undoubtedly the most influential voice in judging who "wins" and "loses" in the contest for elite status. See Nicholas Thompson, The Best, The Top, The Most, N.Y. Times, Aug. 3, 2003, 4A (Education Life), at 24 ("If there were a ranking of the rankings based on influence, the winner would undoubtedly be U.S. News's "America's Best Colleges.'").

n127. Peter Sacks writes: Standardized tests serve the perceived economic interests of colleges and universities, particularly their need for prestige, which is often the main asset they have to market to potential "customers." ... Harvard would not be Harvard if those math or verbal SAT scores averaging 750 or so didn't leap from the page at readers of U.S. News and World Report. Peter Sacks, Standardized Minds: The High Price of America's Testing Culture and What We Can Do To Change It 15 (1999).

n128. The rankings illustrate the ways in which the social externalities of the testocracy are self-perpetuating. For example, one significant factor in determining a college's rank is the institution's twenty-fifth to seventy-fifth percentile range of scores on standardized tests. See America's Best Colleges, supra note 82, at 82-83. Thus, the extent to which certain classes of people are disadvantaged on standardized tests strongly correlates with the extent to which these same classes are, at least in the absence of some type of corrective program like affirmative action, shut out of the most elite institutions.

n129. See Thompson, supra note 126, at 24; see also Randall Collins, The Credential Society: An Historical Sociology of Education and Stratification 195 (1979) (characterizing as "credential capitalism" the attitude that "one should get as much education as possible in order to cash in on as much career advancement as possible" and noting that this has been one of the "traditionally dominant ideologies about American education"); David A. Garvin, The Economics of University Behavior 15 (1980) ("Institutions can trade off increased prestige - which is expensive and involves higher costs - for higher tuition, while still attracting students in sufficient numbers and of acceptable quality.").

n130. See Thompson, supra note 126, at 24 (citing Richard Fuller, former admissions dean of Hamilton College, who described the influence of rankings on Hamilton's recent adoption of an early admissions program and decision to make the submission of SAT scores optional).

n131. The inflexible standards of college rankings render them unable to capture

the nuances of an institution's true educational experience. According to Lee Bollinger, President of Columbia University and former President of the University of Michigan, "rankings give a false sense of the world and an inauthentic view of what a college education really is." Id. (quoting Bollinger) (internal quotation marks omitted).

n132. See William D. Adams, The Status Game, L.A. Times, Apr. 13, 2003, at M6 ("Complicity [of colleges in the ratings game] is a disservice to our students and prospective students, and it helps distort various public policy issues affecting higher education."). More and more, universities are attributing tremendous value to competitive positioning; universities thus increasingly resemble meritocratic marketplaces. See Sacks, supra note 127, at 15 (affirming that colleges and universities highly value rankings as a means to sell their main asset, prestige, to applicant customers); Roger L. Geiger, The Competition for High-Ability Students: Universities in a Key Marketplace, in The Future of the City of Intellect: The Changing American University 82, 82 (Steven Brint ed., 2002) ("Competition and markets have long been present in the decentralized American system of higher education. But in all likelihood American colleges and universities have become more market-driven in the last two decades."); James Engell & Anthony Dangerfield, The Market Model University: Humanities in the Age of Money, Harv. Mag., May-June 1998, at 49 (bemoaning, in a critique of university "divestment" in the humanities, how market ethos now dominates the organization of universities as they compete to attract students). For a more formal economic analysis of the "meritocratic marketplace," see Garvin, supra note 129, at 15.

n133. The irresistible desire to remain "elite" requires continued reliance on supposedly "objective" measures of merit. This reliance, in turn, provides the external validation required by the measures themselves to justify their existence in spite of whatever disparate impact they may have on the basis of class, race, gender, or any other category. Interestingly, the University of California at Berkeley, the only public institution in U.S. News & World Report's top twenty national universities, see America's Best Colleges, supra note 82, at 82-83, is also the lone institution on that list whose President has directly challenged the long-sacred reliance by elite institutions on standardized test scores. Richard Atkinson, President of the University of California, characterized the dilemma that elite public institutions face as a question of how "to honor both the ideal of merit ... and the ideal of broad educational opportunity." Peter Schrag, War on the SAT, Am. Prospect, May 6, 2002, at 24 (quoting Atkinson) (internal quotation marks omitted).

n134. See William Julius Wilson, The Bridge over the Racial Divide: Rising Inequality and Coalition Politics 97 (1999) ("The standard or conventional measures of performance are not sensitive to the cumulative effects of race or ethnicity. By this I mean having one's life choices restricted by race, regardless of class, because of the effects of living in segregated neighborhoods ... , because of the quality of de facto segregated schooling, and because of nurturing by parents whose experiences have also been shaped and limited by race ... ."); Banks, supra note 124, at 1046 ("Achievement is undeniably linked to the very accidents of birth thought to be displaced by the implementation of equal opportunity.").

n135. See Brief for the National Center for Fair & Open Testing (Fairtest) as Amicus Curiae Supporting Respondents at 4, Grutter (No. 02-241) (stating that "the nature of test construction ... introduces both racial and gender biases that adversely affect students of color and women"); Wilson, supra note 134, at 98 ("Children's test scores are affected not only by the SES of their parents, but also by the SES of their grandparents. This means that it could take several generations before adjustments in socioeconomic inequality produce their full benefits."); William C. Kidder & Jay Rosner, How the SAT Creates "Built-in Headwinds": An Educational and Legal Analysis of Disparate Impact, 43 Santa Clara L. Rev. 131, 133 (2002) (claiming that the "process of selecting and developing SAT questions," while seemingly "facially-neutral and non-discriminatory, ... unfairly exacerbates the test's already significant disparate impact on African Americans and Chicano test-takers"); Sturm & Guinier, supra note 79, at 982 ("Conventional selection methods advantage candidates from higher socio-economic backgrounds and disproportionately screen out women and people of color, as well as those in lower-income brackets."); Michael B<?extend ascii 233>rub<?extend ascii 233>, Testing Handicaps, N.Y. Times, Sept. 21, 2003, 6 (Magazine), at 18 (noting the rural-suburban test score gap and the staggering effects of parental education on students' test scores); Diana Jean Schemo, SAT Math Scores Are Highest in 35 Years, N.Y. Times, Aug. 27, 2003, at A21 (stating that, for the 2003 SAT, "the scores of students from rural areas and large cities continued to lag, and women continued to lag behind men, particularly in math"); see also Ellen Barry, Broader, Varied SAT Advocated, Boston Globe, Aug. 10, 2002, at A1 ("Over recent years, the SAT has been under fire from critics who charge that it reflects only a narrow slice of human intelligence and persistently favors white applicants over minorities."); Sam Dillon, New Federal Law May Leave Many Rural Teachers Behind, N.Y. Times, June 23, 2003, at A1 (discussing geographic inequalities confronting rural teachers).

n136. Sturm & Guinier, supra note 79, at 988 (noting that "the correlation between family income and SAT is nearly four times larger than the incremental improvement in prediction offered by the SAT used in conjunction with high

school grades"); see AALS Brief, supra note 5, at 9 ("While grade-point averages and test scores may play a significant role in the admissions process, they do not infallibly predict law school performance, let alone career contributions."); Lani Guinier et al., Becoming Gentlemen: Women, Law School, and Institutional Change 35 (1997) ("Quantitative entry-level credentials the law school employs to determine admissions, particularly the LSAT, explain very little about [students'] performance once they have entered law school."); James W. Loewen, Social Science in the Courtroom: Statistical Techniques and Research Methods for Winning Class-Action Suits 173 (1982) (stating that, although rural in-state applicants scored 100 points lower on the SAT than suburban out-of-state applicants to the University of Vermont, in-state residents "closed the gap or even edged on top" of their suburban peers by their senior year); Richard O. Lempert et al., Michigan's Minority Graduates in Practice: The River Runs Through Law School, 25 Law & Soc. Inquiry 395, 490 (2000) ("LSAT and UGPA, which in many law schools are the most prominent admissions screens, have almost nothing to do with measures of achievement after law school ... ."); Sturm & Guinier, supra note 79, at 971 ("A recent study of the University of Pennsylvania Law School found that LSAT scores were weak predictors of performance in law school. LSAT explained 21% of the difference in third year grades. For first-and second-year students, it explained even less: 14% and 15% respectively."); id. (noting that an individual's height provides a stronger basis for predicting his or her weight than an individual's SAT score allows prediction of his or her first-year grades (citing David Owen, None of the Above: Behind the Myth of Scholastic Aptitude 207 (1985))); see also Jack Greenberg, Affirmative Action in Higher Education: Confronting the Condition and Theory, 43 B.C. L. Rev. 521, 533 (2002) (noting that, for two years running, the top student in the graduating class at Columbia Law School was admitted off the wait list and that, in another year, the editor-in-chief of the Columbia Law Review was admitted from the wait list). That the LSAT is at best a modest predictor of grades in law school is evident from a comparison with the much higher correlation required in voting cases to demonstrate a relationship between the race of voters and the candidates for whom they vote. See, e.g., Loewen, supra, at 187-94 (describing the use of correlations in voting rights litigation and noting that an "important and significant" demonstration of white bloc voting is required in order to prevail on a vote dilution claim); James W. Loewen & Bernard Grofman, Comment: Recent Developments in Methods Used in Vote Dilution Litigation, 21 Urb. Law. 589, 589-90 (1989) (clarifying methodological issues pertaining to analysis of voting patterns). In voting cases, correlations of 0.8 or 0.9 are often needed to prevail. By contrast, the correlation between LSAT scores and first-year grades (between 0.3 and 0.4) is "rather dismal" and may even be "largely artificial." Loewen, supra, at 173.

n137. These issues are slowly starting to be addressed. See Barry, supra note 135 (describing the development of new tests that reduce racial disparities by including multiple measures of intelligence, including creative intelligence and judgment).

Some institutions have in fact stopped using the SAT, mostly due to concerns about the test's class biases, but also because it fails to predict student performance and discourages talented applicants from applying. See Editorial, A Healthy SAT Debate, N.Y. Times, Mar. 12, 2001, at A14 (reporting that "several quality liberal-arts institutions - including Bowdoin, Bard, Connecticut College, Bates and, most recently, Mount Holyoke - no longer require SAT scores"). Race, however, tends to remain the flashpoint in the conversation about aptitude testing.

n138. See Brooks, supra note 58, at 29-31 (stating that, although the traditional WASP elite has been eliminated through meritocracy, a new, less service-minded "educated elite" has sprung up to take its place). Peter Sacks writes: We have settled on a system that defines merit in large part as the potential to achieve according to test results. It turns out that the lion's share of the "potential" in our society goes to those with well-to-do, highly educated parents. The aristocracy also used to perpetuate itself on the basis of birth and parentage. But the nation's elites now perpetuate their class privilege with rules of their own making that have persisted for several decades, rules legitimated and protected by a pseudo-scientific objectivity. Sacks, supra note 127, at 15.

n139. Carnevale & Rose, supra note 2, at 11.

n140. Brooks, supra note 58, at 29.

n141. See, e.g., Barry, supra note 135 ("Sixty years [after James Conant's admissions revolution], the SAT is an enormous business for the College Board and a focal point, even an obsession, in the lives of college-bound teenagers. For many college administrators, though, it symbolizes the opposite of Conant's egalitarian vision, favoring privileged white students who spend years preparing for it."); Jane Gross, Paying for a Disability Diagnosis To Gain Time on College Boards, N.Y. Times, Sept. 26, 2002, at A1.

n142. See, e.g., Malcolm Gladwell, Examined Life: What Stanley H. Kaplan Taught Us About the SAT, New Yorker, Dec. 17, 2001, at 86, 88 (characterizing the SAT as "eminently coachable"); Diane Sierpina, College Admissions, the Consultant's Way, N.Y. Times, Oct. 11, 1998, 14, at 1 ("In addition to the full-service consultants, parents can find specialists to help with financial aid applications, college essay writing and career planning.").

n143. See supra note 125. Once admitted, however, those with lower test scores often outperform their higher-scoring counterparts. See supra note 136; infra note 145.

n144. To the extent that quantitative measures of performance predict performance in college or law school (as opposed to post-graduation work), they do so in terms of "bands" rather than individual test scores. See Carnevale & Rose, supra note 2, at 12 (reporting scores in bands as predictors of graduation rates); Conversation with Anthony Carnevale, in Cambridge, Mass. (July 16, 2003); E-mail from Mahzarin Banajhi, Professor of Psychology, Harvard University, to Lani Guinier (July 9, 2003, 18:36:36 EST) (on file with the Harvard Law School Library) (noting that, although there may be a correlation between test results and behavior, the correlation is usually quite low, and it "cannot tell you about a particular person - the best you can say is that the higher somebody scores on a test the more likely they will to do x or y, and that more likely could be a teeny weeny more likely"). Furthermore, the predictiveness of those bands is modest at best. See supra note 136.

n145. Lempert et al., supra note 136. The authors compared the career paths of Michigan Law School graduates over a thirty-year period. They concluded that "hard" admissions criteria such as test scores and grades are no better predictors of success after law school than are "soft," more holistic selection criteria - whether success is measured by earned income, career satisfaction, or service contributions. See id. at 401, 468-69.

n146. See id. at 468-69; see also id. at 401 ("Among those Michigan graduates who enter the private practice of law, minority alumni tend to do more pro bono work, sit on the boards of more community organizations, and do more mentoring of younger attorneys than white alumni do.").

n147. AALS Brief, supra note 5, at 9 (citing the Michigan Law School study).

n148. See id. (concluding from the Michigan Law School study that "among the highly qualified applicants who are chosen for admission to selective law schools, numerical indicators fail to capture many relevant qualities and skills"). A panoply of reasons may explain this heightened civic-mindedness among black and Latino students. First, lower performance on high-stakes exams may reinforce stereotypes about the academic abilities of black and Latino students, driving them to compete in alternative domains, such as extracurricular activities or public service. See Claude Steele, Presentation at Harvard Law School Faculty Workshop (July 28, 2003). These pursuits may influence later professional and public-spirited choices, but may also deprive the academic community of the full benefit of minority students' presence in the classroom. Alternatively, students of color may be more civic-minded because race acts as a proxy for what Michael Dawson terms "linked fate," the sense that one's "own self-interests are linked to the interests of the race." Michael C. Dawson, Behind the Mule: Race and Class in African-American Politics 77 (1994); see also Guinier & Torres, supra note 28, at 74-82.

n149. See, e.g., Bowen & Bok, supra note 96, at 165 ("Test scores and college grades made very little difference [to civic participation rates]."); id. at 168 (noting that African Americans "were much more likely than their white classmates to have taken on leadership positions in virtually every type of civic endeavor"); see also Barry, supra note 135 ("There are people who are really good at traditional tests, who may get 800s and then when they get out of school, that's the end of the story for them. They don't get along with people. They don't persuade people to listen to them." (quoting Robert Sternberg, President of the American Psychological Association) (internal quotation marks omitted)).

n150. See Brooks, supra note 58, at 24-26.

n151. See Swain et al., supra note 125, at 173-74 (citing study by James M. Glaser).

n152. See Wolff & Wolff, supra note 71, at 3-4.

n153. See Liu, supra note 37, at 1046-50 (concluding, based on data provided by Bowen and Bok, that a white applicant's chance of admission to college decreases by less than two percent if race-conscious selection criteria are applied).

n154. See supra note 106.

n155. See infra Part IV (discussing the ways in which a point system is problematic in the context of contest mobility).

n156. According to the sociologist Ralph H. Turner, "under sponsored mobility elite recruits are chosen by the established elite or their agents, and elite status is given on the basis of some criterion of supposed merit and cannot be taken by any amount of effort or strategy." Turner, supra note 122, at 856. He writes: "Sponsored mobility ... rejects the pattern of the contest and favors a controlled selection process. In this process the elite or their agents, deemed to be best qualified to judge merit, choose individuals for elite status who have the appropriate qualities." Id. at 857. I am liberally adapting the term "sponsored mobility" and reinterpreting it without being tied to its sociological usage. I choose to borrow the term "sponsored mobility" rather than "discretionary mobility," although the two ideas overlap. The term "sponsored mobility" captures some of the elements of contest mobility and also seems to depict the results of decisionmaking as less "random" than "discretionary mobility" does. The words "sponsored" and "sponsorship" also carry with them the sense that decisionmakers have a "stake" in their choices - and that the process is, to a certain extent, characterized by decisionmakers "sponsoring" those students who look like or seem like themselves, even if they are unaware of this self-perpetuating bias. See infra note 162 and accompanying text. Additionally, the word "sponsorship" carries with it the values of meritocracy in a way that the word "discretionary" does not. Many admissions officers actually believe that they are giving "deserving" breakthrough applicants their "big chance to make it" in this contest. However, the term "discretionary mobility" may seem less pejorative and thus more appropriate as a way to describe the well-intentioned deployment of subjective criteria. I am indebted to Susan Sturm, Samuel Spital, and Sarah Boonin for helping me think through the implications of this choice.

n157. The contrast between contest mobility and sponsored mobility parallels the contrast between "statistical prediction" and "clinical prediction." Barbara D. Underwood, Law and the Crystal Ball: Predicting Behavior with Statistical Inference and Individualized Judgment, 88 Yale L.J. 1408, 1420 (1979). Statistical prediction, like contest mobility, "evaluates each applicant according to a predetermined rule for counting and weighting key characteristics [that] are specified in advance, [as] is the rule for combining them." Id. (emphasis added). Clinical prediction, like sponsored mobility, "relies on the subjective judgment of experienced decisionmakers, who evaluate each applicant on an individual basis in light of the experience accumulated by the decisionmaker and his profession." Id. (emphasis added). Underwood argues that the benefit of the clinical method is that it "protects most effectively against failure to consider unanticipated individual differences," while the benefit of the statistical method is that it "protects most effectively against the implicit use of illegal or otherwise unacceptable criteria for decision." Id. at 1432.

n158. Admissions officers may have originally used race as one of these soft variables to compensate for past discrimination, but the Court has since disallowed the pursuit of this purpose in the educational arena except to remedy specific instances of formal and intentional discrimination. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274 (1986) (plurality opinion) (requiring a showing of prior discrimination to use a limited racial classification as a remedy); cf. Milliken v. Bradley, 418 U.S. 717, 744-45 (1974) (holding that a school desegregation plan must be limited to districts with an actual history of racial discrimination). With that avenue of analysis foreclosed, a new justification soon emerged: the need to compensate for the known racial disparity in tests.

n159. See Reshma Memon Yaqub, Getting Inside the Ivy Gates, Worth, Sept. 2002, at 94, 98; see also Jane Gross, At Last, Colleges Answer, and New Questions Arise, N.Y. Times (New Eng. ed.), May 7, 2002, at A1 (describing "due diligence calls," confidential telephone conversations between private high school guidance counselors and admissions officials at unnamed Ivy League institutions to advocate for a limited number of applicants). For example, a younger colleague told me that a committee at his private high school had convened to decide whom they would sponsor for admission to a certain elite college. Once they picked him and five other students, all six were admitted to the college.

n160. David B. Wilkins, The Context of Race, Introduction to K. Anthony Appiah & Amy Gutmann, Color Conscious: The Political Morality of Race 3, 17 & n.3 (1996) (citing Neil Rudenstine, The President's Report 1993-1995 (1996)).

n161. Id. at 17 (arguing that "a university system that failed to educate a fair percentage of students from any significant social group in society ... would have defaulted on its primary duty to ensure the preservation of a stable polity").

n162. Sponsored mobility is vulnerable to the intergroup biases of elite decisionmakers. Research demonstrates that those in a group favor other group members in allocating rewards and evaluating performance, even if the groups are trivially assigned; that the strength of these biases is positively correlated with the salience of group distinctions; and that people are unaware of these biases. See Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative Action, 86 Cal. L. Rev. 1251, 1274, 1285 (1998) [hereinafter Krieger, Perestroika]. In fact, social science studies show that ingroup bias is so strong that people may prefer ingroup members even when the group identities are meaningless. See Michael Billig & Henri Tajfel, Social Categorization and Similarity in Intergroup Behaviour, 3 Eur. J. Soc. Psychol. 27, 27 (1973). Moreover, individual decisionmakers engage in stereotyping unknowingly and at every stage in the decisionmaking process. See Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1211 (1995) [hereinafter Krieger, Content] (describing stereotypes as a subset of the "vast array" of structures that comprise human cognition and concluding that discrimination therefore occurs not impulsively but as the result of an accumulation of subtle distortions in perceiving objective data).

n163. As long as sponsored mobility separates the pre-admission inputs from the post-graduation outputs and the ongoing considerations of institutional mission, it is easy to see why the preference for hard variables reigns. The hard variables are more efficient, easier to administer, and promote a sense of objective fairness. In addition, to the extent that sponsored mobility justifies its departure from the hard numbers using the language of diversity rather than merit, its use of soft variables helps set the stage for backlash and stigma, a problem to which I soon return in conjunction with a discussion of Justice Thomas's dissenting opinion in Grutter. See infra pp. 181-87. But cf. infra note 302.

n164. See supra pp. 144-46; cf. Jacques Steinberg, College Rating by U.S. News Drops Factor in Admissions, N.Y. Times, July 10, 2003, at A14 (discussing how U.S. News & World Report rankings prompt colleges to encourage binding early

admission applications, which increase colleges' yield ratios).

n165. See Daniel Golden, For Supreme Court, Affirmative Action Isn't Just Academic, Wall St. J., May 14, 2003, at A1 (describing the legacy status of five Supreme Court justices or their children); see also Jacques Steinberg, Of Sheepskins and Greenbacks, N.Y. Times, Feb. 13, 2003, at A24 (discussing the controversy over admissions preferences for the wealthy).

n166. Some students' decisions to "check the boxes" in order to gain admission under affirmative action is purely instrumental in that a small but growing number of these beneficiaries privately express disdain for the group with which they have temporarily identified, a distancing that they may believe is necessary to achieve as individuals. As one black admissions officer at an Ivy League institution told me, "blacks have supported affirmative action based on DuBois's concept of a talented tenth. Those who would gain access to elite institutions would then lead the race. Some of those being admitted pursuant to affirmative action express outright hostility for the race they are presumably to lead." Another admissions officer said that when students check multiple boxes, the admissions committee is instructed to "count the group we need currently." Still another admissions officer said that schools compete for a small group of high-scoring black students; as a result, the number of black students actually enrolled (as opposed to admitted) at some elite schools has actually gone down over the last ten years. At one Ivy League school, the number of African-American students, which reached a high of 7.8% in 1986, dropped 50% in the last part of the 1990s. In previous decades, admissions officers took greater risks on urban public school graduates; now they do not even recruit in many urban areas because "the guidance counselors are too difficult." Other admissions personnel said that, for at least one Ivy League institution, less than ten percent of students admitted as "Latinos" have been in the United States for more than ten years, and less than thirty percent of those admitted as "black" have four African-American grandparents who were born in the United States. The issue is not the admission of immigrants, who have much to contribute. The issue is their emergence as the dominant affirmative action prototype, compared to indigenous African Americans or Latinos. These recent developments at selective institutions yield to the fundamental contradiction of sponsored mobility: although sponsored mobility claims to adopt a more robust view of merit, its commitment to elite selection ultimately reaffirms the narrow, test-centric measures of contest mobility, which prefer, for example, those with highly educated parents. Interviews with Admissions Officers of Ivy League and Other Elite Colleges (Jan. 31, 2000; Apr. 21, 2000; Jan. 16, 2003; Jan. 30, 2003; Apr. 2, 2003; June 3, 2003; July 9, 2003; Sept. 5, 2003); Interview with Beverly Daniel Tatum, President of Spelman College, in Cambridge, Mass. (Aug. 30, 2003); cf. Charles R. Lawrence III, Two Views of the River: A Critique of the Liberal Defense of Affirmative Action, 101

Colum. L. Rev. 928, 962 (2001) ("I worry that I may be attracted to the liberal defense [of sponsored mobility] because I share in the privilege it seeks to preserve. I am the ideal diversity candidate because I am different, but not too different from my white colleagues. I am among those black and brown folk who are best suited to the task of integrating the academy when the university's primary goal is the education and legitimization of an intellectual and professional elite."); Lynette Clemetson, For Schooling, a Reverse Emigration to Africa, N.Y. Times, Sept. 4, 2003, at A1 (describing boarding school in Africa as a popular option for children of immigrants from certain West African countries, and noting that the parents remain in the United States and bring their children back to take the SAT and apply to American colleges).

n167. See Claude M. Steele, Thin Ice: "Stereotype Threat" and Black College Students, Atlantic Monthly, Aug. 1999, at 44, 46 (defining "stereotype threat" as "the threat of being viewed through the lens of a negative stereotype, or the fear of doing something that would inadvertently confirm that stereotype"); id. at 46-54 (finding that stereotype threat adversely affects black students' performance on standardized tests). At a Harvard Law School faculty workshop, Claude Steele stated that first-generation immigrants from the West Indies and Africa are less vulnerable to stereotype threat than are American-born blacks. Claude Steele, Presentation at Harvard Law School Faculty Workshop (July 28, 2003). According to Steele, black immigrants are often able to deflect anxiety about group identity because their accents and origin stories enable them to distance themselves from the "target" population. Id. However, this ability to distance themselves from the target group also potentially compromises their willingness to identify with the conditions affecting the vast majority of American-born blacks. See supra note 166. Nevertheless, as they come to understand the way race functions in the United States, many immigrants do make significant contributions to the larger community.

n168. See Mary C. Waters, Explaining the Comfort Factor: West Indian Immigrants Confront American Race Relations, in The Cultural Territories of Race: Black and White Boundaries 63 (Mich<?extend ascii 232>le Lamont ed., 1999); see also Immigration and Nationality Act Amendments of 1965, Pub. L. No. 89-236, 79 Stat. 911, 913 (codified as amended in scattered sections of 8 U.S.C.) (inviting people with special skills to enter the country); B<?extend ascii 233>rub<?extend ascii 233>, supra note 135 (noting the extraordinary influence of parental education on test scores, often raising test scores more than 200 points).

n169. My father was a voluntary immigrant from Jamaica; he applied and was

accepted to Harvard College in 1929. He later returned to Harvard in 1969 as the first Chair of the Afro-American Studies Department.

n170. There are many plausible reasons for the predominance of international students in university admissions that should be explored. Their admissions advantage may in fact be ancillary to the preoccupation with rankings: it may be that cash-hungry universities tend to admit more international students in order to benefit from their full tuition, since universities usually do not give financial aid to international students.

n171. See supra note 90; cf. Brief Amicus Curiae of the American Psychological Association in Support of Respondents at 4-11, Grutter (No. 02-241), Gratz (No. 02-516), (describing aversive racism and unconscious bias), available at http://www.umich.edu/urel/admissions/legal/gru amicus-ussc/um/APA-both.pdf; Mahzarin R. Banaji et al., The Social Unconscious, in Black-well Handbook of Social Psychology: Intraindividual Processes 134, 145 (Abraham Tesser & Norbert Schwarz eds., 2001); Mahzarin R. Banaji & Anthony G. Greenwald, Implicit Gender Stereotyping in Judgments of Fame, 68 J. Personality & Soc. Psychol. 181, 197 (1995); Anthony G. Greenwald et al., Measuring Individual Differences in Implicit Cognition: The Implicit Association Test, 74 J. Personality & Soc. Psychol. 1464, 1478 (1998); Anthony P. Carnevale, Comments at Harvard University Civil Rights Project Conference (July 16, 2003).

n172. Cf. Lemann, supra note 17, at 48-49 ("The abler graduates [who] would rise to high positions ... should not, however, be able to confer special advantages upon their children; America could use the powers of government to reorder the haves and have-nots every generation to give flux to our social order." (quoting James B. Conant, Wanted: American Radicals, Atlantic Monthly, May 1943, at 41, 44) (internal quotation marks omitted)).

n173. The transparency problem, which threatens both the honesty and the legitimacy of sponsored mobility, was recognized long ago by Barbara Underwood as a central problem with "clinical," as opposed to "statistical," methods of selection. Compare Underwood, supra note 157, at 1431 (warning that clinical decisionmakers "may resist efforts over time to make explicit their criteria for decision" and that "sometimes clinical judges refuse to surrender their discretionary power"), with id. at 1429-30 ("A statistical method makes explicit and visible the precise criteria by which applicants are selected or rejected ... . It also provides the

opportunity for public discourse about the desirability of the criteria that are used. Both features of a statistical system tend to foster public confidence in the legitimacy of the system." (footnote omitted)).

n174. Cf. Brooks, supra note 58, at 53 ("Marx warned that "the more a ruling class is able to assimilate the most prominent men [or women] of the dominated classes, the more stable and dangerous its rule.' ... The meritocratic ... class ... is flexible and amorphous enough to co-opt that which it does not already command." (first alteration in original) (quoting 3 Karl Marx, Capital 706 (Ernest Untermann trans., Frederick Engels ed., Charles H. Kerr & Co. 1909) (1894))).

n175. However, sponsored mobility may convey a sense of duty to its beneficiaries comparable to W.E.B. DuBois's notion of the "talented tenth." See W.E.B. DuBois, The Talented Tenth, in The Negro Problem 33, 45 (Ulysses Lee ed., 1969) (arguing that the advancement of a talented, black avant-garde would convince whites that blacks were worthy of their help, and that this "talented tenth" would work hard to advance the race because of their connection to the black community). For example, the Michigan study found that blacks and Latinos have higher rates of public service than the (so-called) meritocrats, see supra notes 145-148 and accompanying text, and Brooks concludes that the old WASP guard was more service-oriented than the current products of contest mobility, see supra notes 74, 138. It may well be the case that the higher rates of public service among blacks and Latinos is "a racial variant of noblesse oblige" - a surprisingly effective and highly advantageous byproduct of sponsored mobility. I thank Garrett Moritz for this observation and terminology. This "racial variant of noblesse oblige" may also turn the stigma argument on its head, to the extent stigma creates the "pangs of noblesse oblige." The desire to give back to the community may be the unexplored consequence of being a member of a hereditary elite or a beneficiary of affirmative action. In a sponsored mobility world, admission to higher education may serve as a visible vote of confidence in one's future potential that may inspire little choice but to respond (accountably) to and embrace the public-minded ideals of the institution. I thank Danielle Gray for this observation. But see supra note 166 (describing the reluctance of some beneficiaries of sponsored mobility to identify with the group in whose name or on whose behalf they are admitted).

n176. In other words, sponsored mobility purports to use race holistically to open up a richer view of merit. Yet some institutions appear to use race categorically, in the name of sponsored mobility, to reproduce "skinny merit." Cf. Rosen, supra note 87 (supporting affirmative action as a way to maintain "high standards" - a refrain that echoes throughout some of the dissenting opinions in Grutter).

n177. See DuBois, supra note 175.

n178. Lemann, supra note 17, at 77; see also supra p. 150. But cf. supra note 166 (noting that some beneficiaries of affirmative action do not identify with their racial groups or their larger communities).

n179. I adapt the term "structural mobility" from the sociological literature to refer to mobility caused by changes in structural conditions. See David L. Featherman et al., Assumptions of Mobility Research in the U.S.: The Case of Occupational Status, 4 Soc. Sci. Res. 329, 357 (1975); Hout, supra note 67, at 1359-60; cf. Michael E. Sobel, Structural Mobility, Circulation Mobility and the Analysis of Occupational Mobility: A Conceptual Mismatch, 48 Am. Soc. Rev. 721, 721 (1983) (describing a more technical usage of the term).

n180. The term "community" is defined here in the context of the institution's public role. A more precise definition is beyond the scope of this Comment. Community, for example, might refer to the relationship between the institution and those who subsidize it, whether alumni, government actors, charitable foundations, or taxpayers. Community might also include the educational community of teachers, parents, students, and policymakers - all of whose efforts affect the preparedness of citizens for higher education. See infra note 391.

n181. I use the term "structural mobility" to describe programs such as the GI Bill, which radically increased access to college among new groups of people. See infra notes 191-192.

n182. Cf. Hout, supra note 67, at 1392 (arguing that "increasing the proportion of workers with college degrees benefits society by making occupational opportunity independent of social origins for a large percentage of the work force"); infra note 192.

n183. See Glenn C. Loury, Admissions (and Denials) of Responsibility, N.Y. Times, Mar. 29, 2003, at A11 ("Taking race into account, in university admissions or in other aspects of life, does not require abandoning a commitment to individualism. One can hold that race is irrelevant to a person's moral worth - that people, not groups, are the bearers of rights - and still affirm that to deal effectively with individuals, we must consider the categories of thought [and experience] in which they understand themselves.").

n184. See Penda D. Hair, Louder Than Words: Lawyers, Communities and the Struggle for Justice 35 (2001) (noting that advocates of sponsored mobility recognize that "educating students from all segments of society" is critical in a democracy because it "incorporates the potential contributions a student will make to his or her classmates, to the educational environment and to society at large").

n185. See id. (describing a form of structural mobility in which admissions decisions are framed "in terms of ... a student's success in overcoming educational obstacles and the mission of public universities to produce leaders from all segments of the State's population"); see also Wilson, supra note 134, at 102; cf. Theda Skocpol, The Missing Middle: Working Families and the Future of American Social Policy 25-43 (2000) (discussing the numerous social programs throughout American history that rewarded people for their prior public service, or prepared them to contribute in the future).

n186. See Editorial, The Diversity Project in Texas, N.Y. Times, Nov. 27, 1999, at A14 ("University administrators who once thought themselves above the public education debate have realized that, to a great extent, the fates of the public schools and the universities are closely intertwined."); see also Lee, supra note 10, at A13 (attributing to Anthony Marx, President of Amherst College, a concern that "it has been close to a century since colleges and universities have provided the necessary leadership to address the failures of public education, a failure that tends to increase economic and social inequality"); supra note 180 (identifying the plausible uses of the term "community"); infra notes 332-333.

n187. More specifically, structural mobility develops its principles for allocating educational opportunity in conjunction with input from many relevant institutional communities. As a result, those principles are more transparent and legitimate in democratic and functional terms than if they were made exclusively by admissions officers or statisticians at testing services. Cf. Underwood, supra note 157, at 1420.

Barbara Underwood, in her examination of clinical and statistical methods of selection, does not contemplate a third, more structural, approach to selection. Instead, she sees a choice between two "competing" systems of prediction. Id. She writes: Statistical method and easily scored factors are most appealing if wisdom is thought to be concentrated in a few wise rulemakers ... while the everyday decisionmakers are thought to have inadequacies that require control by rule. Discretionary decisionmaking is most appealing if wisdom is thought to reside in the people who confront applicants and make decisions, rather than in the policymakers who make the rules. Id. at 1448. However, if one has reason to doubt the abilities of both sets of decisionmakers, then a more democratic, participatory, and structural methodology might be appropriate. See infra Part IV (discussing the value of racial literacy as a substantive and process value, and noting how diverse groups of decisionmakers help promote democratic legitimacy and the creative process of problem solving).

n188. The term "stakeholder" does not refer to shareholders or owners, but to members of the educational institution's internal and external constituencies - people who will be committed to the institution's long-term future. Stakeholders are people with significant emotional and political investments in the institution's success, including its ability to fulfill its public responsibilities.

n189. See infra Part IV (discussing the process values associated with a democratic deliberative project, including racial literacy, attention to social context, and opportunities for continuous information gathering and sharing). Structural mobility is committed to a broad definition of opportunity, which is most likely to be sustainable if implemented through a participatory process that involves the relevant stakeholders, including representatives of groups who have traditionally been excluded from the institution. When the relevant stakeholders participate in the decisionmaking process, they are more likely to be committed to the outcome and to believe it is fair, even if they disagree with it. While the process is participatory, inclusive, and deliberative, it is not open to all comers. It is democratic and deliberative; it is not an election in which everyone has a vote.

n190. Because even selective private institutions play a public role and enjoy public subsidies, they may also be expected to pay some attention to the standards

of structural mobility. See supra note 88. Because these standards challenge certain principles of selectivity and elitism within the premier public and private institutions of higher education, structural mobility can become even more controversial than sponsored mobility. See infra note 192. Although sponsored mobility uses explicitly race-conscious criteria, it allows elite decisionmakers to hand-pick students in a manner that is consistent with their interest in maintaining their rankings. Cf. Rosen, supra note 87 (arguing that if the Supreme Court were to force universities to adopt colorblind admissions standards, the universities would simply use "softer proxies for racial diversity" and might become less selective as a result).

n191. Servicemen's Readjustment Act of 1944, Pub. L. No. 78-346, 58 Stat. 284 (codified at 38 U.S.C. 3011).

n192. Two legislative acts, almost a century apart, dramatically restructured higher education in this country. The Morrill Act of 1862 gave federal land to the states to establish public colleges. 12 Stat. 503 (codified at 7 U.S.C. 301). The 1944 GI Bill "changed the face of America." Monica L. Haynes, GI Bill Brought College to Regular Joes, Pitt. Post-Gazette, May 29, 2003, at C2 (quoting Jamie O'Boyle, senior analyst for the Center for Cultural Studies and Analysis) (internal quotation mark omitted); see also Lemann, supra note 17, at 58-59 (describing the "rich menu" of benefits under the GI Bill, and characterizing the measure as a "spectacular success" in lifting millions into the middle class). Interestingly, at the time the GI Bill was under consideration, universities and colleges did not support it because "they thought bringing an influx of regular people would destroy the world of higher education as we know it." Haynes, supra (quoting O'Boyle) (internal quotation marks omitted); see also Lemann, supra note 17, at 58-59 (noting that James Conant, then-President of Harvard University, opposed the GI Bill because he thought it lacked a way for colleges to weed out underachievers). Contrary to these concerns, however, veterans who went to college under the GI Bill turned out to be "the best students ever." Interview with Jack Faris, Vice President, University of Washington, in Seattle, Wash. (Sept. 19, 2003) (quoting the conclusions of Jon Bridgman, Professor of History, University of Washington). By restructuring opportunity on a large scale, these programs benefited society as a whole, not just the individuals most directly affected. See Haynes, supra ("The GI Bill provided seed money for the emerging modern middle class - a numerically dominant working population with a host of advantages formerly reserved solely for the elite: general education, knowledge of other options and the freedom to pursue them, leisure time, discretionary income and geographic and class mobility." (quoting O'Boyle)); Richard J. Maloy, A Law That Changed America, Wash. Post, June 24, 1994, at A27 (reporting from Veterans Administration statistics that the GI Bill produced 456,000 engineers, 180,000 doctors and dentists,

360,000 schoolteachers, 156,000 scientists, and 107,000 lawyers); id. ("As they took their places in society, these college-trained veterans powered the remarkable postwar economic expansion of the United States, which continued unabated for more than a generation."); Tom Teepen, Educational Proposal Shows We're Finally Learning Our Lesson, Tampa Trib., Feb. 10, 1997, at 9 (noting that about half of all eligible veterans enrolled in college following World War II, producing "awesome" results and returning six times the cost of the program in enhanced lifetime earnings); see also Maloy, supra (describing economist Peter Drucker's conclusion that the enthusiastic response to the GI Bill marked a shift to a knowledge economy, benefiting individuals and the society as a whole).

n193. Act effective Sept. 1, 1997, ch. 155, 1997 Tex. Gen. Laws 1 (codified at Tex. Educ. Code Ann. 51.803 (Vernon Supp. 2003)).

n194. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).

n195. See infra note 200. Using race in this geographical way, those who developed the Plan began to notice that the university's merit-based admissions decisions actually preferred one group of taxpayers (those from suburban areas) over another group (those from rural and urban areas who did not have the resources to pay for test preparation or educational amenities). By contrast, Professor David Montejano analyzed UT Austin's feeder high schools and found that many of the beneficiaries of the TTP were black and Latino students from inner-city high schools in San Antonio, Houston, and Dallas, as well as whites from rural high schools in northern and eastern Texas. See David Montejano, Access to the University of Texas at Austin and the Ten Percent Plan: A Three-Year Assessment, http://www.utexas.edu/student/ research/reports/admissions/Montejanopaper.htm (last updated Jan. 13, 2003).

n196. See Marta Tienda et al., Closing the Gap?: Admissions & Enrollments at the Texas Public Flagships Before and After Affirmative Action 33 (Office of Population Research, Princeton Univ., Working Paper No. 2003-01, 2003) ("The rationale for this emphasis is grounded in a large body of literature showing that high school grades are one of the best predictors of long term success in college while standardized test scores predict freshman grades (and little else)."), available at http://www.opr.princeton.edu/papers/opr0301.pdf. The stated legislative purpose of the TTP was to give the best students of each high school in the state the opportunity to attend the state's flagship universities. In this way, the Plan was

designed to significantly broaden the ranks of the universities' feeder high schools, while still permitting the admission of some students under a system of sponsored mobility.

n197. Hair, supra note 184, at 25 (quoting Professor Gerald Torres) (internal quotation marks omitted).

n198. Gerald Torres, Grutter v. Bollinger/Gratz v. Bollinger: View from a Limestone Ledge, 103 Colum. L. Rev. (forthcoming 2003) (manuscript at 5, on file with the Harvard Law School Library). In 1996, almost half of the freshman class at UT Austin hailed from just 64 high schools, and approximately 900 Texas high schools sent no one to UT Austin. Montejano, supra note 195; see also Hair, supra note 184, at 24; William E. Forbath & Gerald Torres, Merit and Diversity After Hopwood, 10 Stan. L. & Pol'y Rev. 185, 187 (1999) (noting that in 1997, nearly half of the freshmen enrolled at UT hailed from 50 of the 1800 high schools in Texas); E-mail from David Montejano, Associate Professor of Ethnic Studies, University of California at Berkeley, to Lani Guinier (Sept. 8, 2003, 16:39:04 PST) (on file with the Harvard Law School Library) [hereinafter Montejano E-mail] ("These "new sender' high schools draw largely from two distinct clusters of minority inner-city schools and rural white schools. This suggests that [the TTP] is working as its legislative authors intended.").

n199. The Plan addressed "race in a fundamental way, while at the same time including whites and creating the potential for a cross-racial alliance." Hair, supra note 184, at 25.

n200. William E. Forbath & Gerald Torres, The "Talented Tenth" in Texas, The Nation, Dec. 15, 1997, at 20, 20 (quoting David Montejano) (internal quotation mark omitted); see also id. ("Hopwood forced champions of diversity to take account of broader inequities ... ."). For example, the bill's architect, Representative Irma Rangel, was able to gain the support of one of the state's most conservative lawmakers, the Chair of the Senate Higher Education Committee, who "believed the Plan's emphasis on hard work and grit would appeal to his mostly white constituents." Hair, supra note 184, at 28.

n201. Danielle Holley & Delia Spencer, The Texas Ten Percent Plan, 34 Harv.

C.R.-C.L. L. Rev. 245, 260 (1999); see also id. ("The Plan recognizes the continued racial segregation of Texas high schools and provides an equal opportunity for all students to enter the public universities, even those students from the largely minority schools that have been severely under-represented in the matriculating student populations at Texas state universities, and, especially, at the flagship institutions.").

n202. See Hair, supra note 184, at 25, 28 (noting that proponents of the TTP emphasized its appeal to potential white beneficiaries and argued that "Texas did not want to emulate California with its political hostility toward people of color and immigrants"); see also infra note 224.

n203. Hair, supra note 184, at 25; see also Holley & Spencer, supra note 201, at 262 (arguing that the TTP shifts the focus to inequalities in the state's primary and secondary school system); sources cited supra note 186 (describing the realization of university administrators that the fates of public schools and universities are linked); infra note 358.

n204. Carnevale & Rose, supra note 2, at 10-11. Class is not, however, a substitute for race. It is an interdependent variable that is often constructed and revealed by race. See infra note 366.

n205. Some rural communities in West Texas had not sent any high school graduates to UT Austin in the years preceding the Hopwood decision, although as taxpayers, they helped subsidize the campus. See Montejano, supra note 195. Under the TTP, the majority of the "new sender" white high schools are located in rural parts of Texas, including twenty-four schools in Northeast Texas, sixteen schools in East Texas, and a number of schools scattered throughout West Texas, the Panhandle, and Central Texas. Id.

n206. See Schmidt, supra note 27, at A32-33 (discussing race, class, and admissions rates in urban versus suburban Detroit). Schmidt found that "of the 5,719 in-state students admitted to Michigan last year, more than a fifth came from schools in seven affluent suburbs in Oakland County, north of Detroit," whereas "most of the high schools in the state's blue-collar white communities are lucky to have more than 5 per cent of their graduates admitted to the university." Id. at A34.

n207. See supra notes 166-171 and accompanying text.

n208. See Hair, supra note 184, at 32-33 ("In the fall of 1997[, t]he top two feeder schools were Plano High School (outside of Dallas), where students are 81 percent white and property value is $ 362,159 per pupil, and Westlake High School (Austin), which is 89 percent white and has a per-pupil property value of $ 429,026."); see also Holley & Spencer, supra note 201, at 267-70 (noting that the TTP's sponsoring legislators hoped that the Plan would broaden the student applicant pool because it targeted high schools highly segregated by race and class). Federal courts have found that schools in Houston, Dallas, and Austin remained intentionally segregated at least until 1967, 1970, and 1980 respectively. See Ross v. Houston Indep. Sch. Dist., 699 F.2d 218, 220-21 (5th Cir. 1983) (finding that racial segregation in schools continued until 1967); Tasby v. Woolery, 869 F. Supp. 454, 456 (N.D. Tex. 1994) (noting that in 1970, most schools in the Dallas Independent School District were still "one-race schools," in which at least ninety percent of the students were of the same race); Price v. Austin Indep. Sch. Dist., 729 F. Supp. 533, 535 (W.D. Tex. 1990) (noting that an integrative student plan was not generated until 1980). See generally Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (1993) (documenting the relationship between race, class, and geography).

n209. See, e.g., Bush v. Vera, 517 U.S. 952 (1996) (upholding a challenge by white voters to the creation of three majority-minority congressional districts in Texas); League of United Latin Am. Citizens v. Clements, 999 F.2d 831 (5th Cir. 1993) (en banc) (addressing a vote dilution challenge by black and Latino voters to the countywide election of Texas trial judges).

n210. The TTP worked to integrate the flagship colleges in roughly the same way that race-conscious districting works to integrate state legislatures: While not racially explicit in operation, the TTP exposed deep truths about race. Public school segregation results from continuing patterns of residential segregation as well as, in some places, white residents' withdrawal from public

education into private schools. As scholars have exhaustively documented, residential segregation is not the result of chance, but derives from a host of segregative governmental policies, as well as private racial discrimination. Racial segregation itself imposes disadvantage. Thus, as a measure to address the State's history of racial discrimination, it makes sense to use segregated-school geography to allocate a scarce resource, such as admission to flagship campuses. Hair, supra note 184, at 24. Ironically, many who defend the use of race-conscious election districts that build on the racial segregation of local communities to ensure that voters of color can elect candidates of their choice were offended by the use of a plan that worked in part because so many of the state's high schools were also racially homogeneous. See infra notes 223, 233.

n211. Torres, supra note 198 (manuscript at 7).

n212. Id. (manuscript at 16). According to Bruce Walker, Admissions Director at UT Austin, the school's aggressive, community-wide recruitment efforts resulted in part from the way the legislation "expanded" the school's definition of "achievement." Holley & Spencer, supra note 201, at 269-271.

n213. Gary M. Lavergne & Bruce Walker, Implementation and Results of the Texas Automatic Admissions Law (HB 588) at The University of Texas at Austin 10 (2002), available at http://www.utexas.edu/student/research/reports/admissions/HB588Report5.pdf.

n214. See Jim Yardley, The 10 Percent Solution, N.Y. Times, Apr. 14, 2002, 4A (Education Life), at 28 ("Overall, ... officials at both Texas A&M and the University of Texas say the demand for traditional remediation has not increased. They think the top 10 students are more focused, disciplined and accustomed to fighting to succeed, regardless of their high school.").

n215. Unlike the "One-Florida Plan," for example, the TTP was not unilaterally imposed by the governor without prior consultation. See Torres, supra note 198 (manuscript at 7). Nor was it quietly introduced without public debate as the SAT was in California in the 1950s. Cf. infra p. 189. The TTP was an indigenous experiment, not a one-size-fits-all test developed by a national bureaucracy.

Moreover, its efficacy has been carefully investigated by researchers outside of Texas. See, e.g., Brief of Social Scientists Glenn C. Loury et al. as Amici Curiae in Support of Respondents at 4, Grutter (No. 02-241), Gratz (No. 02-516); Tienda et al., supra note 196.

n216. For example, using grades alone disadvantages those who attend a more competitive high school or undertake a more difficult curriculum. See Patricia Kilday Hart, Texas Ponders Changes to 10% Law, Boston Globe, June 25, 2003, at A3 ("There is a fundamental problem with the top 10 percent law. There is no uniformity in the quality of education at the hundreds and hundreds of public and private high schools in [the] state." (quoting Texas State Senator Jeff Wentworth, who has pushed for legislation to change the TTP) (internal quotation marks omitted)).

n217. Relative performance in high school may itself be susceptible to racial and socioeconomic variations. Cf. Wilkins, supra note 160, at 18 (noting the loose fit between "color blind" credentials and the social purposes they are designed to serve); Wilkins & Gulati, supra note 8, at 1677-78 (comparing the "meritocracies" at law firms to a figure skating competition in which a candidate's looks, style, and social class, along with the judge's identity, influence outcomes).

n218. This concern, however, is not borne out by the data, which shows that TTP students earned better freshman-year grades than other students. See supra notes 213-214 and accompanying text. Moreover, critics of affirmative action and proponents of contest mobility define merit in a backward-looking fashion. A classic anti-affirmative action comment might begin: "Would you want a black doctor to operate on you who got into medical school because of affirmative action?" A typical response from an affirmative action proponent would be: "Who cares how he got in as long as he got out?"

n219. See The University of Texas at Austin, supra note 49 (noting that achieving excellence in public service is part of UT's mission).

n220. In this sense, the TTP may look forward to the contributions that these same students will make both in the classroom and in leadership positions throughout the state after they graduate. See Yardley, supra note 214 (describing

the fighting spirit of the TTP students); cf. supra notes 145-148 and accompanying text (discussing commitment to public service among Michigan Law School graduates of color); Wilkins & Gulati, supra note 8, at 1680 (recommending that law firms, when making promotions, deemphasize backward-looking assessments and instead "capture those practices that play an important role in preserving the future interests of the firm").

n221. See Torres supra note 198 (manuscript at 17-18) (describing the role of the flagship state universities as historical gateways to state leadership.); id. at 17 (quoting UT President Faulkner as stating that leadership should come "from all sectors of society" (internal quotation mark omitted)).

n222. See, e.g., Tienda et al., supra note 196, at 31 ("The top ten percent admission policy is not an alternative to affirmative action and by itself can only achieve minimal campus diversity, even in the presence of high levels of school segregation."). Percentage plans, especially in the absence of financial aid and recruitment, do not substitute for race-conscious efforts to improve the numbers and preparation of blacks and Latinos in the admissions pool. See id. at 28 (noting that the top decile of minority students after 1996 were more likely to enroll at UT Austin than at Texas A&M because of UT's Longhorn Scholars Program, which provided financial support to many low-income admittees); see also supra note 216 (describing the concern that high school rankings do not account for the varying degrees of difficulty of coursework across high schools).

n223. One frequent criticism is that the TTP failed to keep up with the changing demographics in Texas: although the TTP increased the number of admissions slots by 1000, this number failed to accommodate the much more dramatic increase in the number of eligible applicants. As a result, the school rejected more than half of the potentially admissible applicants, a disproportionate number of whom were black or Latino. Tienda et al., supra note 196, at 23-24. Yet the steady rise in the number of applicants but not admissions slots is a nationwide phenomenon that is not limited to states using percentage plans. Thus, neither sponsored nor structural mobility alone adequately addresses the issues of ongoing racial inequality. Yet one virtue of the TTP at UT Austin is that it equalizes the likelihood of enrollment (not just admission) of students from schools that traditionally have not sent graduates to the flagship campus, leading to greater geographical diversity, and increased representation from urban and rural public schools with different racial and socioeconomic compositions. Id. at 27-28; see also Montejano E-mail, supra note 198 (noting that the TTP brought "different kinds of high schools into the UT-Austin sending mix" - schools that were generally more racially diverse and much

poorer). Another argument against percentage plans is that they "reify and continue" racial segregation. See, e.g., Michelle Adams, Isn't It Ironic? The Central Paradox at the Heart of "Percentage Plans", 62 Ohio St. L.J. 1729, 1735 (2001) (arguing that "percentage plans reflect not only the state's recognition of racial segregation and associated systematic disadvantage, but such plans also reify and continue those ills by implementing a mechanism intended to achieve racial diversity upon a foundation of inequality"). But this argument is equally true of sponsored mobility, which does nothing to integrate elementary or high schools. Indeed, sponsored mobility may accelerate segregation in K-12 schools, not only by race but also by class and within racial groups as middle-class blacks flee the urban public schools. The fact that black and Latino students represented only seven percent of all applicants to both Texas A&M and UT Austin, see Tienda et al., supra note 196, at 24, suggests that the problem is the quality of K-12 education, which cannot be fixed by simply changing a university admissions policy. Even an admissions guarantee does not guarantee application. Id. at 26; cf. supra note 210.

n224. This aspect of the TTP was one of the Plan's selling points in Texas. The Educational Testing Service is "just the kind of centralized social bureaucracy that conservatives, in most contexts, love to hate." Forbath & Torres, supra note 200, at 21; see also id. ("Imagine a boy from [poor and predominantly white] Levelland. He puts his shoulder to the wheel and works hard, listens to his teachers and graduates first in his class. Why should some bureaucrats in Princeton, New Jersey, be able to tell him he's not good enough to go to the University of Texas?" (alteration in original) (internal quotation marks omitted)).

n225. The TTP "may erode ... elitism, in ways that many ... liberals and progressives ... could find discomforting. We have grown accustomed to the melding of exclusivity and inclusivity embodied by affirmative action and conventional ... college admissions standards, although this system often chooses middle-class minorities ... and relatively affluent white students as well." Id. at 20.

n226. See Holley & Spencer, supra note 201, at 264-66 (describing pre-Hopwood recruitment patterns as a "shotgun" approach that perpetuated the status quo, and noting that, of the seven UT counselors assigned to visit Texas high schools, only five traveled outside of Austin and none traveled to East or West Texas); id. at 272 (noting that, prior to 1997, counselors at Texas A&M targeted high schools for recruitment based on prior personal experience).

n227. See id. at 278 ("The Plan's most impressive effect to date is the focus it directs on the need to improve secondary education for minorities in Texas."). Dr. Phillip Uri Treisman, who runs a research center at UT Austin devoted to improving K-12 education, said that after the Plan was passed, he saw "a change in the attitudes of administrators, who now have a vested interest in the quality of the state's high schools." Jodi Wilgoren, New Law in Texas Preserves Racial Mix in State's Colleges, N.Y. Times, Nov. 24, 1999, at A1.

n228. New scholarships at UT Austin that cover tuition for students from underrepresented high schools have been key to recruitment and were developed in conjunction with policy researchers. See Gary R. Hanson & Lawrence Burt, Responding to Hopwood: Using Policy Analysis Research To Re-design Scholarship Criteria, http://www.utexas.edu/ student/research/reports/Hopwood/Hopwood.html (last visited Oct. 11, 2003).

n229. Lemann, supra note 17, at 59 (describing Conant's efforts to create a new elite). Indeed, one of the reasons Conant's dream of introducing to America a fluid society committed to public service never materialized may be that those in charge of operationalizing his dream were a tightly knit group of likeminded men who avoided public scrutiny or debate about their efforts. See supra pp. 153-54 (describing the limitations of homogeneous groups in creatively solving problems); infra p. 189 (describing the absence of public assent when contest mobility was first introduced); see also Torres, supra note 198 (manuscript at 7) (comparing the grassroots origins of the Texas Ten Percent Plan with the top-down origins of a similar plan in Florida, which was unilaterally imposed by the governor without prior consultation).

n230. Whereas the GI Bill rewarded veterans for their past service, the TTP was justified in part by its commitment to future service. Its supporters sought to provide educational opportunity to a more diverse and representative group of public-spirited and community-engaged individuals who would eventually become state leaders. Similarly, training leaders to serve society has been a consistent subtext of the mission statements of American public universities. See supra notes 48-55, 219-221, and accompanying text.

n231. I am indebted to Theda Skocpol's analysis of successful social programs,

from which I borrow with modifications. See Skocpol, supra note 185, at 24-43.

n232. See id. at 30-32. Skocpol identifies nineteenth-century public education, Civil War benefits, programs to help mothers and children in the 1910s and 1920s, the Social Security Act, and the GI Bill as among the country's finest social policy achievements because each of these systems of social support featured some version of the three elements above. Id. at 25-43. In many ways, the military itself is an example of two of the elements of structural mobility. See Charles C. Moskos & John Sibley Butler, All That We Can Be: Black Leadership and Racial Integration the Army Way 2 (1996) (describing the military as a success story of upward mobility and integration). Take, for example, the military's commitment to funding college education for members of the armed services; today's military still offers benefits in return for service and generates public revenues to support the program. Steven A. Holmes, For Job and Country: Is This Really an All-Volunteer Army?, N.Y. Times, Apr. 6, 2003, 4 (Week in Review), at 1 (reporting that the Department of Defense has expanded programs to help members of the military pay for college after active duty, making the issue "of who serves and who doesn't ... more and more a matter of who can afford college without help"). The third element of structural mobility - building a grassroots or organizational constituency - takes a less participatory form than the TTP, but it does move in the direction of constituency building and transparency. The military has become a prominent proponent of diversity; by linking diversity directly to its core mission, the military helps anchor diversity to democratic values. See Consolidated Brief of Lt. Gen. Julius W. Becton, Jr. et al. as Amici Curiae in Support of Respondents at 5, Grutter (No. 02-241), Gratz (No. 02-516) [hereinafter Military Brief] (stating that diversity in the officer corps and in the enlisted ranks is "essential to the military's ability to fulfill its principal mission to provide national security"). Indeed, the military has filled the gap that the federal government's retreat from higher education has left. Whereas the top twenty-five percent SES bracket dominates the student population at selective colleges and universities, the ratio is reversed in the military: since the Vietnam War, seventy-six percent of enlisted personnel come from working-class and poor families. See David M. Halbfinger & Steven A. Holmes, Military Mirrors a Working-Class America, N.Y. Times, Mar. 30, 2003, at A1 (describing a socioeconomic, racial, and geographic skew in the armed services as a whole). Unlike in colleges and universities, where they barely comprise a critical mass, blacks are actually overrepresented in the military. Id. (reporting that thirty-five percent of enlisted women are black and twenty-two percent of all enlisted personnel are black). But although the military, with its educational benefits, is an engine of upward mobility for blacks and Latinos, the more affluent members of our society no longer serve in the armed forces. Id. ("The officer corps today does not represent American nobility. These are not people who are going to be future congressmen or senators. The number of veterans in the Senate and the House is dropping every year. It shows you that our upper class no longer serves." (quoting Charles C. Moskos, Professor of Sociology at Northwestern University) (internal

quotation marks omitted)).

n233. The amici argued that these so-called race-neutral alternatives to affirmative action were actually race-conscious because they originated from a commitment to racial diversity. In addition, they argued, these plans forced institutions to choose between diversity and excellence, resulting in the admission of the "wrong" black students from underachieving high schools instead of the more academically prepared middle-class black students from magnet schools, suburban schools, or independent schools, where they received a good education but were not necessarily in the top ten percent of their class. Finally, the amici argued that the efficacy of percentage plans depended on the existence of racially segregated high schools - a proposition that some of them found deeply offensive. See Brief of Harvard University et al. as Amici Curiae Supporting Respondents at 23-25, Grutter (No. 02-241), Gratz (02-516); AALS Brief, supra note 5, at 16; Brief of the Leadership Conference on Civil Rights and the LCCR Education Fund as Amici Curiae in Support of Respondents at 25-27, Grutter (No. 02-241), Gratz (02-516). Of course, another reason the amici downplayed the notion of structural mobility was that the Bush administration and the Solicitor General's brief sought to use percentage plans to demonstrate that the Michigan plans were not narrowly tailored. See Brief for the United States as Amicus Curiae Supporting Petitioner at 13-17, Grutter (No. 02-241) [hereinafter U.S. Brief]. Some proponents of affirmative action worried, with good reason, that the Court might therefore use the existence of percentage plans as an excuse to avoid any explicit consideration of race. See Brief of the Harvard Black Law Students Association et al. as Amici Curiae Supporting Respondents at 20-22, 21 n.11, Grutter (No. 02-241) [hereinafter BLSA Brief]. Some might argue that the undergraduate plan at issue in Gratz was a weak form of structural mobility, in that it assigned numerical points to different categories of applicants, including those often overlooked, such as rural residents of the Upper Peninsula or students attending schools with high numbers of minority students. For reasons I explain later, see infra note 347, I do not consider the Michigan undergraduate plan, or the California and Florida percentage plans, exemplary of what I am calling structural mobility.

n234. See Grutter, 123 S. Ct. at 2339 ("The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer ... . Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university.").

n235. Justice O'Connor wrote that admissions policies "must remain flexible

enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application." Id. at 2343. Justice O'Connor cited as proof of Michigan's truly "individualized consideration" the fact that "the Law School seriously weighs many other diversity factors besides race." Id. at 2344. She approvingly noted the Law School's "highly individualized, holistic review of each applicant's file," emphasizing that "the Law School does not, however, limit in any way the broad range of qualities and experiences that may be considered valuable contributions to student body diversity." Id. at 2343-44.

n236. Justice O'Connor explicitly noted that the Court has "never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination." Id. at 2339. She then explained that "the Law School's admissions policy promotes cross-racial understanding, helps to break down racial stereotypes, and enables [students] to better understand persons of different races." Id. at 2339-40 (alteration in original) (internal quotation marks omitted). She further noted the "learning outcomes" associated with diversity, such as better preparing students for an increasingly diverse workforce and society; promoting classroom discussion that is "livelier, more spirited, and simply more enlightening"; and providing the "skills needed in today's increasingly global marketplace." Id. at 2340.

n237. Justice O'Connor linked participation in educational institutions with the goals of broader democratic participation: "Nowhere is the importance of such openness more acute than in the context of higher education. Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized." Id. at 2340-41 (citation omitted) (quoting U.S. Brief, supra note 233, at 13) (internal quotation marks omitted); see also id. at 2341 ("Law schools "cannot be effective in isolation from the individuals and institutions with which the law interacts.'" (quoting Sweatt v. Painter, 339 U.S. 629, 634 (1950))). Justice O'Connor emphasized not simply access to admissions, but broader access to "participate" in the institutions themselves. Id. ("Access to legal education (and thus the legal profession) must be inclusive ... so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed ... .").

n238. Justice O'Connor acknowledged a range of benefits of diversity. See supra note 236 (discussing the classroom benefits of diversity). Justice O'Connor also recognized the business interests in diversity. Grutter, 123 S. Ct. at 2340 ("American businesses have made clear that the skills needed in today's

increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints."). She quoted the military's claim that a "highly qualified, racially diverse officer corps ... is essential to the military's ability to fulfill its principal mission to provide national security." Id. (omission in original) (quoting Military Brief, supra note 232, at 27 (internal quotation marks omitted). Finally, she wrote that "universities, and in particular, law schools, represent the training ground for a large number of our Nation's leaders." Id. at 2341.

n239. Id. Justice O'Connor linked diversity to the institutional mission of higher education: "Our view [is] that attaining a diverse student body is at the heart of the Law School's proper institutional mission ... ." Id. at 2339. She then linked the mission of educational institutions to the promotion of democracy. See infra notes 242-243.

n240. Justice O'Connor wrote: The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer... . Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions ... . We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. Grutter, 123 S. Ct. at 2339. In his dissent, Justice Kennedy also mentioned that "Justice Powell's approval of the use of race in university admissions [in Bakke] reflected a tradition, grounded in the First Amendment, of acknowledging a university's conception of its educational mission." Id. at 2370 (Kennedy, J., dissenting) (citing Regents of University of California v. Bakke, 438 U.S. 265, 312-14 (1978)).

n241. See supra note 238.

n242. Grutter, 123 S. Ct. at 2341 ("In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be

visibly open to talented and qualified individuals of every race and ethnicity."); id. ("All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.").

n243. Id. at 2340 ("We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to "sustaining our political and cultural heritage' ... . This Court has long recognized that "education ... is the very foundation of good citizenship.'" (second omission in original) (citations omitted) (quoting Plyler v. Doe, 457 U.S. 202, 221 (1982); and Brown v. Board of Education, 347 U.S. 483, 493 (1954))); see also supra notes 56, 237.

n244. See Grutter, 123 S. Ct. at 2340 ("Numerous studies show that student body diversity promotes learning outcomes ... ."); see also supra note 238. Justice O'Connor's recognition of the pedagogical value of diversity is consistent with Cass Sunstein's recognition that diversity is critical to learning because "by a large margin, most of what we think comes not from firsthand knowledge but from what we learn from what others do and think." Cass R. Sunstein, Why Societies Need Dissent 9 (2003).

n245. Grutter, 123 S. Ct. at 2341 ("Diminishing the force of such stereotypes is both a crucial part of the Law School's mission, and one that it cannot accomplish with only token numbers of minority students.").

n246. See supra notes 237, 239, 242-243.

n247. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311-312 (1978) (opinion of Powell, J.).

n248. Grutter, 123 S. Ct. at 2337. Justice O'Connor's discussion of legitimacy, access, and democracy suggests that affirmative action serves a compelling governmental interest not simply because of its "diversity" benefits, but also - and perhaps mainly - because democracy cannot tolerate institutions with populations that reflect historical injustices. Justice Thomas derided this conception as mere

"aesthetics," see infra note 275 and accompanying text, but in many ways Justice O'Connor's emphasis on democratic legitimacy seems quite at odds with the traditional diversity rationale; her opinion in Grutter seems to take a step back from both Justice Powell's view in Bakke and her own views in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), toward the original justifications for affirmative action. I thank Danielle Gray for suggesting this reading of Justice O'Connor's opinion: the real compelling interest is in (re)allocating scarce educational opportunity in a way that will advance the call of fully integrating society. For a discussion of the distinction between benign and odious uses of race, which in this reading Justice O'Connor implicitly accepted, see infra notes 260-261 and accompanying text.

n249. Here it is useful to read Justice O'Connor's opinion in conjunction with Chief Justice Rehnquist's opinion in Gratz. Chief Justice Rehnquist quoted Justice Powell's opinion in Bakke to illustrate the importance of not viewing race categorically, citing the admissions process at Harvard College: The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower but who had demonstrated energy and leadership as well as an apparently abiding interest in black power. If a good number of black students much like A but few like B had already been admitted, the Committee might prefer B; and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qualities or experience not dependent upon race but sometimes associated with it. Gratz, 123 S. Ct. at 2428-29 (quoting Bakke, 438 U.S. at 324 (opinion of Powell, J.)) (internal quotation marks omitted).

n250. Justice O'Connor wrote: Unlike the law school admissions policy the Court upholds today ... the procedures employed by the University of Michigan's Office of Undergraduate Admissions do not provide for a meaningful individualized review of applicants... . The Office of Undergraduate Admissions relies on the selection index to assign every

underrepresented minority applicant the same, automatic 20-point bonus without consideration of the particular background, experiences, or qualities of each individual applicant. This policy stands in sharp contrast to the law school's admissions plan, which enables admissions officers to make nuanced judgments. Id. at 2431-32 (O'Connor, J., concurring).

n251. Justice Breyer joined Justice O'Connor's concurrence in Gratz, although he was in the Grutter majority.

n252. Justice O'Connor differentiated between the "good" and "bad" use of numbers. In Gratz, she criticized the undergraduate program's use of numbers attached to race as "nonindividualized" and "mechanical." Gratz, 123 S. Ct. at 2433 (O'Connor, J., concurring). In Grutter, she likewise wrote: "To be narrowly tailored, a race-conscious admissions program cannot use a quota system - it cannot "insulate each category of applicants with certain desired qualifications from competition with all other applicants.'" Grutter, 123 S. Ct. at 2342 (alteration in original) (quoting Bakke, 438 U.S. at 314 (opinion of Powell, J.)). While Justice O'Connor dislikes quotas, however, she accepts numbers when used in moderation: "There is of course "some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.' "Some attention to numbers,' without more, does not transform a flexible admissions system into a rigid quota." Id. at 2343 (second alteration in original) (citations omitted) (quoting Bakke, 438 U.S. at 323 (opinion of Powell, J.)). Justice O'Connor's discussion of the Michigan Law School's admissions process shows that the process conformed with the standard set forth in Bakke: Dennis Shields, Director of Admissions when petitioner applied to the Law School, testified that he did not direct his staff to admit a particular percentage or number of minority students, but rather to consider an applicant's race along with all other factors. Shields testified that at the height of the admissions season, he would frequently consult the so-called "daily reports' that kept track of the racial and ethnic composition of the class (along with other information such as residency status and gender). This was done, Shields testified, to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body. Id. at 2333 (citations omitted). Justice O'Connor rejected the suggestion by Chief Justice Rehnquist and Justice Kennedy that the Law School's use of numbers

amounted to racial balancing or the use of quotas. See id. at 2343; but cf. infra note 271 (describing Justice Thomas's criticism of the Court's deference to the Law School's "adherence to measures it knows produces racially skewed results").

n253. See Grutter, 123 S. Ct. at 2344 (describing other factors the Law School used to supplement LSAT scores); see also supra notes 135-136 (discussing the relationship between standardized test scores and group status). Justice O'Connor's distinction between "good" and "bad" uses of numbers suggests that numbers that are not directly associated with race - such as the top ten percent in a graduating high school class - are not inherently problematic in her view, although they are not relevant to graduate school admissions. See supra pp. 162-70 (discussing the Texas Ten Percent Plan). On the one hand, Justice O'Connor endorsed the use of numbers to rank applicants based on "merit." She suggested that numbers tell us something about merit when she warned in Grutter that a move away from testing "would require a dramatic sacrifice of ... the academic quality of all admitted students." Grutter, 123 S. Ct. at 2345. Similarly, she emphasized that the Court's requirement of an individualized assessment does not "require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups." Id. at 2344. On the other hand, Justice O'Connor suggested that these numbers may be deficient. She approvingly noted that the Law School recognized the limit to the values of testing: "Even the highest possible score does not guarantee admission to the Law School. Nor does a low score automatically disqualify an applicant. Rather, the policy requires admissions officials to look beyond grades and test scores ... ." Id. at 2332 (citations omitted).

n254. Gratz, 123 S. Ct. at 2431-32 (O'Connor, J., concurring). Justice O'Connor's concern with automatic or mechanical considerations of race is evident in both Grutter and Gratz. See Grutter, 123 S. Ct. at 2330 ("There is no policy [at the Law School], either de jure or de facto, of automatic acceptance or rejection based on any single "soft' variable."); id. at 2342 ("As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, nonmechanical way."); id. at 2343 (noting that, unlike the undergraduate admissions program considered in Gratz, the law school admissions program did not use any "mechanical, predetermined diversity "bonuses' based on race or ethnicity"); Gratz, 123 S. Ct. at 2431 (O'Connor, J., concurring) (noting that "the Office of Undergraduate Admissions relies on the selection index to assign every underrepresented minority applicant the same, automatic 20-point bonus without consideration of the particular background, experiences, or qualities of each individual applicant"); id. at 2432 (noting that "the selection index, by setting up

automatic, predetermined point allocations for the soft variables, ensures that the diversity contributions of applicants cannot be individually assessed"); id. at 2431 (arguing that "this mechanized selection index score, by and large, automatically determines the admissions decision for each applicant").

n255. Justice O'Connor would presumably be sympathetic, for example, to Justice Powell's hypothetical example in Bakke, in which an institution might choose a poor black student over a more accomplished middle-class black student to achieve class and racial diversity. See supra notes 248-249.

n256. The fact that educational institutions have multiple goals gives rise to the criticism, offered by some, that the Texas Ten Percent Plan lacks the flexibility and nuance to serve all of these various goals. See, e.g., Grutter, 123 S. Ct. at 2345 ("The United States advocates "percentage plans,' recently adopted by public undergraduate institutions in Texas, Florida, and California... . The United States does not, however, explain how such plans could work for graduate and professional schools. Moreover, even assuming such plans are race-neutral, they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university."); see also Sullivan, supra note 16, at 1052-54 (arguing that such percentage plans presumably pass constitutional muster, even though they function only as "crude proxies" for race-blind admissions considerations). Yet Justice O'Connor presumably would defer to the educational institution's choice to weigh these goals, as long as race was not used automatically to predetermine outcomes. See infra notes 263, 327.

n257. I infer this understanding of good faith from Justice O'Connor's discussion of the legitimacy of the diversity rationale, see Grutter, 123 S. Ct. at 2340-41, and from her discussion of the Michigan Law School's desire to discontinue race-based admissions, see id. at 2346; see also id. at 2339 (discussing the Court's deference to the Law School's educational judgment).

n258. These three rules for operationalizing the use of race are fairly general. First, institutions should avoid using race as a mechanistic or rigid "bonus" factor. Id. at 2342. Second, institutions can consider race holistically as a plus factor to achieve a critical mass of black and Latino students and to otherwise realize the broader value of diversity. Id. at 2342-43. Third, institutions should be given leeway to navigate the cross-currents between the first two rules as long as they

engage in a continuous process of review and reconsideration, demonstrating a willingness, for example, to consider race-neutral alternatives. Id. at 2344-46.

n259. Justice Kennedy called this deference "a review that is nothing short of perfunctory." Id. at 2371 (Kennedy, J., dissenting). Justice Thomas criticized the Court's "unprecedented deference" to the Law School. Id. at 2356 (Thomas, J., concurring in part and dissenting in part). In Justice Thomas's view, reliance on elite decisionmakers is misguided. He criticized the "meddling of university administrators," id. at 2350, and noted that "the status quo being defended is that of the elite establishment - here the Law School." Id. at 2359.

n260. Justice Ginsburg read the Equal Protection Clause as allowing benign categorizations: "In implementing this equality instruction, as I see it, government decisionmakers may properly distinguish between policies of exclusion and inclusion." Gratz, 123 S. Ct. at 2444 (Ginsburg, J., dissenting). She then contrasted racial classifications that are used "for the purpose of maintaining racial inequality," which are properly "suspect," with those used "for the purpose of achieving equality." Id. (quoting Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 920, 931-32 (2d Cir. 1968)) (internal quotation marks omitted). Further, she pointed to "contemporary human rights documents [that properly] draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality." Id. at 2445; see also supra note 248 (describing a plausible reading of Justice O'Connor's opinion that is consistent with the distinctions Justice Ginsberg made).

n261. See Sullivan, supra note 16, at 1048-49 ("Strict scrutiny of facially race-neutral laws is appropriate only when impermissible racial animus or supremacism can be distilled from behind their neutral masks - for example, as an inference from grossly disproportionate racial effects. No such supremacist purpose is present ... when racial integration and diversity are the motivating principles behind a law.").

n262. Sturm, supra note 46, at 325 (internal quotation marks omitted); see also id. ("This form of reflective practice, particularly if informed by data revealing patterns of conduct, would require practitioners to evaluate their practice in relation to articulated goals and criteria, and to revise their strategies in light of what they learn.").

n263. In applying the narrow tailoring requirement in Grutter, Justice O'Connor

called for "continuing oversight to assure that [admissions policies] work the least harm possible." Grutter, 123 S. Ct. at 2345 (quoting Regents of University of California v. Bakke, 438 U.S. 265, 308 (1978) (opinion of Powell, J.)). She further instructed that the Court's twenty-five-year limit on affirmative action was intended to encourage "periodic reviews to determine whether racial preferences are still necessary," as well as "experimenting with a wide variety of alternative approaches" so that universities may learn from the practices of other institutions and "draw on the most promising aspects of these race-neutral alternatives as they develop." Id. at 2346. As Professor Pamela Karlan recently suggested, the Court's reasoning has conclusively settled the issue whether diversity is a compelling interest: "The action will be in whether the choices are narrowly tailored." Pamela Karlan, Comments at the Harvard University Civil Rights Project (July 16, 2003).

n264. This conception reinforces Justice Thomas's "interest-convergence" argument (borrowed from Professor Derrick Bell). See infra note 274 and accompanying text.

n265. Grutter, 123 S. Ct. at 2346-47. Justices Ginsburg and Breyer skeptically regarded this twenty-five-year expiration date as an expression of "hope" that race-based considerations would no longer be necessary in a quarter of a century. See id. at 2348 (Ginsburg, J., concurring). In his dissent, Chief Justice Rehnquist criticized the proposed twenty-five-year period as merely a "possible ... limitation" that served to undermine strict scrutiny. Id. at 2369-70 (Rehnquist, C.J., dissenting) ("These discussions of a time limit are the vaguest of assurances. In truth, they permit the Law School's use of racial preferences on a seemingly permanent basis. Thus, an important component of strict scrutiny - that a program be limited in time - is casually subverted.").

n266. See infra note 272. Only a hands-off approach, each black man or woman for himself or herself, would be constitutional in his view. Justice Thomas scorns white munificence in favor of the determination of John Henry, the legendary black steel-driving man who died trying to beat the machine. In his Grutter dissent, Justice Thomas quoted Frederick Douglass: "The American people have always been anxious to know what they shall do with us ... . I have had but one answer from the beginning. Do nothing with us!" Grutter, 123 S. Ct. at 2350 (Thomas, J., concurring in part and dissenting in part) (omission in original) (quoting Frederick

Douglass, What a Black Man Wants, Address Delivered in Boston, Mass. (Jan. 26, 1865), in The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds., 1991)). "Like Douglass," Justice Thomas continued, "I believe blacks can achieve in every avenue of American life without the meddling of university administrators." Id. Justice Thomas went on to challenge the majority's acceptance of the correlation between diversity and educational benefits, citing the educational benefits of racial homogeneity among black students attending historically black colleges (HBCs). Id. at 2358. Suggesting his approval of HBCs, Justice Thomas then went on to reason that the majority's deference to institutional decisions regarding diversity in turn justifies "an HBC's rejection of white applicants in order to maintain racial homogeneity." Id. Justice Thomas warned that the majority's reasoning "is the seed of a new constitutional justification for a concept I thought long and rightly rejected - racial segregation." Id.; see also infra notes 272-273.

n267. Grutter, 123 S. Ct. at 2350.

n268. Id. at 2362 n.11. Justice Thomas complained that "all the Law School cares about is its own image among know-it-all elites, not solving real problems like the crisis of black male underperformance." Id.

n269. Id. at 2362. Justice Thomas wrote: "Diversity," for all of its devotees, is more a fashionable catchphrase than it is a useful term, especially when something as serious as racial discrimination is at issue. Because the Equal Protection Clause renders the color of one's skin constitutionally irrelevant to the Law School's mission, I refer to the Law School's interest as an "aesthetic." That is, the Law School wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them. I also use the term "aesthetic" because I believe it underlines the ineffectiveness of racially discriminatory admissions in actually helping those who are truly underprivileged. It must be remembered that the Law School's racial discrimination does nothing for those too poor or uneducated to participate in elite higher education and therefore presents only an illusory solution to the challenges facing our Nation. Id. at 2353 n.3 (alteration in original) (citation omitted). Justice Thomas called this system a "cruel farce of racial discrimination" and wrote that "the aestheticists will never address the real problems facing "underrepresented minorities.'" Id. at 2362.

n270. Under Justice O'Connor's view, democratic legitimacy is obtained through broad deference to the benevolent exercise of discretion by elites, whose discretion is reliable if they actively engage in the process of reflection, monitoring, and retrofitting. See supra note 263 (describing the role of self-reflective and continuous investigation); see also Sturm, supra note 46, at 325 ("This process induces self-consciousness and systematic inquiry, which in turn promotes responsible decision-making that can be (and has been) justified in relation to specified goals. This process also discourages, or at least makes visible, abuses of power.").

n271. Contest mobility is only a rough proxy for Justice Thomas's view, which also contains elements of structural mobility: for example, he does not assume that ranking and sorting individuals based on competitive performance is always a true indicator of merit. He noted that there is nothing inherently honorable about selective admissions. "Since its inception," he wrote, "selective admissions has been the vehicle for racial, ethnic, and religious tinkering and experimentation by university administrators." Grutter, 123 S. Ct. at 2360 (Thomas, J., concurring in part and dissenting in part). Moreover, he added, "the use of test scores ... to "predict' academic performance is a poor substitute for a system that gives every applicant a chance to prove he can succeed in the study of law." Id. at 2359. The current admissions process, he wrote, is "poisoned by numerous exceptions to "merit,'" including legacy preferences. Id. Justice Thomas continued: No modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admissions Test (LSAT). Nevertheless, law schools continue to use the test and then attempt to "correct" for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body. The Law School's continued adherence to measures it knows produce racially skewed results is not entitled to deference by this Court. The Law School itself admits that the test is imperfect ... . And the Law School's amici cannot seem to agree on the fundamental question whether the test itself is useful. Id. at 2360-61 (citations omitted). Justice Thomas then went on to compare the amicus brief of the Law School Admission Council, which argued that "LSAT scores ... are an effective predictor of students' performance in law school," id. at 2361 (quoting Brief of the Law School Admission Council as Amicus Curiae in Support of Respondents at 12, Grutter (No. 02-241)) (omission in original) (internal quotation marks omitted), with the brief of the Harvard Black Law

Students Association, which stated that the LSAT's usefulness as a measure of "objective merit ... is certainly questionable." Id. (quoting BLSA Brief, supra note 233, at 27) (omission in original) (internal quotation mark omitted). Justice Thomas's skepticism about admissions testing as a legitimate or fair selection device does not extend, however, to all forms of evaluation based on performance. Compare id. at 2360-61 (criticizing the LSAT as producing "racially skewed results"), with id. at 2360 (implying that other achievement-based admissions programs, such as course-completion or percentage programs, would be acceptable). <PARA'0 pt'0 pt'0 pt'>Indeed, Justice Thomas's opinion vacillates between contest and structural mobility. Despite his criticism of measures of so-called merit, Justice Thomas did not explicitly call for the reform of admissions testing, which lies at the heart of contest mobility. Instead, he criticized sponsored mobility and the incentive structure created by affirmative action. In other words, rather than opting for a reconceptualization of so-called merit, Justice Thomas's opinion simply asked us to lean harder on what he admits are weak measures of "merit." He wrote: As admission prospects approach certainty, there is no incentive for the black applicant to continue to prepare for the LSAT ... . The possibility remains that this racial discrimination will help fulfill the bigot's prophecy about black underperformance - just as it confirms the conspiracy theorist's belief that "institutional racism" is at fault for every racial disparity in our society. Id. at 2364-65.

n272. He supported his position with personal observation and presumably personal experience. See id. at 2362 ("When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma - because either racial discrimination did play a role, in which case the person may be deemed "otherwise unqualified,' or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination."). Justice Thomas's earlier stances were less hostile to diversity goals. For example, when he was Assistant Secretary of Education, he criticized a Texas plan as "insufficient to meet Texas' commitment to enroll [graduate students of color] in proportion to the representation among graduates of the state's undergraduate institutions." Holley & Spencer, supra note 201, at 247 (quoting Hopwood v. Texas, 861 F. Supp. 551, 556 (W.D. Tex. 1994)) (internal quotation marks omitted).

n273. See Grutter, 123 S. Ct. at 2361 (Thomas, J., concurring in part and dissenting in part) ("What lies beneath the Court's decision today are the benighted notions that one can tell when racial discrimination benefits (rather than hurts) minority groups, and that racial discrimination is necessary to remedy general social ills." (citations omitted)).

n274. Justice Thomas's argument, which reconfigures Derrick Bell's interest-convergence thesis, seems to be that gains by blacks usually depend on the perception by whites that the advancement of people of color is in their own interest; diversity for diversity's sake, the argument goes, may be in the interests of the cognoscenti, but it is not necessarily in the interests of blacks generally. See id. at 2358 (discussing the harmful impact of affirmative action on black students); see also Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518, 524-25 (1980) (arguing that the Court ordered the desegregation of schools in Brown v. Board of Education, 347 U.S. 483 (1954), to confer democratic legitimacy on America rather than to help educate black children).

n275. See Grutter, 123 S. Ct. at 2362 (Thomas, J., concurring in part and dissenting in part) ("The Law School seeks only a fa<?extend ascii 231>ade - it is sufficient that the class look right, even if it does not perform right."); supra note 269.

n276. Justice Thomas's space for a more functional approach is revealed by his statement that "those of us who view higher education's purpose as imparting knowledge and skills to students, rather than a communal, rubber-stamp, credentialing process" will look for students who "will succeed in the study of law" rather than merely those who "look[] right." Grutter, 123 S. Ct. at 2361-62 (Thomas, J., concurring in part and dissenting in part). Furthermore, Justice Thomas appeared to invite some experimentation when he wrote: "In any event, there is nothing ancient, honorable, or constitutionally protected about "selective' admissions. The University of Michigan should be well aware that alternative methods have historically been used for the admission of students." Id. at 2360. He went on to mention the Texas Ten Percent Plan as one modern example of such an "alternative method." Id. In his harsh criticism of the "cruel farce" of affirmative action, perpetuated by "aestheticists" who "experiment[] on other people's children," Justice Thomas seemed most concerned that the elites who construct these admissions policies do not act in the interests of the black and Latino students themselves, who he believes do not benefit from these admissions policies at all. See id. at 2362. Thus, implicit in Justice Thomas's critique of the Court's deference

to elites is a call for greater accountability in the distribution of opportunity broadly construed. See supra note 271 (explaining how Justice Thomas's opinion is consistent with structural mobility).

n277. For example, Linda Krieger writes: Very little information shapes a social perceiver's impression of a target person. Rather, it is the perceiver's interpretation of the raw information that influences social judgment... . Given the realities of social perception, we can anticipate that similarly situated people will be treated differently based on their group membership, because decision makers, influenced by these subtle forms of intergroup bias, will not perceive them as similarly situated at all. Nothing in the colorblindness approach to nondiscrimination provides social decision makers with the tools required to recognize or to correct for biases of this sort. Krieger, Perestroika, supra note 162, at 1284-85; see also Underwood, supra note 157, at 1431-32 (suggesting that a central weakness of the "clinical" selection processes in which experienced decisionmakers exercise discretion and make individualized assessments is that decisionmakers may "refuse to surrender their discretionary power" over time and utilize "illegal or otherwise unacceptable criteria" in decisionmaking).

n278. See Krieger, Perestroika, supra note 162, at 1284 ("It is reasonable to believe that people will interpret ambiguous behaviors of persons with whom they identify more positively than they will interpret similar behaviors of persons from whom they feel socially distant."). If decisionmakers tend to favor the familiar, then it is likely that elite decisionmakers will unknowingly engage in a largely self-replicating selection process. Cf. id. at 1285 ("According to spontaneous trait inference theory, only the application of deliberate, controlled, corrective processes can prevent stereotypes and subtle ingroup priming valances from biasing interpersonal judgment.").

n279. Cf. Sunstein, supra note 244, at 106-09 (arguing that dissenting views are critical to effective decisionmaking); Banaji et al., supra note 171, at 141 ("It is unsettling, at least in societies that consciously affirm that judgments ought to be based on the "content of one's character,' to discover the extent to which judgments of individuals may reflect beliefs about their social group."); Krieger, Content, supra note 162, at 1188 (arguing that cognitive bias is not the same as intentional

bias or what we think of as legally cognizable "racism").

n280. See Grutter, 123 S. Ct. at 2362 n.11 (Thomas, J., concurring in part and dissenting in part). Justice Souter also expressed concern with the issue of transparency. In his dissent in Gratz, he noted that transparency was a virtue of the college's point system: "Without knowing more about how the Admissions Review Committee [at the college] actually functions, it seems especially unfair to treat the candor of the admissions plan as an Achilles' heel." Gratz, 123 S. Ct. at 2442 (Souter, J., dissenting). Justice Souter then went on to "contrast ... the college's forthrightness in saying just what plus factor it gives" with the percentage plans that suffer from "deliberate obfuscation." Id. He wrote: "The "percentage plans' are just as race conscious as the point scheme (and fairly so), but they get their racially diverse results without saying directly what they are doing or why they are doing it." Id. <PARA'0 pt'0 pt'0 pt'>Justice Ginsburg, in her dissent in Gratz, also suggested that transparency ought to be encouraged. After reminding the Court of the lingering effects of racism faced by black and Latino students, Justice Ginsburg wrote: One can reasonably anticipate ... that colleges and universities will seek to maintain their minority enrollment ... whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage... . If honesty is the best policy, surely Michigan's accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises. Id. at 2446 (Ginsburg, J., dissenting).

n281. See Grutter, 123 S. Ct. at 2359-61 (Thomas, J., concurring in part and dissenting in part) (noting that exceptions "give the lie to protestations that merit admissions are in fact the order of the day," and connecting race to some of these exceptions).

n282. Justice Thomas wrote: The majority of blacks are admitted to the Law School because of discrimination

[in the form of affirmative action], and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the "beneficiaries" of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement... . Is this what the Court means by "visibly open"? Id. at 2362.

n283. Beth Roy, for example, notes that whites who feel that they cannot pass on their success to their children, or that they have failed as individuals to achieve what was promised by the American Dream, point to blacks to explain this dissatisfaction. See Roy, supra note 8, at 338, 343-44. They blame blacks, who they believe have "stolen" the Dream so that whites are now "working for them." Id. at 343; see also id. (noting that one white woman "believed she was paying for their privilege").

n284. See, e.g., Sturm & Guinier, supra note 79, at 995 & n.183 (reporting that legacies account for up to twenty-five percent of admissions to some of the top schools in the country (citing Sheila Foster, Difference and Equality: A Critical Assessment of the Concept of "Diversity", 1993 Wis. L. Rev. 105, 143)); Jim Spencer, Family Ties Bind College Admissions, Denv. Post, June 29, 2003, at A25 (noting Harvard Professor Gary Orfield's assertion that "legacies ... get into schools at acceptance rates in excess of all students, including ethnic minorities"); cf. Karen W. Arenson, Study of Elite Colleges Finds Athletes Are Isolated from Classmates, N.Y. Times, Sept. 15, 2003, at A12 (reporting on a study by Bowen finding that athletes enjoy an even greater admissions advantage than legacy admits and, at Ivy League schools, than students of color). But see Bowen & Bok, supra note 96, at 28-29 (claiming that the "overall admission rates" for legacies and black candidates are "roughly the same" at the five elite schools surveyed, and further arguing that, when test scores are taken into account, "black candidates are consistently admitted at higher rates than legacies," although both groups enjoy an advantage over other candidates).

n285. As Justice Thomas implied in his dissent in Grutter, legacy preferences may also go unchallenged because they serve to perpetuate elites' hold on educational institutions, thus protecting the same elites involved in other areas of key institutional and societal decisionmaking. See Grutter, 123 S. Ct. at 2360 n.10 (Thomas, J., concurring in part and dissenting in part) ("Were this Court to have the courage to forbid the use of racial discrimination in admissions, legacy

preferences (and similar practices) might quickly become less popular - a possibility not lost, I am certain, on the elites (both individual and institutional) supporting the Law School in this case.").

n286. See Charles R. Lawrence III & Mari J. Matsuda, We Won't Go Back: Making the Case for Affirmative Action 96-97, 128 (1997) (asserting that legacy admits do not carry the same stigma that affirmative action admits carry, even though a 1990 Office of Civil Rights compliance review found that at Harvard University legacy admits had mean SAT scores that were thirty-five points below the mean scores for all admitted students).

n287. Justice O'Connor's opinion in Grutter at times suggested this popular view of diversity as oppositional to "merit." For example, Justice O'Connor warned that decreasing the emphasis on testing might "require a dramatic sacrifice [in] ... the academic quality of all admitted students." Grutter, 123 S. Ct. at 2345. Similarly, in finding the Law School's policy sufficiently individualized, she noted that "the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission." Id.

n288. It is the privileging of "testable merit" that contributes to stigma. See Krieger, Perestroika, supra note 162, at 1271 ("Selection using a procedure perceived as unfair imposes stigma and leads to other negative effects ... .").

n289. See Grutter, 123 S. Ct. at 2349 (Scalia, J., concurring in part and dissenting in part) (comparing the "educational benefit" of diversity to lessons learned by kindergarteners).

n290. As Justice Scalia asked counsel for the Law School: "Now, if Michigan really cares enough about that racial imbalance, why doesn't it do as many other State law schools do, lower the standards, not have a flagship elite law school, it solves the problem." Transcript of Oral Argument at 31, Grutter (No. 02-241), available at http://www.supremecourtus.gov/oral arguments/ transcripts/02-241.pdf.

n291. See supra notes 112-114, 283, and accompanying text (discussing the

relationship between the individual opportunity of the American Dream and the racial scapegoating that is used to explain individual failure in nonindividual terms).

n292. Thus, the schools, playing by the Court's own rules, may find it difficult to meet Justice O'Connor's mandate to create admissions processes that "remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application." Grutter, 123 S. Ct. at 2343.

n293. Justice Scalia, in his Grutter dissent, sarcastically warned of such backlash as he questioned the "educational benefits" of diversity: "The nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand." Id. at 2349 (Scalia, J., concurring in part and dissenting in part). While one can discern a certain desperation in the efforts of the Center for Individual Rights and others to continue to recycle their old rhetoric post-Grutter, there is no doubt that the public remains skeptical of "racial preferences." As Derek Bok points out, while there has been a huge shift in public attitudes on race over the last twenty-five years, the animus toward "racial preferences" has remained surprisingly stable. See Bok, supra note 24.

n294. Cf. Baltzell, supra note 1, at 277 ("The economic reforms of one generation tend to produce status conflicts in the next."); Brooks, supra note 58, at 31 ("Tocqueville's principle of revolutions proved true: as social success seems more possible for a rising group, the remaining hindrances seem more and more intolerable."). But cf. Lemann, supra note 17, at 345 (explaining the role of universities after World War II as the "arbiter of fates" and arguing that, despite the rhetoric of opportunity for all, the American university system, with its emphasis on contest mobility, served primarily as a means of "transferring status between generations, not of altering or upending it").

n295. See supra note 105.

n296. Lemann, supra note 17, at 345-46.

n297. Id.; see also Jacques Steinberg, 3 Look to College Suit To Show Their Merits, N.Y. Times, Feb. 23, 2003, at A32 (reporting in an interview with Jennifer Gratz that her father is a police officer and that she "grew up in Southgate, a working-class Detroit suburb").

n298. Recent studies show that well-educated whites especially disapprove of "racial preferences" in college and university admissions. They are defensive in this regard for two reasons. First, admissions criteria and practices directly affect this group, since the limited number of freshman seats at first-, second-, and third-tier institutions has prompted the downward cascade of thousands of middle-class and affluent white students who have been prepared since preschool to matriculate at elite institutions. Contest mobility and the presumption that "the system's main task should be to select a small number of people to form a new elite" have turned universities into the object of yearning for those who seek a "general, long-duration ticket to high status that can be cashed in anywhere." Lemann, supra note 17, at 344, 347. As a result of the rigorous sorting process that has accompanied the introduction of contest mobility, upper-middle-class parents have become deeply invested in passing on this important credential to their offspring. In fact, well-educated whites are more opposed to affirmative action than poorly educated whites, even though they are more liberal on issues such as minority representation in legislatures, minority hiring for public works jobs, and minority set-asides in public contracting. Swain et al., supra note 125, at 173-74 (citing James M. Glaser, A Quota on Quotas: Educational Differences in Attitudes Towards Minority Preferences (1999) (unpublished manuscript, on file with Tufts University, Political Science Department)). <PARA'0 pt'0 pt'0 pt'>Second, as Michael Young predicted when he invented the term "meritocracy" in the 1950s, those who "win" a contest presume that the contest is fair and that they deserve to win. Lemann, supra note 17, at 343-44; id. at 344 ("Today's upper-middle-class American Mandarins have taken on this set of attitudes. The notion that they are participating (and succeeding) in a great, broad, fair, open national competition is at the heart of their idea of themselves ... .").

n299. See Brooks, supra note 58, at 52-53.

n300. See Lemann, supra note 17, at 288 ("The modern American meritocracy was set up privately, outside the purview of politics and open debate. Indeed,

standardized testing for college and graduate-school admissions and its add-ons like affirmative action were probably the most consequential arrangements put in place without a public consensus behind them in late-twentieth-century America.").

n301. Contest mobility appears more fair than sponsored mobility primarily because its objective measures of "merit" hide their own consistent associations with indicia of social status, including race. See supra pp. 146-47. By contrast, sponsored mobility, while continuing to hide most of these associations, elevates a single one: race. With its lack of transparency in a decisionmaking process tightly controlled by a relatively homogeneous elite, sponsored mobility may create the perception of "preference" at the expense of "merit." The perception of preference is what Justice Souter, dissenting in Gratz, called "suspicion," which he concluded "does not carry petitioners' ultimate burden of persuasion in this constitutional challenge." Gratz, 123 S. Ct. at 2441 (Souter, J., dissenting) (citation omitted). Nor does suspicion "warrant condemning the college's admissions scheme on this record." Id. However, this perception may compromise the system's legitimacy in the eyes of the public - legitimacy that Justice O'Connor emphasized in her majority opinion in Grutter. See Grutter, 123 S. Ct. at 2341 ("All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training."). As Krieger writes: One could argue that ... what actually matters is the perception that selections are based on strong group preferences at the expense of merit-related factors. Thus, the discourse surrounding affirmative action will have more effect on public reactions to such policies than will the actual details of the programs themselves... . People's reactions to distributive choices are influenced not only by resulting patterns of distribution, but also by the perceived fairness of the procedures used in making them. The fairer the policy, the more positive the evaluations. Krieger, Perestroika, supra note 162, at 1270-71 (footnotes omitted); cf. Gerken, supra note 108, at 13 (noting the theory that "appearances do matter" in the context of jury composition and that public confidence in jury decisionmaking is tied to diversity within those decisionmaking bodies).

n302. The Court's embrace of an admissions process premised on sponsored mobility is thus less problematic than a "colorblind" system premised on contest mobility, such as that advocated by Justice Thomas. See Grutter, 123 S. Ct. at 2365 (Thomas, J., concurring in part and dissenting in part). As Krieger writes:

The "colorblindness" approach to nondiscrimination will prove ineffective because it provides neither a framework for enabling people to recognize the effects of race, gender, or national origin on their perceptions and judgments, nor the tools required to help them counteract those effects. Indeed, a colorblindness-centered interpretation of the nondiscrimination principle, coupled with well-meaning people's awareness that they do categorize along racial and ethnic lines, may exacerbate the very intergroup anxiety and ambivalence that lead to what social psychologists refer to as aversive racism. Krieger, Perestroika, supra note 162, at 1277.

n303. As discussed above, see supra note 271, Justice Thomas acknowledged the underperformance of blacks in admissions testing but seemed more willing to blame blacks rather than the institutional construct that continues the pattern of elite-driven commitments to artificial yet quantifiable forms of merit, which he decried. See Grutter, 123 S. Ct. at 2360-61 (Thomas, J., concurring in part and dissenting in part) (noting the poor performance of blacks on the LSAT and questioning whether the test is an accurate predictor of merit, but then reasoning that, "having decided to use the LSAT, the Law School must accept the constitutional burdens that come with this decision" - presumably, "race-blind" adherence to the scores).

n304. In her dissent in Gratz, Justice Ginsburg pointed to the "large disparities" that endure in the "wake of a system of racial caste only recently ended." Gratz, 123 S. Ct. at 2443 (Ginsburg, J., dissenting) (citation omitted) (internal quotation marks omitted). Citing "poverty," disparities in health care, "irrational prejudice," and "bias both conscious and unconscious," Justice Ginsburg argued that the racial groups benefiting from affirmative action "have been relegated to inferior status by law and social practice; their members continue to experience class-based discrimination to this day." Id. at 2443-45.

n305. Justice Ginsburg cited group-level racial disparities in unemployment rates, poverty levels, and health care access, id. at 2443 nn.1-3; segregation among minorities and whites in housing and education, id. at 2443 n.4; inequalities in schools and poor performance among racial minorities, id. at 2443 n.5; employment discrimination against racial minorities, id. at 2443 n.7; discrimination in housing sales and purchases, id. at 2444 n.8; and even racial disparities in car prices, id. at 2444 n.9.

n306. See supra notes 162-163, 277-279, and accompanying text (discussing the tendency of elites to self-replicate).

n307. See supra note 252. The opinions illuminate the complex relationship between race, admissions, and the use of numbers. On the one hand, Justice O'Connor recognized the imperfection of using numbers to measure "merit," such as through the LSAT: In reviewing an applicant's file, admissions officials must consider the applicant's undergraduate grade point average (GPA) and Law School Admissions Test (LSAT) score because they are important (if imperfect) predictors of academic success in law school... . The policy makes clear, however, that even the highest possible score does not guarantee admission to the Law School... . The policy requires admissions officials to look beyond grades and test scores to other criteria that are important to the Law School's educational objectives. Grutter, 123 S. Ct. at 2332 (emphasis added) (citations omitted). On the other hand, Dennis Shields's testimony, cited by Justice Kennedy in his dissent in Grutter, illustrates the usefulness of numbers in an admissions process to help measure whether the process is meeting its own goals: "Shields generated these reports because the Law School's admissions policy told him the racial make-up of the entering class was "something [he] needed to be concerned about,' and so he had "to find a way of tracking what's going on.'" Id. at 2372 (Kennedy, J., dissenting) (alterations in original). Chief Justice Rehnquist suggested the "bad" use for numbers when he noted that "the correlation between the percentage of the Law School's pool of applicants who are members of the three minority groups and the percentage of the admitted applicants who are members of these same groups is far too precise to be dismissed as merely the result of the school paying some attention to [the] numbers." Id. at 2368 (Rehnquist, C.J., dissenting) (alteration in original) (internal quotation marks omitted). And yet the same criticism can be levied against the school's overreliance on LSAT scores, about which he finds little to fault. See infra note 309.

n308. See supra section II.A (discussing contest mobility).

n309. Although concerns about racial diversity largely drive the critique of

objective admissions criteria, those criteria continue to hold sway. As a result, an admissions process infused with fealty to quantification is awkward and unstable when race is the only item under discussion. Although the Court in Gratz explicitly rejected efforts to quantify race (or at least those efforts that the Court deemed mechanistic), the same over-and underinclusive qualities that the Gratz Court perceived in the University of Michigan's point system also define the University's approach to other demographic and academic variables. To realize a truly diverse student body through a process that is both transparent and accountable, institutions like the University of Michigan need to be willing to reexamine some of their assumptions about the value of numbers in defining desirable outcomes as they relate to both traditional views of academic merit and "critical mass." But such an effort cannot depend on narrowly defending the use of race as an add-on admissions factor alone. It needs to proceed broadly to connect the resistance against racial categorization to the reductionism of people more generally, including the reduction of people to the sum of their test scores.

n310. See Grutter, 123 S. Ct. at 2333 (noting that the director of admissions at the University of Michigan Law School "asserted that she [had to] consider the race of applicants because a critical mass of underrepresented minority students could not be enrolled if admissions decisions were based primarily on undergraduate GPAs and LSAT scores"). The Law School's expert, Dr. Raudenbush, predicted that if race were not considered, "underrepresented minority students would have comprised 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent." Id. at 2334; see also id. at 2344 ("By virtue of our Nation's struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.").

n311. It is well-known that blacks consistently underperform on the hard variables. See, e.g., id. at 2360-61 (Thomas, J., concurring in part and dissenting in part); The Black-White Test Score Gap, supra note 25, at 1-4. Race makes this dynamic visible, and the commitment to the objective measures provides "hard evidence" that is then used to support racial stereotyping.

n312. To the extent the institution uses "categories" to make educational judgments, race is arguably as viable a category as any other (and indeed necessitated by other categories in which race is embedded). Is there a difference, in other words, between taking race into account by weighing and balancing individual candidates, and using race as a category to be weighed against other categories? Some, such as Justices Ginsburg and Souter, believe there may not be a

legitimate distinction between the processes at issue in Grutter and Gratz, except that the latter is open about what is being done in the former. Nevertheless, there is arguably a distinction between using race as an ascriptive and purely phenotypic category, which can be done either in a whole-person assessment or through a point system, and looking at race in the context of other information. Justice Powell's example of a school choosing among a Black Power advocate, a middle-class black, and a white artist might be an example of the latter. Alternatively, using race as a diagnostic tool to provide feedback on the institution's admissions practices as a whole also uses race not as an overinclusive ascriptive quality of an individual, but as a source of relevant information for fine-tuning or overhauling the process. Here, Justice O'Connor's discussion of Dennis Shields viewing the "daily reports" could be an example of all of the above. See Grutter, 123 S. Ct. at 2333.

n313. See infra Part IV (discussing the meaning and necessity of democratic legitimacy).

n314. See supra pp. 173-74; supra notes 240, 258, 259, and accompanying text.

n315. For example, Justice O'Connor stated that "narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks." Grutter, 123 S. Ct. at 2345. However, she offered little guidance on how to define or evaluate "good faith consideration" of alternatives. Although Justice O'Connor is broadly sympathetic to the value of diversity, her opinion does not flesh out the meaning of diversity in particular institutional settings. Her deferential approach, then, circumvents the need to develop rules to guide institutional actors or to insist on transparent procedures that hold them democratically accountable. See id. at 2366 (Rehnquist, C.J., dissenting) ("Although the Court recites the language of our strict scrutiny analysis, its application of that review is unprecedented in its deference."). In the eyes of Chief Justice Rehnquist, Justice O'Connor's deference to educators allows her to avoid interrogating through strict scrutiny the way those individualized and holistic judgments would be made.

n316. See Nicholas Lemann, Beyond Bakke: A Decision That Universities Can Relate To, N.Y. Times, June 29, 2003, 4 (Week in Review), at 14; cf. Wilkins, supra note 160, at 16 ("Contrary to the tone of much of the rhetoric ... , the most plausible account of the social purpose of higher education is not that it is a prize for those with the best high school records and test scores. Even if we concede that

these criteria measure a certain kind of valuable intellectual ability, society legitimately expects more from universities than simply giving students with these talents an opportunity to enhance their skills."). See generally Wolff & Wolff, supra note 71 (comparing the social purposes of hospitals and universities).

n317. See supra note 109 and accompanying text.

n318. Graham Spanier, President, Pennsylvania State University, Remarks at the Civil Rights Project Conference (July 16, 2003) (responding to statements made by university administrators from the University of California campuses at Los Angeles, San Diego, and Berkeley, describing their various efforts to read applicant files two or three times, "norm" individual readers, and quantify variables other than race). According to one administrator, these processes have made her school's admissions choices better.

n319. See Press Release, University of Michigan, New U-M Undergraduate Admissions Process To Involve More Information, Individual Review (Aug. 28, 2003) (describing a new process enacted in response to the Court's decisions that will include "multiple levels of highly indivi-dualized review" of all applicants), http://www.umich.edu/news/index.html?Releases/2003/Aug03/ admissions; Sarah Freeman, Admission Plan Unveiled in Mich., Boston Globe, Aug. 29, 2003, at A8 (reporting that the school expects to spend close to $ 2 million to hire and train additional staff to read applications). Three important developments accompanied the announcement of this new plan. First, the school apparently modified its mission statement specifically to include its commitment to "enroll and graduate applicants who will ... contribute to the University community, the State of Michigan, and the broader society." Michigan Mission Statement, supra note 49. President Mary Sue Coleman also underscored the reason for these changes: "As a public university, we also have an important and distinctive role to provide access to students from all walks of life." Press Release, supra. Second, the school announced that the new admissions process would be subject to "regular review and evaluation over the coming months and years." Id. Jonathan Alger, Assistant General Counsel for the University, said that the policy was a "living document" that would be under continuous review. Freeman, supra (quoting Alger) (internal quotation marks omitted). Third, the school's diversity commitment now affects all applicants. The new application for admission includes a set of questions asking all students to explain their "expected contributions to the campus community, significant intercultural experiences, or unusual life circumstances," as well as the educational background of their parents and grandparents. University of Michigan, The Application, at http://www.admissions.umich.edu/process/application/ (last

visited Oct. 11, 2003). Applicants must also write an essay about how they will contribute to a campus community that is "academically superb and widely diverse," or how cultural diversity has affected them. University of Michigan, Sample Application, at http://www.admissions.umich. edu/process/application/sample-application.pdf (last visited Oct. 11, 2003) [hereinafter Sample Application].

n320. This possibility is a potential weakness that can be mediated somewhat if universities make the investment in personnel and interactive relationships to make review meaningful for all applicants. For example, Michigan's new admissions application requires all students to describe their future contributions to a diverse campus community. Sample Application, supra note 319. However, to the extent that colleges and universities obscure their admissions criteria, the elite are free to choose applicants like themselves and then legitimate those choices with a critical mass of people of color. If that is the case, working-class whites and poor people of all colors will continue to be underrepresented in these institutions because sponsored mobility, which uses race and class selectively to diversify an admissions pool that otherwise remains highly skewed toward the affluent, is under no obligation to keep up with increased demand from a more racially and economically diverse age cohort at a time of declining public revenues that lead to tuition hikes and less money for financial aid. See supra note 61 and accompanying text; sources cited supra notes 65-66, 138-139, 142, and accompanying text. This is not the fault of affirmative action. It is the fundamental flaw of a sponsored mobility approach to admissions, and it occurs at the settled core of decisionmaking, not along the margins.

n321. See Grutter, 123 S. Ct. at 2342 ("Universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission. Universities can, however, consider race or ethnicity more flexibly as a "plus' factor in the context of individualized consideration of each and every applicant." (citation omitted)).

n322. See id. at 2346 (stating that "the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary," and that universities should "experiment[] with a wide variety of [race-neutral] alternative approaches").

n323. See id. ("The acid test of [affirmative action programs'] justification will be their efficacy in eliminating the need for any racial or ethnic preferences at ... all." (citations omitted)). As former Harvard President Derek Bok states, the twenty-five-year expectation is "more than simply a reminder of the necessity of reevaluating race consciousness; it is a warning to do something about the underlying problem." Bok, supra note 24.

n324. See supra p. 195.

n325. Or it may be that the Court intentionally avoided defining diversity because it agreed with Justice Thomas's assertion that diversity is primarily an aesthetic value rather than a functional value. See Grutter, 123 S. Ct. at 2352 n.3 (Thomas, J., concurring in part and dissenting in part) ("I refer to the Law School's interest as an "aesthetic.' That is, the Law School wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them."). Perhaps, as with obscenity, Justice O'Connor knows diversity when she sees it. Cf. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J. concurring) (stating, with regard to pornography, "I know it when I see it"). Or, as with obscenity, the Court may want local communities to articulate their own standards of diversity within the framework of broad legal standards set by the Court. Cf. Miller v. California, 413 U.S. 15, 24-26 (1973) (leaving it to states to define obscenity within the limits of the Court's three-part test, which referred to "contemporary community standards"). The idea of leaving responsibility at the local level also connects to notions of individualism, as contemplated by James Conant. Conant hoped a class of "American radicals" would arise to revitalize the post-World War II United States. The American radical, he wrote, "will favor public education ... . By the same token, he will be forever harping on the dangers of Federal control of institutions concerned with youth." James B. Conant, Wanted: American Radicals, Atlantic Monthly, May 1943, at 41, 43.

n326. See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 290 (O'Connor, J., concurring in part and concurring in the judgment) (stating that voluntary self-correction is valuable to further the objectives of the law, in part "because of the example [an institution's] voluntary assumption of responsibility sets").

n327. Justice O'Connor mentioned toward the end of her Grutter opinion that universities may look to the admissions experiments going on in states like California, Washington, and Florida, where race-conscious admissions have been

outlawed, to find new, race-neutral ways of achieving the goal of diversity. Grutter, 123 S. Ct. at 2346. Both California and Florida use percentage plans. Id. at 2345. Justice Souter's dissent in Gratz asserted that percentage plans, while "just as race conscious" as the University of Michigan's point system, are constitutional. Gratz, 123 S. Ct. at 2442 (Souter, J., dissenting). This statement suggests that Justice Souter sees the Grutter rationale as applying only to systems that use race as an explicit criterion.

n328. Indeed, institutions are free to consider race in any or all of these ways, as long as race is not singularly outcome-determinative. However, as Dean Lehman testified in Grutter, race may in fact "determine" the outcome in some cases. See Grutter, 123 S. Ct. at 2334 ("In some cases, according to Lehman's testimony, an applicant's race may play no role, while in others it may be a determinative factor." (internal quotation marks omitted)).

n329. Id. at 2332.

n330. See Carnevale, supra note 11; see also supra note 61.

n331. See Lempert et al., supra note 136, at 457 (describing the 1970s affirmative action beneficiaries as "pioneers" with an unusual commitment to service, mentorship, and community leadership that appears to "reflect a genuine cohort effect"); id. ("On every measure ... examined, minority graduates of the 1970s do more than minority graduates of the succeeding decades.").

n332. Given state fiscal crises and shrinking state budgets, financial support for public colleges may "float more toward local and regional sources." Greg Winter, Private Gifts Bring a Public College to Town, N.Y. Times, Aug. 3, 2003, at A1 (quoting Travis Reindl, director for state policy analysis at the American Association of State Colleges and Universities) (internal quotation mark omitted). In addition, the involvement of local communities is characteristic of self-reflective practice. For example, Jennifer Gordon, in describing the democratic values of what she calls a "new governance" approach to public problem solving, writes that such practices "bring[] a variety of stakeholders together to collaborate on developing solutions to problems in the local context in which they arise, rather than relying on formal, state-articulated rights." Jennifer Gordon, New Governance

Models, New Roles for Rights: Lessons from the Underground Economy 4 (Nov. 4, 2002) (unpublished manuscript, on file with the Harvard Law School Library); see also infra notes 368, 391.

n333. These reform efforts need to be national because no one wants to go at it alone. They also need national support because many of the conditions underlying the current crisis are structural and beyond the capacity of any single institution to resolve. See infra notes 368, 391 (describing the importance of sharing information across institutional and state lines). For example, Stanley Fish describes a crisis in public higher education exemplified by the University of Illinois at Chicago, where applications have increased by thirty percent while government funding has diminished. Stanley Fish, Colleges Caught in a Vise, N.Y. Times, Sept. 18, 2003, at A31. The university's expenses now exceed tuition by a factor of three to one, yet public funds cover just twenty-five percent of the university's operating costs. Id. Fish decries Republican efforts to introduce legislation that would cut federal funding to colleges whose tuition hikes are more than twice the rate of inflation. Id. The bill's sponsors, Fish complains, want universities to operate more like businesses in terms of efficiency but do not want them to act like businesses by adjusting prices in response to changing conditions. Id. In addition, reform efforts need to be national to make college more affordable and more accessible. Whereas many current state initiatives simply "make people who are already going to attend more comfortable with the expense," federal government subsidies can "introduce new people into the system." Beth Potier, Who Goes to College?, Harv. Univ. Gazette, Sept. 25, 2003, at 13 (quoting economist Bridget Terry Long, who studied the merit-based Georgia HOPE scholarship and found that eighty percent of its beneficiaries would have attended college anyway) (internal quotation mark omitted); see also Sam Dillon, Public University in Ohio To End Instate Tuition Break, N.Y. Times, Apr. 5, 2003, at A9 (describing the declining government support for public education that led Miami University in Ohio to increase its tuition for instate residents). Although state tuition increases may be accompanied by additional scholarship awards, tuition increases will make many poor students reluctant to apply "because low-and moderate-income students tend to pay more attention to a university's sticker price than to the financial aid that is available." Id. (citing Joni E. Finney, Vice President of the National Center for Public Policy and Higher Education).

n334. Bok, supra note 24. The problem is not just that black and Latino students are underrepresented in colleges and law schools; these students are also seriously underrepresented among high school graduates nationwide. See Diana Jean Schemo, Graduation Study Suggests That Some States Sharply Understate High School Dropout Rates, N.Y. Times, Sept. 17, 2003, at B9 (describing a study finding that only half the black, Latino, and American Indian students in the class

of 2001 left high school with diplomas).

n335. Diana Jean Schemo, Chapel Hill Campus To Cover All Costs for Needy Students, N.Y. Times, Oct. 2, 2003, at A18 (quoting James Moeser, Chancellor of the University of North Carolina at Chapel Hill) (internal quotation mark omitted) (discussing the school's new policy to cover all college expenses for poor and working-class students).

n336. Racial literacy was at work in the development of the Texas Ten Percent Plan. The designers of the Plan picked race as the initial lens through which to examine the larger institutional, political, and economic structures within the communities served by the state's flagship schools. Although the TTP's designers started with race, they ultimately invited inquiry into the interdependence of race, class, and geography to restructure access to educational opportunity for large numbers of people. If institutions do not understand this interplay, broad-based access to higher education will be elusive. Cf. Shaw v. Reno, 509 U.S. 630, 646 (1993) (noting that "the legislature is always aware of race when it draws district lines, just as it is aware of age, economic status, [and] religious and political persuasion"). Compare B. Forest, Hidden Segregation? The Limits of Geographically Based Affirmative Action, 21 Pol. Geography 855, 855 (2002) (arguing, based on the experience at Texas A&M, that "there may simply be no adequate proxy for racial identity other than racial identity," despite efforts by states to use geography as a proxy for race through percentage plans), with Torres, supra note 198 (manuscript at 12) (suggesting that UT Austin's uniquely aggressive recruiting through scholarship aid successfully helped to create a "broad and deep version of diversity" that spanned race, class, and geography). The TTP was also broadened to include working-class and poor whites, as well as rural and urban residents, given the mandate of the Hopwood decision. However, the TTP specifically avoided converting the demographic category of race into an outcome-determinative numerical metric. As evidenced in Grutter and Gratz, the use of numbers that are explicitly linked to race reveals the otherwise unspoken premises of contest and sponsored mobility, inviting, albeit unfairly, the charge of quotas, racial balancing, or racial segregation. See, e.g., Grutter, 123 S. Ct. at 2342 ("[A] "quota' is a program in which a certain fixed number or proportion of opportunities are "reserved exclusively for certain minority groups.'" (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 496 (1989))); id. at 2368-69 (Rehnquist, C.J., dissenting) (concluding that racial balancing, not "critical mass," was the Law School's aim); id. at 2350 (Scalia, J., dissenting) (discussing "universities that talk the talk of multiculturalism ... but walk the walk of tribalism and racial segregation").

n337. These factors include the skyrocketing tuitions of state colleges, the shift

from scholarship aid to loans, the pressure on students to borrow more to pay for college, and the resulting skew in the jobs they can afford to take upon graduation. See sources cited supra notes 65-66 and accompanying text; supra notes 332-333. As a result of these factors, higher education is not a level playing field - not only for blacks and Latinos, but also for working-class and even middle-class whites. See supra p. 148.

n338. See, e.g., The Connection, supra note 9 (explaining, through guest Patrick Callan, President of the National Center for Public Policy and Higher Education, that the shift in thinking about intergenerational obligation has led to dramatic tuition increases at state universities such that parents can no longer afford for their children to attend).

n339. See Kornhaber, supra note 48 (noting that a commitment to training leaders who then serve society originated with American public institutions of higher education and remains one of the seminal contributions of American public higher education "to all universities public and private, here and abroad" (citing Bok, supra note 50)).

n340. Lemann, supra note 17, at 345.

n341. Id. at 347. There is a "crush at the gates of selective universities" precisely because "people believe admission can confer lifelong prestige, comfort, and safety, not just access to jobs with specific functions." Id.

n342. Id. at 348.

n343. To understand more fully the relationship between higher education and public service, racially literate decisionmakers could study the challenges facing men and women of color generally. They would learn, for example, that race has been a key factor in ongoing black-white mobility gaps. See Hertz, supra note 119 (manuscript at 15) (noting that "differences in years of parental schooling do not

explain much of the race-based mobility gap"). They would also learn that, with the exception of historically black colleges, the military has made the greatest inroads in reshaping the trajectory of opportunity for blacks and Latinos. See supra note 232. The military has become the educational engine for racial integration and socioeconomic mobility in the name of national service. Educational opportunity is otherwise limited for most blacks and Latinos, who rarely comprise a critical mass even on college campuses that practice affirmative action. The demographics of the military also highlight the declining commitment to service among the more affluent members of society. Those who can afford college tuitions on their own apparently have no reason to enlist. Halbfinger & Holmes, supra note 232 ("In World Wars I and II, the British nobility had a higher killed-in-action rate than the working class... . But the officer corps today does not represent American nobility. These are not people who are going to be future congressmen or senators. The number of veterans in the Senate and the House is dropping every year. It shows you that our upper class no longer serves." (quoting Charles C. Moskos, Professor of Sociology at Northwestern University) (internal quotation marks omitted)). Because it connects service to both educational opportunity and equal opportunity, the military provides important evidence to justify bold action. By providing a financial and ideological link between higher education, equal opportunity, and public service, civilian institutions can likewise mobilize public support to fill the gap left by the withdrawal of government aid to colleges and universities.

n344. See supra sources cited notes 64-67; supra notes 68, 333.

n345. The relationship between context and merit, and between institutional mission and admissions criteria, is the subject of an increasingly rich scholarly debate. One question many scholars have recently addressed is whether merit is stable or whether it is responsive to environmental conditions and institutional objectives. Richard Banks, for example, effectively argues that "merit is a functional concept" that "is necessarily defined with respect to particular contexts, goals and values." Banks, supra note 124, at 1034. Charles Lawrence proposes that universities redefine merit "by asking which students will best serve the university's goal of changing conditions of inequality." Lawrence, supra note 166, at 932. Similarly, Pamela Karlan argues that universities, in order to fulfill their mission, must look beyond grades and test scores to admit candidates who will improve the quality of education through their diverse perspectives and who will serve society through their leadership. Pamela Karlan, Easing the Spring: Strict Scrutiny and Affirmative Action After the Redistricting Cases, 43 Wm. & Mary L. Rev. 1569, 1597 (2002). Another, deeper question up for debate is whether merit measures absolute or marginal outcomes. Banks, for instance, argues for a relative-achievement conception of merit that considers socioeconomic background, in part because low-income students benefit far more from attending elite institutions than

their high-income counterparts. Banks, supra note 124, at 1055 ("Lower socioeconomic status students reaped greater earnings benefits than higher socioeconomic status students from attending high status colleges."). Banks also suggests that low-income students gain more productivity from higher education, thus benefiting society more. Id. at 1049-56. Scholars acknowledge that this approach has some opportunity costs in terms of forgoing opportunities for the best-prepared students to excel in the best institutions of higher learning; however, they point out that the present system also has opportunity costs in terms of failing to educate students who may reap the best "rate of return" from their education. They propose that at least some portion of our elite higher education resources should be redirected to those who most need those resources, and that universities should reconfigure their missions to focus more on marginal utility than on polished performance. Wolff & Wolff, supra note 71, at 45-47, 60-63; see also Dweck, supra note 107 (arguing that learning is premised on a student's belief in the malleability of ability). The bottom line, as Linda Krieger argues, is that "some conception of merit is essential for any public institution faced with the task of distributing scarce and valued resources. That said, the concept of merit cannot be taken at face value." Krieger, Perestroika, supra note 162, at 1293.

n346. Keith W. Olson, The G.I. Bill, the Veterans, and the Colleges 110 (1974) (suggesting that society as a whole benefited from the GI Bill's "increased government support of education, especially for minority groups who required assistance"); see also supra notes 192, 232, 343, 345.

n347. I would characterize the undergraduate policy rejected in Gratz as an efficient form of sponsored mobility. The policy seemed animated by the efficiency concerns of contest mobility to protect the institution's selectivity while engaging in a more holistic review that is generally associated with sponsored mobility. It is not consistent with structural mobility because individuals were not assured admission based on their past or future service, because the criteria were not developed interactively as part of a public conversation, and because the policy treated race, class, and geography as isolated variables instead of acknowledging the relevant interplay among these criteria. Indeed, the criteria appeared to be arbitrarily assigned in ways that did not allow grassroots organizations or others to provide accountability, information, feedback, or public support. One could conceivably argue, however, that the policy was a weak form of structural mobility, since the admissions index considered individuals within the context of their communities and accordingly awarded points for class (20 points for socioeconomic disadvantage or attendance at a predominantly minority high school), race (20 points for membership in an underrepresented minority group), and geography (10 points for residence in Michigan, and another 6 points for residence in an underrepresented Michigan county). See Final Brief of Appellees at

8-10, Gratz v. Bollinger, 309 F.3d 329 (6th Cir. 2001) (Nos. 01-1333, 01-1418, 01-1416), http://www.umich.edu/ urel/admissions/legal/gratz/gratz appeal.html.

n348. See Sullivan, supra note 16, at 1040 ("Education has remained a sphere in which forward-looking functional or distributive justifications remain constitutionally sufficient, independent of past sins of discrimination."); see also supra note 319 (describing Michigan's post-Gratz admissions policy, in which diversity considerations now affect all applicants).

n349. See Expert Report of Claude M. Steele, Gratz v. Bollinger, 135 F. Supp. 2d 790 (E.D. Mich. 2001) (No. 97-75321), Grutter v. Bollinger, 135 F. Supp. 2d 874 (E.D. Mich. 2001) (No. 97-75928), http://www.umich.edu/urel/admissions/research/expert/steele.html ("Experiences tied to one's racial and ethnic identity can artificially decrease standardized test performance."); see also Cohen et al., supra note 27, at 1302-18.

n350. See Bradley W. Joondeph, Note, Killing Brown Softly: The Subtle Undermining of Effective Desegregation in Freeman v. Pitts, 46 Stan. L. Rev. 147, 166 n.134 (1993).

n351. For example, race helps us see that even when institutions supplement quantitative measures with subjective criteria, presumably to enhance predictive value or to achieve additional educational or democratic goals, they are still only making educated guesses. Sturm & Guinier, supra note 79, at 1003-08 (describing the false promise of prediction); see also Michigan Mission Statement, supra note 319 (announcing the University of Michigan's new admissions policy and describing admissions as "more art than science"). Only a very loose fit exists between evaluative criteria and outcomes; the relationship between signals and skills is modest at best. Wilkins, supra note 160, at 18 (stating that "a combination of the subjectivity of quality assessments and the fact that those who are being hired have yet to develop the skills and dispositions that the employer is seeking make it likely that the fit between credentials and social purposes will be relatively loose"); see also supra pp. 147-49; infra note 363.

n352. See Krieger, Perestroika, supra note 162, at 1297 (citing Sik Hung Ng, Equity and Social Categorization Effects on Intergroup Allocation of Rewards, 23

Brit. J. Soc. Psychol. 165 (1984)) ("The fairness rules chosen to govern the allocation of social resources, including those grounded in conceptions of merit, are not preordained manifestations of natural law. They are social, ultimately political decisions, subject to the same forms of intergroup bias that influence reward allocation in other intergroup contexts.").

n353. Lemann, supra note 17, at 347. The idea that people should be chosen "for their general worth, as if they were an updated Puritan elect," rather than for their suitability for specific roles, "is an idea we should abandon." Id.

n354. Id. at 26 (describing the origins of the meritocracy). Democratic merit thus responds to critics like Lemann who claim that contest and even sponsored mobility use higher education to select a small governing elite. See id. at 349-50. Democratic merit would develop over time. It would not simply rely on experts to supply democratic justifications through their choices. Rather, it would seek to open up other opportunities to provide the public with justifications that would be more honest because they would involve participants justifying choices to each other.

n355. See supra notes 48-49 and accompanying text; sources cited supra notes 50-55 and accompanying text.

n356. See Michael S. Greve, A River Runs Dry, Pol'y Rev., Apr.-May 1999, at 81 (reviewing Bowen & Bok, supra note 96) ("Public universities, at least, have a democratic or (in James Q. Wilson's phrase) "representational' function. We do not like public institutions that serve only a select few."); cf. David Adamany, Science and the Urban University, 221 Sci. 427, 430 (1983) ("[A] corporate patronage system for public universities flies in the face of this nation's democratic impulse to make its public institutions genuinely independent of private persons and entities." (emphasis added)); Kornhaber, supra note 48, at 2 (noting that admissions policies that exclude growing portions of the population from selective public colleges and universities may well generate a backlash against selective public higher education).

n357. See Amy Gutmann & Dennis Thompson, Democracy and Disagreement 31-35 (1996) (arguing that a democratic process needs to be constituted

democratically). Diverse decisionmaking processes, such as those involved in assembling representative juries, produce a "broad range of democratic outcomes" and can be a means of "measuring community norms." Gerken, supra note 108, at 5-6. These processes provide a "new paradigm for thinking about democratic fairness" and offer "citizens a wide variety of participatory experiences." Id. They can also provide a "safety net in a world where it is difficult to determine where communities divide and whether we ought to recognize those divisions." Id. A racially literate process uses multiple sources of information to generate effective problem-solving approaches, to hold the institution accountable to a diverse group of constituencies, and to provide institutional decisionmakers with the most reliable and inclusive bases of knowledge before they act. The commitment to racial literacy also requires institutions to assemble their decisionmakers based on a theory of representation that values participatory and ongoing relationships with the institution's many constituencies; representativeness is not conveyed simply through strict demographic categories. See Guinier & Torres, supra note 28, at 220-22 (arguing that theories of representation that depend simply on synecdoche, such that the part stands in for the whole, result in a system in which representation becomes a performative act rather than a relationship through which the represented choose their representatives and continue to interact with them even after they are selected).

n358. Universities are more likely to garner public support to the extent they fulfill their larger public service obligations. As former Cornell University President Frank H.T. Rhodes argues, today's universities can fulfill these obligations by experimenting with, testing, and developing demonstration models, and by assisting in outreach programs to communities in need without dictating their results. See Frank H.T. Rhodes, The Creation of the Future: The Role of the American University 195-97, 205 (2001). In this way, they can build on the model of the Morrill Act of 1862, which "set the stage for the most distinctive and most successful example of public service by American universities." Id. at 195; cf. Wolff & Wolff, supra note 71, at 42 (suggesting that, like hospitals, universities should determine who will benefit most from their resources, rather than who is closest to "perfect educational health").

n359. Educational institutions could convene "citizen juries," or deliberative polls, both to get a sense of what they should look for in applicants and to garner some credibility in communities that might be suspicious of their motives and processes. See infra note 392.

n360. See supra note 188 (defining the term "stakeholder").

n361. In fact, the Court in Grutter found notable the inclusion of educators and administrators in formulating the Law School's admissions policy. Justice O'Connor drew attention to the fact that the dean of the Law School, in crafting the admissions system, turned to a faculty committee to draft a policy consistent with the Law School's mission and the Bakke decision, and subsequently asked the full faculty to adopt the committee's findings. Grutter, 123 S. Ct. at 2331.

n362. According to Justice O'Connor, race demands oversight. See id. at 2345 ("Even remedial race-based governmental action generally "remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.'" (quoting Regents of University of California v. Bakke, 438 U.S. 265, 308 (1978))); see also Sunstein, supra note 244, at 209-13 (arguing that our natural tendency toward conformity, social cascades, group polarization, and even error is heightened in settings in which racial and informational diversity are limited and dissenting voices are not systematically included).

n363. To the extent that rules are less visible to participants, and the process of judging less accountable, such rules are likely to be less "meritocratic" and more self-replicating. See Wilkins & Gulati, supra note 8, at 1678 n.287; see also Galen V. Bodenhausen & Robert S. Wyler, Effects of Stereotypes on Decision Making and Information-Processing Strategies, 48 J. Personality & Soc. Psychol. 267, 281 (1985) (discussing a study of various test subjects' reactions to hypothetical transgressors of various ethnicities, and concluding that the study "seems to confirm intuitions that persons often remember information better when it is consistent with stereotypes they have formed"); Russell H. Fazio et al., Variability in Automatic Activation as an Unobtrusive Measure of Racial Attitudes: A Bona Fide Pipeline?, 69 J. Personality & Soc. Psychol. 1013, 1019 (1995) (describing a study showing that white people, unconsciously and automatically, have an easier time associating good adjectives and characteristics with pictures of whites than with pictures of blacks); Michael J. Sargent & Ashley Theil, When Do Implicit Racial Attitudes Predict Behavior? On the Moderating Role of Attributional Ambiguity 18 (n.d.) (unpublished manuscript, on file with the Harvard Law School Library) (finding that "implicit racial attitudes may predict behavior, provided that the behavior can be attributed to a socially acceptable [that is, nonracist] motive"); cf. Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 546-53 (2001).

n364. A meaningful process would not simply invite the relevant stakeholders to

the table, but would foster "deliberative equality" among participants so that traditionally marginalized members of the deliberative body have an opportunity to participate meaningfully in the process. Meira Levinson, Challenging Deliberation 17 (Aug. 8, 2003) (unpublished manuscript, on file with the Harvard Law School Library); see Gordon, supra note 332, at 9, 69-70; Lawrence, supra note 166, at 965 (calling for a "transformative politics" that "helps the privileged comprehend the profound costs associated with inequality"); see also Guinier & Torres, supra note 28, at ch. 5 (arguing that a democratic process should not reproduce power asymmetries); Gerken, supra note 108, at 35 (emphasizing the importance of granting minorities decisive power as a means of signaling trust and respect, in addition to vindicating democratic principles); cf. Samuel R. Sommers & Phoebe C. Ellsworth, White Juror Bias: An Investigation of Prejudice Against Black Defendants in the American Courtroom, 7 Psychol., Pub. Pol'y & Law 201, 209 (2001) (describing a study of white jurors' attitudes toward black defendants in interracial trials, and finding that "when [they] are not reminded or pressed by situational cues to avoid prejudice, White people often let down their guard and demonstrate bias").

n365. To the extent that diverse students are "allowed in" but pedagogical tools remain static, institutions run the risk of fostering "detached learning" and "perspectivelessness." See Kimberlee Crenshaw, Foreword: Toward a Race Conscious Pedagogy in Legal Education, 11 Nat'l Black L.J. 1, 2 (1989) (describing the problems faced by students of color who feel they must "check their identities at the classroom door" in traditional classrooms). See generally Susan Sturm & Lani Guinier, Learning from Conflict: Thoughts on Teaching About Race and Gender, J. Legal Educ. (forthcoming 2003).

n366. Racial literacy's attention to the complexities of "diversity" and associated institutional and process values is sympathetic to the work of critical race theorists who remind us that race must remain in view. See Cheryl Harris, Mining in Hard Ground, 116 Harv. L. Rev. 2487, 2534 (2003) (book review) ("Race and class are simultaneously distinct and mutually constitutive. It is thus necessary to account for the ways in which race is not simply something that obscures class relations, as well as for the ways in which race has structured class relations and class relations in turn have structured race. Translating this interplay into an intervention that takes account of such complexity is no easy task, but we cannot simply adopt a view that reduces race to a politically useful point of departure."); cf. Bobo, supra note 28 (focusing on "inclusion" rather than "diversity," and articulating a set of values that could mobilize Americans to support racial justice in higher education). For a more thorough analysis of how race functions as a way to keep track of

progress, not just as an evidentiary and analytic tool, see Guinier & Torres, supra note 28.

n367. Cass Sunstein, in surveying the literature on the effects of engaging a diverse set of participants in deliberative processes, concludes that "when the underlying tasks are complex and call for a degree of creativity, dissenting views and a measure of conflict about how to perform those tasks lead to better outcomes." Sunstein, supra note 244, at 135 (citing Karen A. Jehn, A Multimethod Examination of the Benefits and Detriments of Intragroup Conflict, 40 Admin. Sci. Q. 256, 260 (1995)). Sunstein goes on to note that "diversity of information" is the "crucial variable" in generating "effective performance" of certain tasks, id. at 136, and that lack of diversity might "squelch the creativity" of the group. Id. (quoting Jehn, supra, at 260) (internal quotation mark omitted).

n368. See infra note 370. By fostering a variety of local outcomes, experimentation helps to "minimize error," "signals a reluctance to indulge in absolutes," and "acknowledges that our identities are multiple and complex." Gerken, supra note 108, at 42-43. The goal is to engage in long-term research and to promote the disciplined pooling of information from multiple local sources in order to establish expectations of what is possible and to ultimately scale up local innovations into regional or national reforms that coordinate, but do not control, best practices. The idea is not to develop an ultimate or universal solution, but to generate principles against which to evaluate particular initiatives, to reason back from those principles to develop particular practices, and to generate from those practices visions and goals. This form of learning borrows from the concept of benchmarking, but without adopting the goal of measuring institutional choices with uniform rules or formulas imposed from above. See Gordon, supra note 332, at 45 (citing Susan Sturm's analysis of participatory decisionmaking in the workplace and Archon Fung's "street level democracy" in the context of school reform and community policing); id. at 4 ("Rather than assigning to government the sole responsibility for establishing and enforcing strict rights, the new governance model asks the state to facilitate and finance local experimentation with solutions to complex problems, and then to evaluate and compare the outcomes of the resulting innovations."); cf. Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267, 287 & n.64 (1998).

n369. Transparency allows the educational judgments of institutional actors and experts, as well as the judgments of local community supporters, to influence the admissions choices being made. It also allows the public to understand those

choices. As part of this process, community business and political leaders, administrators, faculty, and students might deliberate, investigate, and experiment with locally imagined ways to develop allocative principles, while keeping race in view. Cf. Sturm, supra note 46, at 280-83 (describing a process of problem solving, innovative collaboration, and continuous information gathering); Sturm & Guinier, supra note 79, at 1026 (stating that race "can serve as a continual check or constraint on decision makers' impulse to revert to one-size-fits-all approaches to selection"); id. at 1028 (noting that "ignoring patterns of racial exclusion causes these patterns to recur and dominate"). Such interaction may then lead universities to adopt flexible practices that serve not only the academic and democratic missions of higher education, but also the needs of the community. See Dorf & Sabel, supra note 368, at 283-84 (discussing a new form of governance in which power is decentralized, enabling citizens to use their local knowledge to find innovative solutions to their circumstances, and in which coordinating bodies at the regional and national levels share this collective knowledge with others facing similar situations); supra Part II (describing three alternative conceptions of mobility); see also infra Part V (describing local experiments that engage this conversation). For a description of admissions standards that would ultimately "involve a more wide-ranging, normative revision in the notion of the university's social role and proper function," see Sullivan, supra note 16, at 1043.

n370. Sturm, supra note 46, at 325 (internal quotation marks omitted). Grutter combines an insistence on a continuous process of self-reflection through review of narrowly tailored alternatives, with an end date that catalyzes experimentation, periodic feedback, information sharing, and more robust accountability. In other words, the presence of an end goal, however cryptic, might be a reason to characterize the opinion as explicitly experimentalist. Cf. Gordon, supra note 332, at 4, 70 (identifying experimentation as a key value of the new governance model of democratic problem solving).

n371. Such research permits universities to share the results of their experiences with other institutions and to reflect on the effects of their choices over time. It also enables them to heed the Court's admonition to review continuously whether their admissions processes are narrowly tailored to their public and educational goals. Cf. supra notes 362, 368, 369; infra note 375.

n372. See, e.g., Lt. Col. (Ret.) Michael Lee Lanning, The African-American Soldier: From Crispus Attucks to Colin Powell 214 (1997) (noting that blacks who sought to take advantage of the educational benefits offered by the GI Bill found that most colleges refused to admit them, and that blacks similarly could not take

full advantage of GI mortgages because of segregated housing); David H. Onkst, "First a Negro ... Incidentally a Veteran": Black World War Two Veterans and the G.I. Bill of Rights in the Deep South, 1944-1948, 31 J. Soc. Hist. 517 (1998) (documenting the inability of black World War II veterans in the Deep South to obtain any of the GI Bill's four major entitlements).

n373. An institution dedicated to linking the concept of democratic merit to its educational and public missions, including a commitment to racial diversity, would regularly review and seek feedback on its admissions program and public agenda, guided by several sets of questions: <PARA'0 pt'0 pt'0 pt'>First, does the institution award opportunity broadly, or is diversity an add-on that is reflected only at the margins of the student body? Does the institution's student body reflect the interdependence of race, class, and geography in its existing and potential applicant pool? Does the institution recruit, admit, and provide financial support for students who demonstrate potential for academic achievement and public service based on a broad range of relevant measures? <PARA'0 pt'0 pt'0 pt'>Second, does a diverse group of stakeholders help to formulate, implement, and give feedback on the institution's admissions criteria? Do the decisions of these stakeholders support the institution as a public place? <PARA'0 pt'0 pt'0 pt'>Third, do graduates contribute back to the institution and the society it serves? <PARA'0 pt'0 pt'0 pt'>Fourth, do the institution's administrators and faculty serve as models for the public leadership expected of its graduates? Does the institution, for example, deploy its full panoply of resources to improve local schools? Is it working to rebuild a national commitment to higher education as a societal, not just individual, resource? Are the institution's admissions processes, curriculum, pedagogy, classroom dynamics, and mentoring opportunities consistent with its public mission?

n374. See, e.g., Karen W. Arenson, What Would Teachers Do If They Had the Chance? This, N.Y. Times, Sept. 17, 2003, at A26 (describing how Columbia University opened a new primary school in its neighborhood and designed the enrollment program with the help of community leaders who had previously criticized Columbia but who are now "thrilled"); Bollinger, supra note 20; see also Mark Levine, Ivy Envy, N.Y. Times, June 8, 2003, 6 (Magazine), at 76 (profiling John Sexton, the President of NYU, and highlighting the proactive role he has played in transforming NYU's institutional identity to emphasize the role of faculty as intellectually energetic and committed members of a community connected by a sense of shared duty to students and social usefulness).

n375. Pamela Karlan's analysis of the similarities between redistricting and admissions processes suggests that it is crucial for universities to share their

experiences with one another. See Karlan, supra note 345, at 1601. A court's reaction to one university's actions can affect the options of all other universities in the same federal circuit: for example, Hopwood did not foreclose just UT Austin's affirmative action policy. Nevertheless, universities need to adopt admissions criteria that make sense with respect to their own specific circumstance. Cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 506, 510-11 (1989) ("The random inclusion of racial groups that, as a practical matter, may never have suffered from discrimination in the construction industry in Richmond suggests that perhaps the city's purpose was not in fact to remedy past discrimination." (emphasis added)).

n376. Winter, supra note 332 (quoting Robert A. Bernheimer, mayor of Indian Wells) (internal quotation marks omitted).

n377. Id.

n378. Id.

n379. Id.

n380. Elizabeth Mehren, University's "Leap of Faith" Becomes Lesson in Community, L.A. Times, Mar. 16, 2003, at A1.

n381. Id. (quoting Jack Foley, executive assistant to Clark University President John Bassett) (internal quotation marks omitted).

n382. Id. (quoting Tom Del Prete, director of Clark's Hiatt Center for Urban Education) (internal quotation marks omitted).

n383. Id. (quoting Del Prete) (internal quotation marks omitted).

n384. Id. (quoting Del Prete) (internal quotation marks omitted).

n385. Id.

n386. Id.

n387. Id. (quoting Rodrigues) (internal quotation marks omitted).

n388. Id. ("The prospect of replicating the University Park example elsewhere in the city recently helped Worcester land an $ 8-million grant from the Carnegie Corp... . These students can help generate grants and government assistance for Clark, [the University President] said, calling the generosity well worth the price.").

n389. See id.

n390. Id. (quoting Raynor) (internal quotation marks omitted).

n391. Local communities matter for many reasons. First, taxpayers directly subsidize the public institutions in their communities and indirectly subsidize private institutions through breaks such as property tax abatements, which adversely affect the resources available for public services. Cf. Gerald E. Frug, City Making: Building Communities Without Building Walls 147-48 (1999) (discussing the negative effects of tax increment financing followed by offers of tax abatement). Moreover, if universities wish to continue enjoying the autonomy that the Court affirmed based on their important role in training democratic citizens, they must seek to be good neighbors. In other words, universities, both public and private, have obligations to the communities of which they are a part. The story of Clark University provides an example of how one university sought to meet such obligations. In addition to creating reciprocal obligations, which have

real territorial aspects, local communities function as a placeholder for the concept of experimentation. Localism is one way of assuring that institutions pursue, or at least consider, multiple approaches to their democratic and educational roles. In addition, pooling and sharing information among local communities is an important means of encouraging more local experiments. See supra note 368.

n392. Gordon, supra note 332, at 5 (citing Charles Sabel et al., Beyond Backyard Environmentalism, Boston Rev., Oct.-Nov. 1999, at 4, available at http://bostonreview.mit.edu/BR24.5/ sabel.html). Many communities in the United States have experimented with "citizen juries," in which a small number of individuals, usually representing a diverse group, gather to consider a question of public policy. The juries are usually moderated by trained facilitators, and jury members hear testimony and can question witnesses. See, e.g., Jon Glass, Citizen's Challenge, Virginian-Pilot (Norfolk), Mar. 5, 1996, at B1 (describing juries of more than 200 parents, educators, business people, and retirees that convened to deliberate on the failures and successes of the region's public schools); see also id. ("The key, the groups decided, is to forge strong partnerships between the schools and the community, enabling educators to draw on the wealth of resources available from all segments of society.").

n393. Glass, supra note 392.

n394. See supra pp. 202-04 (describing racial literacy as a diagnostic tool).

n395. See supra note 327. The Court in Grutter did not question the fundamental constitutionality of "percentage plans." See Grutter, 123 S. Ct. at 2345; see also Sullivan, supra note 16, at 1052-54. In Gratz, Justice Souter suggested that such plans were not unconstitutional. Gratz, 123 S. Ct. at 2442 (Souter, J., dissenting).

n396. The TTP has been confused with other percentage plans that were imposed from above and that have not evolved through a democratic process of reflective experimentation. Gerald Torres addresses this confusion: Critics of the "10% Plan" often lump it with the California and especially the

Florida plans and frequently mischaracterize it as an assault on affirmative action. That may be true in California and Florida, but in Texas the legislation was created by African-American and Latino legislators. These legislators were historically the principal advocates of racial, ethnic, economic and geographic diversity. They were joined by far seeing rural white conservatives who saw in the 10% plan a chance to enroll a robustly diverse class at the flagship universities of the University of Texas at Austin and Texas A&M. Torres, supra note 198 (manuscript at 7). <PARA'0 pt'0 pt'0 pt'>The TTP is certainly not a panacea for all state institutions and has not been applied to The University of Texas Law School, which recruits nationally. Indeed, this limited application of the TTP both results from and demonstrates the importance of local context inherent in the dual values of a commitment to structural mobility and a process that is racially literate, democratic, and self-reflective.

n397. 1988 Ill. Legis. Serv. 85-1418 (West) (codified as amended at 105 Ill. Comp. Stat. Ann. 5/34-1.1 to -2.4b (West 2003)).

n398. See 105 Ill. Comp. Stat. Ann. 5/34-2.3b. In 1995, the state expanded the law to provide for mandatory training of LSC representatives and to revise the election procedures. The original statute had not provided for training, but community groups filled in the gaps by developing training programs for LSC members who sought them out. Archon Fung, Deliberative Democracy, Chicago Style: Grass-Roots Governance in Policing and Public Education, in Deepening Democracy: Institutional Innovations in Empowered Participatory Governance 111, 120 (Archon Fung & Erik Olin Wright eds., 2003).

n399. Archon Fung, Accountable Autonomy: Toward Empowered Deliberation in Chicago Schools and Policing, 29 Pol. & Soc'y 73, 75 (2001). Although the LSCs are "autonomous in the sense that they set and implement ... the specific ends and means toward broad public aims," they are not left "to their own devices." Id. Central offices support the LSCs by providing training and resources; they "also monitor the deliberative processes and performance outcomes of local groups." Id.; see also Fung, supra note 398, at 126 (noting that LSCs "remain dependent on central offices for various kinds of support and accountable to these offices for both process integrity and performance outcomes").

n400. Fung, supra note 399, at 75.

n401. Id. at 78. This opportunity feeds the notion of empowerment - that participation will directly affect public policy. Indeed, community members stay involved over a long period of time with no observed drop-off in participation. Although participation levels were not particularly high, individuals from poorer school districts were as likely or more likely to participate as those from wealthier districts, and there has been little downturn in participation in the years since LSCs were implemented. Id. at 88-89.

n402. Id. at 91-92. Within individual neighborhoods, however, there is relatively higher participation by the wealthier members. Moreover, success is haphazard: some LSCs function quite well, while others are apathetic or frozen by dissension. Id. at 92, 94-96.

n403. Although lotteries may seem too arbitrary, they are already used to apportion high-stakes opportunities. See, e.g., Arenson, supra note 374 (describing Columbia University's use of a lottery to admit students from the neighborhood, which includes Harlem, to a new elementary school that it opened for the children of its faculty); Katie Zezima, Hard Work Opens College Door for Whole Class, N.Y. Times, June 4, 2003, at B8 (describing how a lottery was used to determine admission to the public high school that Clark University adopted, and noting that the only entrance requirement was residence in the neighborhood); U.S. Department of State, The Bureau of Consular Affairs, Instructions for the 2004 Diversity Immigrant Visa Program (DV-2004), at http://travel.state.gov/DV2004.html (last visited Oct. 11, 2003) (allocating 50,000 permanent residence visas each year via lottery to people with at least a high school education from countries with low rates of immigration to the United States). The very arbitrariness of lotteries can also communicate a public service message: the winners have not "earned" the right to higher education, and the losers have not been shut out because they are unqualified. Instead, winners and losers should collectively advocate for the resources to make educational opportunity widely available. But see Carnevale & Rose, supra note 2, at 27 (noting public disapproval of lotteries that might give university slots to students with lower scores or high school achievement levels than the students who would otherwise fill those slots).

n404. For a discussion of the dangers indifference poses to the redistricting process, see Earl Blumenauer & Jim Leach, Redistricting, a Bipartisan Sport, N.Y. Times, July 8, 2003, at A27.

n405. See Jay Mathews, The 100 Best High Schools in America, Newsweek, June 2, 2003, at 49, 51, 53; see also Janet Vandenabeele, International Academy Works To Prove Its Worth, Detroit News, Mar. 28, 2003, at 4D ("It's not a bunch of gifted kids. It's a bunch of average kids pushed to do well." (quoting an Academy parent) (internal quotation marks omitted)).

n406. The use of "wild cards" in admissions may well yield unexpected benefits. The infusion of at least some unpredictability into the system can provide additional data for the university as it continuously reassesses its admissions system. It may also help the university to destabilize its preference for qualities that have historically characterized its "ideal" candidates. See Sturm & Guinier, supra note 79; cf. supra note 351 (discussing the weak fit between signals and skills).

n407. See, e.g., James Traub, The Class of Prop. 209, N.Y. Times, May 2, 1999, 6 (Magazine), at 44, 46 (noting the proliferation of outreach programs designed to "expand the pool of eligible minority students" following the passage of Proposition 209 in California).

n408. See, e.g., Karen W. Arenson, Turn Around and You're in College, N.Y. Times, Mar. 24, 2003, at D1 (describing a university-high school collaboration in which twelve New York City high schools are located on campuses of the City University of New York); id. ("The students we are serving do not have the same backgrounds as many American kids ... . But if you teach them, they perform well." (quoting Dr. Michele Cataldi, principal of Hostos Lincoln Academy)).

n409. Harold S. Wechsler, Access to Success in the Urban High School: The Middle College Movement 1 (2001).

n410. See Arenson, supra note 408.

n411. See, e.g., University of California at Berkeley, School/University

Partnerships, at http:// students.berkeley.edu/outreach/sup/programs.htm (last updated Apr. 14, 2003) (listing and explaining various outreach activities with different schools); University of California, Campus-Based College Preparation and Outreach Programs, at http://www.universityofcalifornia.edu/college prep/campuseo.html (last updated Sept. 9, 2003) (listing outreach activities at all of the UC campuses).

n412. According to Pamela Clute, the math professor appointed to run the Riverside program, outreach used to mean, "until about a year ago, ... fuzzy, feel-good stuff - come to the campus on Saturday, see the buildings, look at the daffodils. Now it's taken on a life of its own, and it's been put at the core of the University's existence." Traub, supra note 407 (quoting Clute) (internal quotation marks omitted); see also id. ("Clute says that by placing the program under the control of a scholar like herself, the chancellor is sending a signal to her colleagues that outreach is an academic - not merely a public relations - function of the university. There has been discussion of weighing community services more heavily when considering promotions and merit raises.").

n413. For the last twelve years, the head of Riverside's writing program has reached out into the communities that Riverside serves: "Last year, [John Briggs, the head of the writing program,] and 10 of his tenured faculty members visited 90 to 100 classrooms, and talked to 3,000 kids. "What affirmative action is supposed to be about,' Briggs says, "is making a concerted effort to increase the pool of available students, and that means better preparation and better counseling.'" Id.

n414. See id. ("What is striking ... is the extent to which Riverside, a far more humble and pragmatic institution [than Berkeley], has begun to reshape itself around the mission of expanding the pool of eligible minority students."). For further discussion of creative solutions to increase diversity at California universities, see Daniel Golden, Case Study: Schools Find Ways To Achieve Diversity Without Key Tool, Wall St. J., June 20, 2003, at A1.

n415. See Torres, supra note 198 (manuscript at 12); see also supra note 212 and accompanying text; Press Release, Princeton University, Study: Texas "10 Percent Plan' Fails To Sustain Diversity at Flagship Universities (Jan. 23, 2003), http://www.princeton.edu/pr/news/03/q1/0123-tienda.htm ("The decline in minority admissions was less drastic at UT-Austin due to an aggressive outreach plan, the UT Longhorn Scholars program, which recruited students from high

schools with relatively large economically disadvantaged and minority student bodies. Texas A&M recently implemented the Century Scholars program, modeled after the Longhorn Scholars, hoping to restore its campus diversity to pre-Hopwood levels.").

n416. See Torres, supra note 198 (manuscript at 11).

n417. See Arenson, supra note 374.

n418. See id.

n419. Id. (quoting Bollinger).

n420. Grutter, 123 S. Ct. at 2346.

n421. See supra pp. 214-15.

n422. See Grutter, 123 S. Ct. at 2346 ("The States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear." (alteration in original) (quoting United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring)) (internal quotation marks omitted)); New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

n423. See Fish, supra note 333 (describing and criticizing Republican efforts in Congress to develop legislation to punish public universities that raise tuition to meet budget shortfalls); see also supra p. 203.

n424. Indeed, Justice O'Connor in Grutter seems to call on universities to link merit with racial considerations in an approach that is both highly individualized and flexible. In citing the strengths of the Law School admissions policy, she noted that "the hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants' talents, experiences, and potential to contribute to the learning of those around them." Grutter, 123 S. Ct. at 2331 (emphasis added) (internal quotation marks omitted). An approach that connects race with merit would not only satisfy Justice O'Connor, but would also avoid Justice Thomas's criticism regarding stereotyping and stigma because it would be neither overinclusive nor exceptionalizing.