The U.S. Supreme Court’s agreement last week to take up the legality of race-based admissions in higher education sets the stage for a ruling on affirmative action that is likely to reverberate throughout precollegiate schools as well.
Race-conscious policies in education have been the focus of considerable ferment over the past decade. Universities in several states have been barred from using racial preferences in admissions, either because of state policies and ballot initiatives in states such as California and Washington or because of the 1996 federal appellate ruling known as Hopwood v. Texas.
But several other federal courts have concluded in recent years that the Supreme Court’s 1978 ruling in Regents of the University of California v. Bakke, which struck down racial quotas but permitted the consideration of race as one factor in admissions, is still the law of the land.
Now, the high court is ready to re-enter the fray. On Dec. 2, the justices accepted two appeals involving admissions criteria at the University of Michigan, located in Ann Arbor. The first, Grutter v. Bollinger (Case No. 02-241), involves Michigan Law School policies designed to boost the enrollment of what the school considers underrepresented minority groups: African-Americans, Hispanics, and Native Americans.
A Bonus System
The second case, Gratz v. Bollinger (No. 02- 516), involves admissions to the university’s main undergraduate program, the college of literature, science, and the arts. That school’s policy gives members of the same minority groups a bonus of 20 points on a 150-point admissions scale. The boost can be significant on a scale in which high school grades and test scores count for as much as 92 points, in-state residency counts for 10 points, and alumni relationships add 4 points, among other categories.
The university does not consider students of Asian or Arab background underrepresented or historical victims of discrimination.
Both under Michigan’s former president, Lee Bollinger, now the president of Columbia University, and its current president, Mary Sue Coleman, the university has staked its defense of affirmative action on the argument that policies designed to promote racial diversity on campus meet the highest legal tests for evaluating race-conscious government action.
“There is no effective substitute for the consideration of race as one of many factors in our admissions process,” Ms. Coleman said in a statement last week. “Other methods do not allow us to recruit a diverse student body while maintaining our consistently high academic standards.”
The university presented empirical evidence in the trials over the two admissions policies that racial and ethnic diversity has educational benefits. It also enlisted General Motors Corp. and other major corporations, as well as labor unions, civil rights organizations, and education groups to file briefs in support of its programs in the lower federal courts.
“Our cases are widely viewed as the strongest possible cases for the court to consider on affirmative action in university admissions,” said Marvin Krislov, the university’s general counsel.
But opponents of racial preferences believe that the tide has been on their side, and that the Supreme Court is prepared to outlaw the consideration of race in education except as a remedy for past discrimination.
“At the most fundamental level, the question [this case] raises is whether our nation’s principles of equal protection and nondiscrimination mean the same thing for all races,” says the brief of the Center for Individual Rights, which sued Michigan in 1997 on behalf of one white applicant rejected by the law school and two white applicants rejected by the undergraduate program.
Barbara Grutter was 43 when she applied to the Michigan Law School in 1996. She had a 3.8 undergraduate grade point average and a Law School Admission Test score that put her in the 86th percentile nationally. She was rejected for admission to the law school, which is one of the nation’s most selective. School officials acknowledged in the course of the lawsuit that Ms. Grutter probably would have been admitted if she were a member of one of the underrepresented minority groups.
Jennifer Gratz and Patrick Hamacher brought the undergraduate case. Ms. Gratz applied for the fall 1995 entering class at the flagship Ann Arbor campus with a high school grade point average of 3.8 and an ACT score of 25 of a possible 36. She was at first put on a waiting list and later rejected. She graduated in 1999 from the University of Michigan-Dearborn.
Mr. Hamacher applied for the fall 1997 entering class in Ann Arbor with a 3.32 GPA and a 28 on the ACT. He was rejected and ended up graduating from Michigan State University last year.
Separate federal district judges in Detroit heard the law school and undergraduate cases. In 2000, a judge upheld the consideration of race in the undergraduate case. The judge in the law school case ruled the opposite way.
The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, heard arguments in both cases last December. In May, it ruled 5-4 in the law school case in favor of the university. The majority said that Justice Lewis F. Powell Jr.'s concurring opinion in Bakke established diversity as a compelling governmental interest that justified the use of racial preferences.
Without explanation, the 6th Circuit court did not rule on the undergraduate case at that time and has not ruled since. The Washington-based Center for Individual Rights, in addition to appealing the law school ruling under the Supreme Court’s normal procedures, filed a brief asking the high court to bypass the 6th Circuit and accept the undergraduate case as well to get a fuller picture of race- conscious admissions.
The justices did just that by accepting both appeals. The cases will be argued in March and a decision is expected by the end of the court’s term in late June.
K-12 Watching
While the outcome of the case will be of enormous significance to higher education, precollegiate educators also have been grappling with issues of affirmative action and race-conscious policies even where there are no court-mandated desegregation programs.
“What the court is going to do here in deciding whether diversity is a compelling governmental interest is potentially huge for K-12 purposes,” said Edwin C. Darden, a senior staff lawyer with the National School Boards Association. He said the NSBA would file a friend-of-the-court brief with the court emphasizing that racial diversity is an even more compelling goal for K-12 schools because of the age and impressionability of their students.
Among the race-conscious policies at the precollegiate level are the selection of students for magnet schools, voluntary efforts at racial balancing among all of a district’s schools, and goals involving faculty assignment that are designed to expose students to teachers of different races. Many of those policies have led to their own legal challenges.
Gary G. Kreep, the executive director of the U.S. Justice Foundation, a legal-advocacy group that has challenged several race-conscious policies in California public schools, agreed that the Michigan case is likely to have a big impact at all levels of education. He believes that many voluntary racial-assignment policies adopted by school districts amount to illegal racial quotas.
“The whole idea of assigning students to school by race,” he argued, “is anathema to our concept of equal protection in this country.”
