"Stifling the Potential of Grutter v. Bollinger: Parents Involved In Community School Districts v. Seattle School District No. 1"

Justice Sandra Day O’Connor surprised many when she found compelling a vision of racial diversity if it is integrationist, forward-looking, optimistic, democracy-reinforcing, and nonremedial. Her opinion in Grutter v. Bollinger had transformative potential both for affirmative action law and for our society more generally. In Grutter, Justice O’Connor applied a deferential form of strict scrutiny review to the government’s use of racial preferences which further the “common good.” This innovation immediately raised the following question: could the diversity rationale articulated in Grutter (and the concomitant relaxed application of strict scrutiny review) be extrapolated to other contexts where the Court had traditionally been more skeptical of the use of racial preferences? If so, Grutter was, at the very least, in tension with two pillars of affirmative action doctrine: Richmond v. Croson and Adarand v. Pena. And some lower federal courts did interpret Grutter broadly, which allowed those courts to sustain the government’s use of racial preferences where the application of a less deferential form of review would likely have led to their invalidation. This moment of expansive and unfettered possibility was not to last. Parents Involved in Community Schools v. Seattle School District No. 1, stifled Grutter’s expansive potential. Grutter’s potential was not entirely destroyed, however, because Justice Kennedy’s concurring opinion moderated Parents Involved in important respects. Because of Justice Kennedy, Grutter’s transformative potential – obscured but not extinguished – now waits for a more sympathetic Court to recognize it.