The U.S. Supreme Court, handing down what are perhaps its most significant decisions since 1978 on affirmative action in education, has upheld the consideration of race in higher education admissions as long as the process involves individualized review of applicants.
The justices on June 23 ruled 5-4 in favor of an affirmative action plan at the University of Michigan Law School that reviews each applicant’s file in pursuit of creating and preserving a “critical mass” of African-Americans, Hispanics, and Native Americans in the school’s student body. But the court ruled 6-3 to strike down racial preferences in the university’s undergraduate admissions program, which automatically awarded a significant point-scale advantage to minority applicants.
While the two rulings had a split-decision quality about them—Justice Antonin Scalia called them “a split double-header"—the supporters of racial preferences arguably had more reason to claim victory. The majority opinion by Justice Sandra Day O’Connor in the law school case strongly endorsed the diversity rationale for affirmative action enunciated 25 years ago by then-Justice Lewis F. Powell Jr. in Regents of the University of California v. Bakke.
“The educational benefits that diversity is designed to produce ... are substantial,” Justice O’Connor said in Grutter v. Bollinger (Case No. 02-241). “Numerous studies show that student-body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.”
But while she accepted diversity as a compelling interest that allows universities to consider race, she stressed that for programs to be upheld under the 14th Amendment’s guarantee of equal protection of the law, they must be based on individualized review of applicants, of the type used by the law school. And she said all race-conscious admissions programs should have a termination point. Noting that it had been 25 years since Justice Powell first approved of the use of race to foster diversity in education, Justice O’Connor’s opinion suggested that the logical end point for race preferences might be reached within another quarter-century.
“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” Justice O’Connor wrote.
Between the law school case and the undergraduate one, Gratz v. Bollinger (No. 02-516), all nine justices had something to say about affirmative action.
In a lengthy dissent in the law school case, Justice Clarence Thomas said, “I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”
Justice Scalia said the law school’s “mystical ‘critical-mass’ justification for its discrimination by race challenges even the most gullible mind.”
“Today’s Grutter-Gratz split double-header seems perversely designed to prolong the controversy and the litigation” over racial preferences in education, he added.
Winks and Nods
K-12 educators have been following the Michigan cases for their implications for the consideration of race in elementary and secondary schools. The court’s endorsement of the diversity rationale for racial preferences is significant for elementary and secondary education because schools at that level have cited the desirability of racial diversity as the justification for a wide variety of race-conscious programs.
In the Supreme Court chamber, Justice O’Connor read a summary of her opinion in the law school case, which immediately set a tone that affirmative action was not as dead as some conservative scholars and commentators had hoped and predicted. She was joined in her opinion by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer. Chief Justice William H. Rehnquist and Justices Scalia, Thomas, and Anthony M. Kennedy all filed dissenting opinions and joined one another’s opinions in varying degrees.
What was already a dramatic atmosphere grew even more so as Justice O’Connor finished her summary of the law school case and was followed by Chief Justice Rehnquist, who said he had the opinion in the undergraduate case to announce. With the chief justice a known opponent of racial preferences, a split verdict for the two cases appeared, and indeed was, assured.
At the undergraduate level, the University of Michigan awarded 20 points on a 150-point admissions scale to applicants who were black, Hispanic, or Native American-members of underrepresented minority groups in the university’s view.
The university’s point system “is not narrowly tailored to achieve the interest in educational diversity,” the chief justice said. Minority applicants receive the 20-point bonus merely because they indicate they are members of a covered group, a policy that “does not provide individualized consideration,” he added.
The chief justice was joined in his opinion by Justices O’Connor, Scalia, Kennedy, and Thomas. Justice Breyer joined in the outcome of the undergraduate case but did not sign the chief justice’s opinion. Justice O’Connor wrote a concurrence to say that unlike the law school policy, the undergraduate admissions system does not “provide a meaningful individualized review of applicants.”
Justices Stevens, Souter, and Ginsburg dissented on the undergraduate program. Justice Stevens said the case should have been dismissed because the white students who challenged the admissions program have long since enrolled in other colleges and so did not have proper legal standing. Justice Souter agreed with that point, but added that he would have upheld the undergraduate program.
Justice Ginsburg also said she would have upheld the undergraduate program, arguing that Michigan was merely forthright about the racial preferences it utilized, while some other institutions seek to enhance diversity “through winks, nods, and disguises.”
Outside the Supreme Court building, advocates on both sides of the affirmative action issue showed up as the decisions were being read in the chamber.
Maureen E. Mahoney, who appeared before the justices on behalf of the University of Michigan Law School in the April 1 oral arguments, said it was a day of victory because “it is now clear you can take race into account in admissions.”
Mary Sue Coleman, the university’s president, made the rounds of cable-television reporters parked on the sidewalk in front of the court. After speaking about the “careful balance” struck by the opinions, she walked past a group of three white affirmative-action opponents.
“President Coleman, what if you were rejected by the university simply because you where white?” one asked.
James Wilson, who said he graduated this year from Michigan’s undergraduate college, said he was disappointed because the high court “completely upheld Bakke. Colleges will just have policies that are never written down that claim to have individual review.”
Terrence J. Pell, the president of the Center for Individual Rights, the legal-advocacy organization that represented the rejected white applicants who challenged Michigan’s racial preferences, said colleges and universities would be wise to move toward more colorblind admissions policies.
“We’re hopeful schools will do the right thing,” Mr. Pell said in a conference call with reporters. “They have a choice. ... At the end of the day, it’s more of a burden for schools to use race than it was before.”
Mr. Pell also suggested that undergraduate institutions would have a hard time if they chose simply to trade admissions policies that assign points to students on the basis of race for more general programs of affirmative action aimed at promoting on-campus diversity.
“That’s not a realistic alternative, when you have thousands of applications to review individually,” said Mr. Pell. He later added, “It will be risky for schools to rely on a diversity rationale much longer, if at all.”
Staff Writer Sean Cavanagh contributed to this report.