UNIVERSITY DONS AND WARRIOR CHIEFTAINS: TWO CONCEPTS OF DIVERSITY

Introduction By deciding in Grutter v. Bollinger 1 to "endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions," 2 the Supreme Court has ended one debate but invited another. The burning question whether Justice Powell's opinion in Regents of the University of California v. Bakke 3 is binding on the point 4 is now moot. Nor is it open to doubt that an affirmative-action policy with diversity as its end can survive strict scrutiny under the Equal Protection Clause. 5 But just how far the diversity rationale can justify race-based policies in educational and non-educational contexts is certain to be a focus of future cases and controversy. 6 This Essay proposes a framework for clarifying the diversity rationale in Grutter. The Court itself gave the first clue. It is not the mere fact of student body diversity that is the compelling interest, but rather "obtaining the educational benefits that flow from a diverse student body." 7 This formulation, however protean, does suggest a substantive doctrinal test when viewed in conjunction with the Grutter Court's analysis of the compelling interest in diversity. Such a "benefits" test would turn on three elements. A compelling state interest exists when the university (1) identifies "the educational benefits that [student body] diversity is designed to produce;" 8 (2) shows that attaining those benefits is "essential to its educational mission;" 9 and (3) makes a showing ...