Law & Courts

Affirmative Action Now Awaits Verdict

By Mark Walsh — April 09, 2003 7 min read
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A quarter-century after outlawing strict racial quotas in higher education, the U.S. Supreme Court heard powerful arguments last week on whether race can still be one factor among many that colleges use to achieve diversity in admissions.

University of Michigan graduate Tracy Clayton

University of Michigan graduate Tracy Clayton and thousands more have their say April 1 outside the Supreme Court.
—Photograph by Allison Shelley/Education Week

But comments by justices during the intense, two-hour session suggest it is unlikely the court is prepared to prohibit completely the consideration of race in helping attain a broad mix of students.

“You are speaking in absolutes, and it isn’t quite that,” Justice Sandra Day O’Connor said to Kirk O. Kolbo, the lawyer representing white applicants who challenged racial preferences in the University of Michigan’s law school and undergraduate program. “I think we have given recognition to the use of race in a variety of settings.”

But Justice Anthony M. Kennedy, who with Justice O’Connor is considered a potential swing vote in the case, was troubled by the admissions system in Michigan’s undergraduate college, which awards 20 points on a 150- point scale to African-American, Hispanic, and Native American applicants.

“It looks to me just like a disguised quota,” he told John Payton, a Washington-based lawyer who was defending the undergraduate program.

The two Michigan admissions cases, Grutter v. Bollinger and Gratz v. Bollinger (Case Nos. 02-241 and 02- 516), mark the court’s most extensive look at racial preferences in higher education since its landmark 1978 ruling in Regents of the University of California v. Bakke. That splintered decision struck down racial quotas, but held that race could be one factor among many considered in admissions.

Besides being of enormous significance to higher education, whatever the court decides in the cases is expected to have an impact on such elementary and secondary education issues as the consideration of race in magnet school assignments. (“Admissions Case Could Have Impact on K-12 Education,” Dec. 11, 2002.)

The Center for Individual Rights, a legal-advocacy organization based in Washington, sued the University of 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 rejected in 1996 by the Michigan Law School, one of the nation’s most selective. The school later conceded that Ms. Grutter probably would have been admitted if she were a member of one of the underrepresented minority groups that qualify for a boost under the policy.

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 out of a possible 36. She was rejected and ended up graduating from the University of Michigan-Dearborn in 1999.

Mr. Hamacher applied for the fall 1997 class in Ann Arbor with a 3.32 high school GPA and a 28 on the ACT. He was rejected and went to Michigan State University, where he graduated in 2001.

In 2000, a federal district judge in Detroit upheld the consideration of race in the undergraduate case. But a different judge ruled the opposite way in the law school case.

The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, heard arguments in both cases in 2001. In May of last year, it ruled 5-4 in the law school case in favor of the university. The majority said that the late Justice Lewis F. Powell Jr.'s controlling opinion in Bakke had established diversity as a compelling governmental interest that justified the use of racial preferences. The 6th Circuit court never ruled on the undergraduate case.

The Supreme Court agreed to review both cases.

An Admissions Ticket?

Listeners in the packed courtroom for the April 1 oral arguments included such luminaries as Sen. Edward M. Kennedy, D-Mass., and the Rev. Jesse L. Jackson. Outside, a crowd of more than 5,000 demonstrated for the Michigan policies, with a much smaller number of affirmative action opponents present. Supporters of the policies came by the busload from Michigan and elsewhere, and they began a three-mile march from the Supreme Court building to the Lincoln Memorial as the arguments continued.

Mr. Kolbo, a Minneapolis lawyer, argued the cases for the three rejected white applicants.

Jennifer Gratz speaks to the press after the oral arguments at the Supreme Court.

Jennifer Gratz, speaking to the press after the oral arguments at the Supreme Court, applied to the University of Michigan in 1995. She was rejected despite a 3.8 grade point average in high school and an ACT score of 25. She and two other plaintiffs sued to overturn the university’s use of race in deciding whom to admit.
—Photograph by Allison Shelley/Education Week

“The fundamental problem with the diversity rationale is that it depends on the standardless discretion of educators,” he said. The question of which minorities are underrepresented and which should benefit from racial preferences can change over time, he said, and are not anchored to constitutionally permissible justifications.

U.S. Solicitor General Theodore B. Olson, who also argued for the white applicants in both cases, attempted to walk the delicate line that the Bush administration’s friend-of-the-court brief drew on the issue.

“The University of Michigan admissions program has created a separate path and a separate door for preferred minority groups,” he said. The 20-point bonus for minority students applying to the undergraduate program “might as well be an admissions ticket,” he added, because if the minority-group members meet the university’s minimum qualifications, they will get in.

Earlier, in the law school segment of the argument, Mr. Olson said the Bush administration was “reluctant to say never” to consideration of race. He argued that race-neutral alternatives such as the “percentage plans” in place in California and Texas could help universities achieve the desired goal of diverse classes. (“Affirmative Action: Texas Alternative Gets Mixed Reviews,” March 26, 2003, and “Ed. Dept. Report Lists Alternatives to Race Use in College Admissions,” this issue.)

Justice David H. Souter asked whether such plans, which guarantee admission to state universities for a certain proportion of students from each high school in a state, “depend on the segregation of the schools” for any success in helping colleges achieve racial diversity.

“No, there is no evidence that it depends upon segregation of the schools in Texas or in any other place,” Mr. Olson said.

Justice Souter and Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer all expressed sympathy for the University of Michigan and for race-conscious policies. “We live in a world where ... 75 percent of black students below the college level are at schools that are more than 50 percent minority,” Justice Breyer told Mr. Kolbo. “Many people feel ... that the only way to break this cycle is to have a leadership that is diverse.”

‘Critical Mass’

When it came to Michigan’s arguments, both Mr. Payton, representing the undergraduate program, and Washington lawyer Maureen E. Mahoney, defending the law school, repeatedly sparred with conservative members of the court over the question of whether each program had specific numerical goals for minority admissions.

Lawyers Maureen E. Mahoney, left, and John Payton, center.

Lawyers Maureen E. Mahoney, left, and John Payton, center, who represented the University of Michigan before the Supreme Court on April 1, make their case to reporters after the argument.
—Photograph by Allison Shelley/Education Week

Justice Antonin Scalia pressed Ms. Mahoney on whether terms such as “sufficient number” and “critical mass” of underrepresented minorities sought by the law school were really just other names for quotas.

“Once you use a term like ‘critical mass,’ you’re really into Quota Land,” Justice Scalia said.

But a university’s diversity goals “can be related to a number without being a quota,” Ms. Mahoney said. She cited guidance from federal education officials issued in 1979, shortly after the Bakke decision, that said “numerical goals can be taken into account.”

“Well, certainly, they don’t interpret the Constitution,” Chief Justice William H. Rehnquist interjected.

Later, the chief justice pressed Mr. Payton on the meaning of “critical mass.”

“It’s a number where students feel comfortable as individuals,” the lawyer said. “If we did not take race into account, we would not be able to get the critical mass we want.”

Michigan is a “very segregated state” where white and minority young people have very little interaction before they enter college, Mr. Payton argued. Having a critical mass of minority students at the University of Michigan helps undergraduates get to know one another in dorms and coffeehouses, where they can break down racial stereotypes, he added.

Justice Clarence Thomas, who rarely asks questions during oral arguments, spoke up near the end of the two-hour session. He asked Mr. Payton if Michigan’s arguments about the importance of diversity also apply to historically black colleges, which the justice s said have traditionally “provided a different benefit to minorities.”

“I believe most every single one of them do have diverse student bodies,” Mr. Payton said, but his time ran out before he could explain further.

Decisions in the cases are expected by early July.


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