Affirmative Action

USA > Justice
from the June 24, 2003 edition

Race in admissions revised

Supreme Court does not ban use of race by universities, but says it must be limited.

By Warren Richey | Staff writer of The Christian Science Monitor

WASHINGTON – American colleges and universities may continue to use race as a factor in college admissions, but not in the same way that the University of Michigan has used it to select its undergraduate students. In two major split decisions announced yesterday, the US Supreme Court struck down one affirmative action program and upheld another at the University of Michigan.
The vote to strike down the undergraduate admissions program was 6 to 3. The vote to uphold the law school program was 5 to 4.
The court struck down the undergraduate admissions program because the justices said it didn't provide an individualized assessment of all applicants. The justices upheld the second admissions program at Michigan's law school, saying it did not violate constitutional principles of equal protection and did not amount to illegal reverse discrimination.
The decisions are significant because even though the court refused to rule out any use of race to achieve diversity in college and other government programs, the majority justices nonetheless made clear that any use of race must be narrowly tailored.
Justice Sandra Day O'Connor played a key role in the outcome of both cases - staking out middle ground on an issue that has divided the nation and often seemed to defy compromise.
She wrote the majority opinion upholding the law school admissions program and provided a critical fifth vote while concurring in an opinion written by Chief Justice William Rehnquist striking down the undergraduate program.
She explained the difference between the law school and undergraduate cases in her written concurrence in the undergraduate case. "The law school considers the various diversity qualifications of each applicant, including race, on a case-by-case basis," Justice O'Connor writes. "By contrast, the Office of Undergraduate Admissions relies on the selection index to assign every underrepresented minority applicant the same, automatic 20-point bonus without consideration of the particular background, experiences, and qualities of each individual applicant."
She adds: "This mechanized selection index score, by and large, automatically determines the admissions decisions for each applicant. The selection index thus precludes admissions counselors from conducting the type of individualized consideration the court's opinion in [the law school case] requires."
In upholding the Michigan Law School admissions program, the justices have given other highly selective colleges a road map to follow in their efforts to continue to achieve a diversity of thought and experience on the nation's most elite campuses. But they also set a deadline. "We expect that 25 years from now, the use of racial preferences will no longer be necessary," writes O'Connor.
Those on both sides of the contentious debate over affirmative action claimed victory after the ruling. "This is a resounding affirmation that will be heard across the land - from our college classrooms to our corporate boardrooms," says Mary Sue Coleman, president of the University of Michigan.
Roger Clegg of the Center for Equal Opportunity had a different take. "It's clear that in at least some instances the use of racial and ethnic preferences is illegal." But he adds that the issue remains unresolved. "The Supreme Court has sent everyone back to the trenches, both sides, and we're happy to continue to fight there."
Some critics of race-based admissions policies saw the split decision in the two cases as a defeat. "It just means the quota system in US higher education will be in place probably for decades to come," says Abigail Thernstrom, a commissioner on the US Commission for Civil Rights, a longtime critic of affirmative-action plans.
Despite the urging of many conservatives, the high court did not overturn the landmark 1978 Bakke decision, which permits the use of race as a factor in achieving campus diversity. But in overturning Michigan's undergraduate affirmative-action plan, the court said that Justice Lewis Powell's controlling opinion in Bakke called for a more restrictive approach in the use of race in college admissions than Michigan's approach.
The court said that rather than relying on race as a mere "plus factor" in a competitive admissions process, Michigan's undergraduate affirmative-action program created a two-track admission process in which white applicants with higher academic qualifications were consistently rejected to make room for less qualified minority applicants. The program was justified by the university's compelling interest in providing a diverse student body.
But majority justices found that while diversity continues to be a significant reason to justify the use of race as a factor in admissions decisions, it does not justify undergraduate admissions program.
At the undergraduate level, minority applicants to the University of Michigan are automatically granted 20 extra points out of a scale of 100 points. It is the equivalent of one full grade point average.
AT THE university's law school, the admissions staff sought each year to admit a "critical mass" of black, Hispanic, and native American students to ensure the population would reflect what the admission staff deemed an acceptable level of racial and ethnic diversity. Over the past decade, the critical mass amounted to about 10 to 20 percent of each entering class.
The court's decisions stem from two cases challenging Michigan's affirmative-action plans. In one, two white undergraduate applicants, Jennifer Gratz and Patrick Hamacher, sued, claiming the university engaged in illegal racial discrimination when they were denied admission in 1995 and 1997. The primary defendant in the case was then university president Lee Bollinger. In the other case, Barbara Grutter, a white mother of two who ran her own business, sued the law school after she was denied admission in 1997.

The Volstead act was probably the one single glaring example of the Federal Government stepping out of bounds. The USSC looked the other way. The framers did leave it open for such folly (of course, they would never possibly imagine anyone wanting to pass such a law being high intakers themselves of the libations -- if there had been an AA then, they would nearly all be in meetings).

The control valve is the USSC -- and on the subject, I don't see where this can be construed as legislating. This ploy of applying equal rights under the law is a Catch 22 because they can determine and/or interpret what the law means and establish a precedent or overturn a precedent.

The main trouble with the system is the preponderance of second rate attorneys running the legislatures, both in the federal and state governments. What are attorneys doing making law? Especially ones the rest of us have to follow? You don't suppose thre some self-interest there, espcially when they are put in office by the extremely wealthy and powerful (with very few exceptions).

If anyone thinks the state governments are better at governing, they'd better start studying some of the states constitutions. They'd better study what condition most of our states are in right now, California being and example). The state consitutions are usually ten times longer than "War and Peace" and raft with legal potholes.

Don't even ask about local laws -- they can be so nonsensical as to defy the imagination.

Should the federal government step in where the states get out of control. Just what was the Civil War?

Just for the heck of it, I went to Google, and typed "stupid laws," and got the following link. Have fun. http://www.ahajokes.com/stupid_laws.html
c.i.

You don't really expect state and local politicians to be any less inept, conniving and power hungry (or one could just say smarter) than those in our federal government? Stupid laws is the tip of the iceburg -- it's the original incongruity in setting up of each invidual state government that is impossible to fathom.

LW - I think we'll have to agree to disagree on this one, but I appreciate the opportunity to do it with relative civility.

Oh, and FWIW, while I approve of the results over all, I think the Civil War was an extreme example of the Federal government overstepping its bounds. (Just an opinion...)

Oh, so you think the Southern states should have been allowed to cecede based on state's rights and perpetuate slavery. Interesting.

Scrat said This, of course, is but one interpretation of interpretation. It's an unsettled question with Scalia, Scrat, Coulter, biblical literalists and generally people who make love like accountants on one side, with Dworkin and God on the other.

Good pieces this morning in the NY Times, but the exchange between Dellinger and Lithwick at Slate is very thought provoking.
http://slate.msn.com/id/2084657/entry/0/

What's interesting is your continuing efforts to twist anything anyone writes with which you disagree into something it is not.

If a judge releases a murderer because the police overstepped their powers, would you accuse the judge of being "for murder"? Are you in favor of ignoring civil rights if it stops crime? Regardless of the fact that I abhor the practice of slavery everywhere it has existed, it seems to me that those states had a right to choose to leave the union. I think it has been for the best that they did not, but that's a different thing than the issue of whether the fed had legitimate authority to force a state to remain part of the US. (FYI: I am a Yankee.)

I could be completely wrong on this point, and welcome any information one of our better read members can offer.

Good link Bernie! It is an interesting exchange.

Just playing Devil's Advocate, scrat. You offered the opinion without explanation and have now explained yourself. I'm not quite sure of your comparisons offered as parallels to Lincoln and the Civil War (the South did fire the first shot), especially trying to characterize the South as beginning the war because of a violation of state's rights when the underlying motive was really because they believed slavery was an economical necessity and would have perpetuated it if it weren't for the war. What happened to their black populace after the war? That's another debate entirely, of course, which would derail this thread.

Blatham -- good point and a good link to an article that also has many good points.

People who are rejected by higher education entities, private or not (since many private institutions accept government grants) will still seek legal means to try and "correct" what they might perceive as an unfair rejection by a school. This is going to be tested in the courts more than once, that's for sure. Also, with the retirement of USSC judges, Dubya has the ability to pack the court. Let's see if the opposition will fall down and confirm the nominees.

LW - Thanks for the reply. Sometimes I have to try to trike a balance in knowing when to amplify an answer and when to keep it succinct. I do think the Civil War question would make for a good discussion of its own, since I am admittedly not as well informed on that historic event as I could be.

I guess my broad theme was that I don't believe in doing the wrong thing for the right reason, or that the ends justify the means.

That's an interesting discussion topic itself, scrat. I've seen it (do the ends ever justify the means?) debated a few times. I think I'm less sure of my stand on that than I was 20 or 25 years ago.

I've posted this elsewhere, but post again here in response to the temptation of thinking that ends will remain pure and unsullied when we utilize deceitful or immoral means. It's but one of very many examples one could use to address that argument.

(note: emphasis added)
http://www.tnr.com/doc.mhtml?i=20030630&s=ackermanjudis063003

I really thought the Michigan AA case was decided well. The across the board points for skin color was done away with, but the individualized, all encompassing background of law school applicants allowed color as a part of it's admissions process.

Sandra O'Conner gives AA another 25 years. Since hers was the majority opinion, it seems the others must agree.

I feel this is a good day for equality--and there is an end in sight for preferences. I wish someone would bring suit over legacies and athletic sholarships.

Either from the left or from the right, politicians always try to choke down our throat "the means justifies the ends." That's what get challenged sometimes in our courts and the USSC's responsibility is to examine the "means" and whether it actually does justify the "ends." Somewhere in there they have to weight it against what the authors of the Constitution meant by those words. When a document starts out "in order to form a more perfect union" -- more perfect than what, or for that matter, how can something be "more perfect?" The semantics in the Constitution are indeed tricky and although we'd like to believe they composed something with no loopholes, in fact they did not. The first loophole was filled by the Bill of Rights. The sometimes timid, sometimes brash amendments which have plodded along at a snail's pace for the past 227 years cannot be cited as keeping up with the times. The two-term President amendment was jockyed through purely because of FDR, for instance and we all know by whom.

Don't always expect logic in law -- it ends up that many laws are illogical and unreasonable -- that's why a caring, thoughful person considers the spirit of the law. Most of the skewed and incongrous laws are state and local laws, some so silly and/or inconsequential that not many would bother to test their constitutionality.

I would definitely recommend studying up on the Civil War -- the jury has been out on that one since. I have kept up with it through American Heritage, Ken Burn's Civil War series and Gore Vidal's "Lincoln" as far as more popular sources but there is a lot on the Internet about that particular war.

I have to ask again... would you support an admissions policy that had as a stated goal giving preferential treatment to whites?

No, Scrat. I think AA is being slowly dismantled. To jerk it away completely would not be the way to go, IMO.

This is a big step toward the equality I spoke of. Considering the ill effects of institutionalised racism for a couple of hundred years, I don't think taking 25 more years to wean the country off of it is too much to ask.

One of the best methods to overcome this mess is to allow the top five percent of all schools to attend whatever college they wish to attend. It does away with all the subjective procedures to allow for affirmative action, and still allow for a good mix of minorities. c.i.

I wonder whether you would have advocated a slow weaning of the country from slavery. (Actually, I know you wouldn't have, but I think you get my point.)

Are you suggesting that the federal government force private institutions to accept students?