Sandra Day O’Connor, the retired associate justice of the U.S. Supreme Court and author of the majority opinion in a landmark 2003 decision upholding the legality of race-conscious college admissions, acknowledged in a speech today that she is not confident the court had preserved affirmative action in higher education for much longer.
Speaking at Washington’s National Press Club at a symposium on diversity at colleges, Justice O’Connor said, “The future of affirmative action in higher education today is certainly muddy.” As the basis for her observation, she cited Michigan voters’ adoption last fall of an amendment to that state’s Constitution banning affirmative-action preferences, as well as the passage of similar measures in California in 1996 and Washington State in 1998, and current efforts to place preference bans on several states’ ballots in 2008.
Justice O’Connor, who retired last year, said the court’s majority “had tried to be careful in stressing that affirmative action should be a temporary bandage rather than a permanent cure” in the 2003 opinion she wrote in Grutter v. Bollinger, involving the law school at the University of Michigan at Ann Arbor. In the long term, she said, “It probably would be better if we could remedy the racial gap in academic achievement long before application for college admission,” by finding ways to improve elementary and secondary schools enough that race-conscious admissions policies will no longer be necessary. “I think we are falling down in that area,” she said.
The retired justice observed that public colleges in Michigan are trying to find other ways to maintain racial and ethnic diversity in the absence of preferences — by, for example, considering whether applicants are socioeconomically disadvantaged. But, she said, “we don’t know whether programs like that are going to have an effect or not,” and it could well be that the efforts will also end up being challenged as discriminatory in the courts.
She said it was ironic that private colleges, which are not covered by state bans on preferences, may end up being more diverse in their enrollments than public colleges, which were established to provide broad educational access.
The symposium was held by the Washington and Lee University School of Law to commemorate the centennial of the birth of Justice Lewis F. Powell Jr., who first articulated the educational-diversity rationale for race-conscious admissions policies in the court’s other major ruling on college affirmative action, the Regents of the University of California v. Bakke decision of 1978. Justice O’Connor, who upheld Justice Powell’s Bakke opinion as the law of the land in her Grutter decision, choked back tears as she reminisced about how Justice Powell had been a mentor and close friend.
“I continue to miss him very much,” she said. —Peter Schmidt
