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The Supreme Court

Saying Yes to Affirmative Action, Sometimes

When the Supreme Court ruled in 2003 on affirmative action, it actually ruled on two cases. One involved the University of Michigan's law school affirmative action policy, which it upheld by a vote of 5 to 4—Grutter v. Bollinger. The other involved the University of Michigan's undergraduate affirmative action policy, which was struck down by a vote of 6 to 3—Gratz v. Bollinger.

Supreme Sayings

The “nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation … [i]t is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,” that can justify using race. Rather, “[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”

—Former Supreme Court Justice Lewis Powell from the Bakke opinion

These were the first major rulings on affirmative action involving university admissions since the landmark Bakke case. That decision involved the admissions policy at the University of California Medical School, which at the time reserved 16 out of its 100 seats for members of certain minority groups. Six separate decisions came out of that case and none of them got a majority. Four justices upheld the program on the grounds that the government can use race to remedy disadvantages caused by past racial prejudices. Four justices believed the admissions program should be struck down completely. Justice Powell was the swing vote. He wrote the opinion for the court that invalidated the University of California program, but left the door open for affirmative action programs provided their purpose is to “attain a diverse student body.”

In both of the 2003 cases, the University argued its purpose was to attain a diverse student body. One program passed Supreme Court muster and the other did not. Let's look at each of these rulings and why the Court voted to allow one and not the other.

Constitutional Law School Admissions Policy—Grutter v. Bollinger

Barbara Grutter is a white woman who applied for admission to the University of Michigan law school in 1996 and was rejected. After investigating her rejection, she found that African Americans and other ethnic minority applicants who had lower overall admissions scores were accepted into the school in the same year.

The University of Michigan clearly states as part of its admissions policy that the highest possible score does not guarantee admission to the law school. Nor does a low score automatically disqualify an applicant. Instead, the admissions officials look beyond grades and test scores to other criteria that are considered important to the school's education objectives. These other variables include recommendations, quality of undergraduate institution, quality of applicant's essay, difficulty of undergraduate course selection, and other factors that help them to assess an “applicant's likely contributions to the intellectual and social life of the institution.”

Supreme Sayings

“So why were universities, public and private, so happy about the decision? Part of the answer is that back in say, 1995, it looked as if an irresistibly powerful anti-affirmative-action wave might be sweeping the country. The decision provides what looks like a guarantee that affirmative action in admissions is now safe for another generation. Having it in writing—writing that has the force of law—is always a relief.”

—Nicholas Lehmann in writing an analysis for The New York Times

The university states its policy aspires to “achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts.” The policy did, however, reaffirm the Law School's longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special preference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.”

Grutter believed this policy was illegal discrimination and filed suit against the university. Her suit was based on Bakke, which said that race and ethnicity could be taken into account, but quotas could not be used as part of an admissions policy. She believed the University of Michigan Law School affirmative action policy did use a quota system and therefore was unconstitutional.

The district court ruled in favor of Grutter, but the 6th Circuit Court of Appeals disagreed, so Grutter appealed to the Supreme Court. Since the Bakke decision was so convoluted and did not give universities a clear set of guidelines, the Supreme Court decided it was time to revisit the issue.

Living Laws

Universities can use affirmative action policies that consider race as long as it is done qualitatively along with other considerations to achieve diversity in the student body. A purely quantitative evaluation, as the point system used in the undergraduate program at the University of Michigan discussed here, is a violation of the equal protection clause and cannot be used.

In 2003, Sandra Day O'Connor was the swing vote in support of the University of Michigan's Law School admissions policy. She said she hoped that one day affirmative action would no longer be needed in America, but believed it was still needed today.

The Court is still closely divided on the issue. It is another one of those decisions for which you need a roadmap. Justice O'Connor wrote the opinion for the Court and was joined by Breyer, Ginsburg, Souter, and Stevens. Scalia and Thomas also joined part of this decision. Ginsburg filed a concurring opinion and was joined by Breyer. Scalia filed an opinion that partially concurred, but also dissented to part of the opinion. Thomas also filed an opinion that concurred in part and dissented in part. Scalia and Thomas joined parts of each others opinions. Chief Justice Rehnquist filed a dissenting opinion, which was joined by Kennedy, Scalia, and Thomas. Kennedy filed another dissenting opinion. So while universities were given a clearer set of guidelines by O'Connor, you can see the Court is still strongly divided on this issue.

In her opinion, O'Connor wrote:

  • “We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. … In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: 'The freedom of a university to make its own judgments as to education includes the selection of its student body.' From this premise, Justice Powell reasoned that by claiming 'the right to select those students who will contribute the most to the 'robust exchange of ideas,' a university 'seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission. … Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School's proper institutional mission, and that 'good faith' on the part of a university is 'presumed' absent 'a showing to the contrary.'”

In addition to commenting on the importance of student body diversity, O'Connor also talked about the important role universities have in training future leaders:

  • “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. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools 'cannot be effective in isolation from the individuals and institutions with which the law interacts.' … Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.”

In his dissent Justice Thomas strongly disagreed with these conclusions:

  • “It is uncontested that each year, the Law School admits a handful of blacks who would be admitted in the absence of racial discrimination … Who can differentiate between those who belong and those who do not? The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the 'beneficiaries' of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed 'otherwise unqualified,' or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination. Is this what the Court means by 'visibly open'?
  • “Finally, the Court's disturbing reference to the importance of the country's law schools as training grounds meant to cultivate 'a set of leaders with legitimacy in the eyes of the citizenry,' through the use of racial discrimination deserves discussion. As noted earlier, the Court has soundly rejected the remedying of societal discrimination as a justification for governmental use of race … For those who believe that every racial disproportionality in our society is caused by some kind of racial discrimination, there can be no distinction between remedying societal discrimination and erasing racial disproportionalities in the country's leadership caste. And if the lack of proportional racial representation among our leaders is not caused by societal discrimination, then 'fixing' it is even less of a pressing public necessity.
  • The Court's civics lesson presents yet another example of judicial selection of a theory of political representation based on skin color—an endeavor I have previously rejected …. The majority appears to believe that broader utopian goals justify the Law School's use of race, but '[t]he Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized.'”
book cover

Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.

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