Sandra Day O'Connor Revisits and Revives Affirmative-Action Controversy


Sandra Day O'Connor, the retired Supreme Court justice, has struck a raw nerve among critics of affirmative action in a new essay about her landmark 2003 decision in a case involving the U. of Michigan law school.
January 14, 2010

Having held in a landmark 2003 Supreme Court ruling that diverse college enrollments have proven educational benefits but that colleges should not need race-conscious admissions policies 25 years down the road, a retired associate justice — Sandra Day O'Connor — is now singing what some hear as a different tune.

In an essay written with Stewart J. Schwab, who had served as one of her Supreme Court clerks and is now dean of the Cornell Law School, Justice O'Connor argues that the majority opinion she wrote in the 2003 affirmative-action case should not be seen as imposing a deadline on the use of race-conscious policies or as relieving the need for more research showing such policies have educational benefits.

"When the time comes to reassess the constitutionality of considering race in higher-education admissions," the essay says, "we will need social scientists to clearly demonstrate the educational benefits of diverse student bodies, and to better understand the links between role models in one generation and aspirations and achievements of succeeding generations."

The essay, contained in the new book The Next 25 Years: Affirmative Action in Higher Education in the United States and South Africa, has struck a raw nerve among critics of affirmative action who were frustrated by the pivotal role Justice O'Connor played in preserving race-conscious admissions policies in the Supreme Court's 2003 Grutter v. Bollinger decision, involving the University of Michigan Law School. Seen as the court's swing vote on the affirmative-action issue, she ended up siding with its liberal wing in a 5-to-4 ruling holding that race-conscious admissions policies are constitutional because they serve the compelling state interest of promoting diversity and its associated educational benefits.

"I am glad she is no longer on the Supreme Court," said Roger B. Clegg, president of the Center for Equal Opportunity, which opposes racial and ethnic preferences and had submitted a friend-of-the-court brief on behalf of Barbara Grutter, the rejected white applicant to Michigan's law school who was the plaintiff in the case.

Justice O'Connor, Mr. Clegg said, "is not a social scientist by training, and the problem with her jurisprudence is that she would too often try to be a social scientist rather than a justice. She tried to make policy rather than interpret laws."

Terence J. Pell, president of the Center for Individual Rights, which provided legal assistance to Ms. Grutter, said, "I think the fact Justice O'Connor is doing this reflects the fundamental weakness of the opinion she offered: It failed to offer a principled basis for limiting — or even judging the effectiveness of — these practices."

'Everyone's Worst Fears'

In her majority opinion in the Grutter case, Justice O'Connor wrote: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." That sentence was widely regarded as a prediction that the Supreme Court would be less willing to give its blessing to race-conscious admissions policies a quarter century down the road, and as giving the nation's educational institutions an informal deadline for finding alternatives to race-conscious admissions policies and closing race-linked gaps in educational achievement.

In a speech delivered in 2007, a year after her retirement, Justice O'Connor herself had said the Grutter majority "had tried to be careful in stressing that affirmative action should be a temporary bandage rather than a permanent cure."

In her new essay, Justice O'Connor says, "That 25-year expectation is, of course, far from binding on any justices who may be responsible for entertaining a challenge to an affirmative-action program in 2028." The task before those justices will be the same as the task before others who previously took up the issue, "applying abstract constitutional principles to concrete educational endeavors."

Mr. Pell of the Center for Individual Rights said Justice O'Connor's essay reflects "a significant change of posture" from the Grutter decision's language. "What I found surprising was the extent to which the authors confirmed everyone's worst fears about this 25-year limit — namely, that is not a limit at all, but rather an opening bid in an effort to justify the use of race preferences in perpetuity."

Mr. Clegg of the Center for Equal Opportunity said Ms. O'Connor's essay does not speak for the other justices who signed on to her opinion. "She cannot change the meaning of the word 'expectation' by her own fiat after she has left the court," he said.

But John Payton, who headed up the team of lawyers defending Michigan's policies and now serves as president of the NAACP Legal Defense and Educational Fund, said he did not see any discrepancy between Justice O'Connor's Grutter opinion and her essay. The 25-year expectation offered in the opinion was "a prognostication" and "not intended to be a holding" of the court, he said.

Studies by 'Scholars of All Stripes'

Elsewhere in her Grutter decision, Justice O'Connor cited research on the educational benefits of diversity offered by Michigan's lawyers and in friend-of-the-court briefs submitted on Michigan's behalf, calling such benefits "substantial" and "not theoretical but real."

The essay she wrote with Dean Schwab similarly argues that campus diversity provides several educational benefits. But it then says: "We hesitate to cite scholarly work to back our speculations in this part. Certainly useful studies have already been conducted on the benefits from diverse student bodies, but in our view more needs to be done."

While acknowledging that studies of diversity "are fraught with political implications" and "many fear that the results of any particular study will be manipulated," the essay says the response to such fears "should be a call for more studies by scholars of all stripes."

The essay speaks approvingly of research by Robert D. Putnam, a professor of public policy at Harvard University, who has found that ethnically diverse neighborhoods tend to have less trust and cooperation. "The importance of the topic should not prevent us from asking questions whose answers might disappoint us," the essay says.

Mr. Pell said he found it "a little startling for the justice who authored the majority opinion to now be so candid that these studies were weak and the court's opinion was speculative." Mr. Clegg said, "She seems to think that social science can give definitive answers, and of course it cannot. Social science is so malleable and so political that you can find social scientists who will give you whatever answer you like."

Mr. Payton of the NAACP Legal Defense and Educational Fund interpreted the essay mainly as a call for social scientists to better defend educational diversity in the political arena, to counter efforts to curtail affirmative action through legislation and referenda. Nonetheless, he said, given the challenges and limits of research involving people, it may be impossible for social scientists to construct an unassailable study measuring diversity's impact on education. "At some point you cannot do much more research," he said.

In her 2007 speech, Justice O'Connor lamented that the nation was not making more progress in remedying the gaps between the races in achievement in elementary and secondary schools. Much of her new essay is devoted to calls to improve public schools and to find ways to overcome cultural impediments to academic achievement. It says that "unless substantial progress is made, higher education will continue to face the dilemma of choosing between educational achievement and diversity."

The book containing Justice O'Connor's essay was published by the University of Michigan Press and edited by David L. Featherman, a professor of sociology and psychology at the University of Michigan; Martin Hall, a former deputy vice chancellor of the University of Cape Town; and Marvin Krislov, president of Oberlin College, who served as the University of Michigan's general counsel while the Supreme Court battle over its admissions policies was being fought. Among those contributing chapters are several key players in the defense of Michigan's policies, including the university's president, Mary Sue Coleman; its former provost, Nancy Cantor; and several social scientists who produced diversity research cited by the university's lawyers.