The U.S. Supreme Court hardly ended the debate over race-conscious college admissions policies in its two landmark rulings last week involving the University of Michigan at Ann Arbor. But the court did answer the big question before it—whether the Constitution permits such policies—with a resounding yes. Its decisions may leave some colleges open to lawsuits challenging the nuts and bolts of particular admissions policies, but the general practice of using affirmative action to enroll a diverse student body appears likely to remain unassailable in the federal courts for many years to come.
“I think that affirmative action is on a firmer footing today,” said Theodore M. Shaw, who, as associate director of the NAACP Legal Defense and Educational Fund, had helped defend Michigan’s policies in briefs submitted to the Supreme Court.
Similar assessments were offered last week by many experts on civil-rights and higher-education law, including some who had been highly critical of affirmative action.
“The Supreme Court’s decisions mean that these issues will have to be fought out school by school and state by state, and we are prepared to do that,” said Roger B. Clegg, general counsel at the Center for Equal Opportunity, a group that opposes race-conscious admissions policies.
The two cases before the court were Grutter v. Bollinger, involving the admissions policy of Michigan’s law school, and Gratz v. Bollinger, involving the admissions policy of the university’s undergraduate College of Literature, Science, and the Arts.
Last week’s rulings marked the first time that the Supreme Court had waded into the controversy over affirmative action in college admissions in a quarter century—a period in which deep divisions emerged among lower courts over whether colleges could legally use some types of race-conscious admissions policies to promote diversity on their campuses. Federal circuit courts of appeals had struck down such policies in cases involving the University of Texas law school and the University of Georgia, but let similar policies stand in decisions involving Michigan and the University of Washington at Seattle. Among those who had asked the Supreme Court to take up the Michigan cases were several states’ attorneys general, who said they hoped that the court could clarify the law.
In the Grutter case, the justices upheld the Michigan law school’s admissions policies by a 5-to-4 vote, with the majority strongly endorsing the idea that the law school had a compelling interest in enrolling a racially and ethnically diverse student body because of the educational benefits that such diversity provides.
Writing for the majority, Justice Sandra Day O’Connor, the swing vote in the case, said that “attaining a diverse student body is at the heart of the Law School’s proper institutional mission,” and that the law school’s race-conscious admissions policy was an appropriate means of achieving that goal.
Noting that “universities, and in particular, law schools, represent the training ground for a large number of our nation’s leaders,” she said that society as a whole has a stake in diversity on campuses: “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”
In the Gratz case, the court ruled 6 to 3 against Michigan’s undergraduate admissions policy, but only because the majority of justices believed that the university put too much emphasis on race in evaluating applicants according to a point system that automatically gave substantial bonuses to members of certain minority groups.
Writing for the Gratz majority, Chief Justice William H. Rehnquist said that the policy treated whole groups of applicants differently based solely on their race, and therefore “is not narrowly tailored to achieve the interest in educational diversity” that the university claimed as its justification. As a result, he said, the policy violates the Constitution’s Equal Protection Clause and Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by any institution, public or private, that receives federal funds.
Colleges Get Leeway
Despite the justices’ rejection of Michigan’s undergraduate admissions policy, many supporters of affirmative action had little but praise for the Supreme Court rulings.
“It is a huge victory,” said Marvin Krislov, Michigan’s general counsel. “Affirmative action is still alive.”
Michigan’s president, Mary Sue Coleman, said she was confident that the university would come up with a new undergraduate admissions system that complies with the Gratz ruling and yet “continues our commitment to a richly diverse student body.” She said she expected to have such a policy in place for applicants seeking admission for the fall of 2004.
The leaders of 29 major higher-education associations—including the American Council on Education, the American Association of University Professors, the American Association of State Colleges and Universities, and the National Association of Independent Colleges and Universities—jointly issued a statement welcoming the rulings. “In both cases, the court not only upheld racial and ethnic diversity as a compelling state interest, but also reaffirmed the importance of giving colleges and universities leeway in the admissions process,” it said.
Barmak Nassirian, a policy analyst for the American Association of Collegiate Registrars and Admissions Officers, said the controversy over affirmative action had had a “chilling effect” on colleges’ efforts to enroll more minority students. With last week’s rulings, colleges’ “wait-and-see attitude ... is now settled in favor of doing more, rather than less, when it comes to the promotion of diversity.”
Critics of affirmative action were divided in their assessment of the court’s decisions.
Terence J. Pell, president of the Center for Individual Rights, which represented the plaintiffs in the two lawsuits against Michigan, said the court’s “mixed verdict is ultimately bad news for those who would uphold preferences. It is just another in a long series of verdicts that are whittling away at the logic of race-based preferences.”
“Thanks to today’s mixed decisions, no university or college in America can discriminate on the basis of race and have certainty that they are on the right side of the law,” he said.
But Edward J. Blum, director of legal affairs for the American Civil Rights Institute, a Sacramento-based group that opposes racial preferences, said, “There is no way to put a happy face on this outcome.”
“Where we were hopeful that we could take one step closer to ending the use of race in public policy, we have, in actuality, taken two steps back,” he said. “This opens the door to more preferences, and to, frankly, greater animosity and bitterness between those students who won’t get preferences and those who will.”
Scholarship and academic-enrichment programs that are off-limits to students of certain races remain vulnerable to legal challenge, Mr. Blum argued. What’s more, he said, nothing in the Supreme Court’s decisions prevents the banning of race-conscious admissions policies through state ballot initiatives, state legislation, or acts of Congress. He predicted that much of the debate over affirmative action would shift from federal courts to the political arena.
More Power to Powell
The law-school decision arose from a suit filed by Barbara Grutter, a white woman rejected by the school in 1997. Her lawyers brought the case before the Supreme Court hoping to persuade the justices to overturn a May 2002 ruling by the U.S. Court of Appeals for the Sixth Circuit that upheld the law school’s admissions procedures as constitutional.
Among those urging the Supreme Court to take the case were lawyers representing several students who had intervened in the lawsuit to defend Michigan’s race-conscious admissions policies as necessary to remedy past and present racial discrimination. Although those lawyers agreed with the Sixth Circuit’s decision leaving Michigan’s policy intact, they argued that the appeals court had ignored evidence of racial discrimination by the university.
Last week’s decision upheld the Sixth Circuit’s ruling in favor of Michigan, as well as much of its rationale.
The lawsuit challenging Michigan’s undergraduate admissions policies was filed in 1997 in behalf of Jennifer Gratz and Patrick Hamacher, white applicants who had been rejected by the university.
Their lawyers had appealed the case to the Sixth Circuit after U.S. District Court Judge Patrick J. Duggan ruled in Michigan’s favor in December 2000. The appeals court subsequently heard the law-school and undergraduate cases at the same time, but its judges became mired in a bitter internal feud in the course of deciding the law-school case. Those in the minority in that decision contended that those in the majority had manipulated court procedure to ensure a ruling in Michigan’s favor. The Supreme Court took the unusual step of hearing the case without waiting for the appeals court’s ruling, and, last week, effectively overturned the district court’s decision.
The Supreme Court’s last major decision dealing with affirmative action in college admissions was its landmark 1978 ruling, Regents of the University of California v. Bakke. In that case, the court struck down the use of quotas in college admissions. But an opinion written by Justice Lewis F. Powell Jr., and joined in part by a majority of the justices, held that colleges could give some consideration to race in an effort to attain a diverse student body.
Last week’s decision upholding Michigan’s law-school admissions policies sidestepped a long-running debate over whether Justice Powell had spoken for the court’s majority in Bakke. Justice O’Connor wrote that resolving the issue was unnecessary because the majority in the Michigan law-school case now “endorses Justice Powell’s view that student-body diversity is a compelling state interest in the context of university admissions.”
The majority in the law-school case cited several of the more than 60 amicus curiae, or “friend of the court,” briefs submitted in Michigan’s behalf by business groups, military leaders, colleges, and higher-education associations that support affirmative action in college admissions as necessary in a diverse society. The opinion also cited evidence of the educational benefits of race-conscious admissions policies submitted by Michigan and several outside experts, even though many of the findings submitted to the court were strongly criticized by other researchers in the field.
“Our decision today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits,” the Supreme Court majority’s opinion said.
As Mr. Blum of the American Civil Rights Institute put it, one result of the Grutter majority’s opinion is that “the thin reed of Justice Powell’s Bakke opinion has now been turned into a sturdy limb.”
Looking Out for Individuals
The Grutter majority said the Michigan law school’s efforts to maintain a “critical mass” of minority students did not amount to using an illegal quota, because the school did not have fixed numbers of students in mind. (The policy typically has resulted in combined black, Hispanic, and American Indian enrollments of 10 to 17 percent.)
“We find that the Law School’s admissions program bears the hallmarks of a narrowly tailored plan,” the majority opinion said. It described the law school’s admissions policy as providing a “holistic review” that is “flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes race or ethnicity the defining feature of the application.”
The majority rejected one of the key arguments that the Bush administration had made in a brief filed in opposition to Michigan’s case: that the university’s admissions policies were not narrowly tailored because Michigan had not adequately explored race-neutral alternatives.
“Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” the opinion said. Colleges should give workable alternatives “serious, good-faith consideration,” but Michigan’s law school appeared to have done so, the majority held.
Two alternatives suggested by a district-court judge who had ruled against the law school—either using a lottery system or placing less emphasis on undergraduate grades or Law School Admission Test scores—"would require a dramatic sacrifice of diversity, the academic quality of all admitted students, or both,” the decision said.
One of the key alternatives promoted by the Bush administration—"percentage plans” that guarantee college admission to students in a specified top portion of their high-school class—appeared impractical for graduate and professional schools, the opinion said.
“Moreover,” it added, “even assuming such plans are race-neutral, they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university.”
Legal analysts said it was unclear whether the opinion established a requirement that colleges consider race-neutral alternatives to affirmative action—and opinions on the matter differed.
President Bush issued a statement that said, “The court has made clear that colleges and universities must engage in a serious, good faith consideration of race-neutral alternatives.” A similar assessment was offered by U.S. Secretary of Education Roderick R. Paige.
But Sheldon E. Steinbach, vice president and general counsel of the American Council on Education, interpreted the majority’s opinion as offering no more than “a vague directive to schools to look at developing” such programs.
In one of the few passages of its opinion that clearly provided comfort to critics of affirmative action, the Grutter majority held that the law school’s consideration of race in admissions “must have a logical end point.” Noting that it was 25 years since the Bakke decision, the majority said, “We expect that, 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Joining Justice O’Connor in the opinion were four justices who have generally been supportive of affirmative action: Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter, and John Paul Stevens.
The dissenting opinions were submitted by Chief Justice Rehnquist, and Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas. In several cases, the dissenters signed on to each other’s opinions.
Justice Rehnquist’s opinion called the law-school admissions policy “a naked effort to achieve racial balancing.” Justice Thomas argued that the law school’s policy hurt black students who enroll there “only to find that they cannot succeed in the caldron of competition,” and he challenged the idea that the State of Michigan had a compelling interest in maintaining an elite law school with lower admissions standards for minority applicants. Justice Kennedy complained that the majority had failed to subject the law school’s admissions policies to strict scrutiny, as the Constitution requires.
Doomed by Points
The six-member majority that ruled against Michigan in the Gratz case consisted of Justices Breyer, Kennedy, O’Connor, Rehnquist, Scalia, and Thomas. The dissenters were Justices Ginsburg, Souter, and Stevens.
What appeared to doom the undergraduate admissions policy before the court was Michigan’s reliance on a point system that awards black, Hispanic, and American Indian applicants a 20-point bonus on its 150-point scale. To put that bonus in context, 20 points is the difference between what applicants would receive for a 4.0 grade-point average and what they would receive for a 3.0.
Writing for the Gratz majority, Chief Justice Rehnquist said that the admissions system did not provide enough individual consideration of applicants. Rejecting Michigan’s argument that it needed to use such a point system given the large number of undergraduate applications that it receives, the majority said that any administrative challenge posed by considering applicants on an individual basis “does not render constitutional an otherwise problematic system.”
An opinion issued by the three dissenting justices in the case argued that the majority opinion ignored the societal forces that had made Michigan’s admissions system necessary. “We are not far distant from an overtly discriminatory past,” the dissenters said, “and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools.”
Mr. Pell, of the Center for Individual Rights, responded to the Gratz ruling by saying “the days of race-normed grids, bonus-point systems, and separate admissions tracks are over for all schools, but they are especially over at the undergraduate colleges.”
Other legal experts, including several lawyers who represent colleges, acknowledged that the opinion left some higher-education institutions no choice but to hire more admissions officers and otherwise overhaul their admissions systems to give applicants individual consideration.
Martin Michaelson, a Washington lawyer who advises colleges on admissions programs, said, “It is going to take reflection and study to identify workable means for undergraduate institutions—particularly for those with very large student bodies” to conform with the court’s ruling.
As Christopher Edley Jr., a professor of law at Harvard University, warned, “institutions must be prepared to bear the expense to do it right.”
