Supreme Court to Revisit Colleges' Diversity Efforts
By LINDA GREENHOUSE
New York Times
December 2, 2002
WASHINGTON, Dec. 2 — The decades-long wait for the Supreme Court to return to the heated topic of affirmative action in university admissions ended today when the justices announced that they would review two cases challenging the University of Michigan's consideration of race to ensure a diverse student body for its law school and undergraduate program.
Coming a generation after the Bakke decision in 1978 invalidated the use of fixed racial quotas but upheld diversity as a goal, the new cases, to be decided by early summer, are certain to attract enormous attention and to renew a debate that has never completely died down.
The court in these cases could prohibit the use of race in university admissions, allow its current widespread use to continue, or pronounce new standards for evaluating affirmative action case by case.
Getting the issue back on the Supreme Court's docket is the culmination of a long litigation campaign by a public interest group here, the Center for Individual Rights, which opposes affirmative action and helped recruit the three unsuccessful white applicants who are the plaintiffs in the two cases.
One, Barbara Grutter, applied to the University of Michigan Law School, one of the most selective in the country, in 1996 at the age of 43. The two white students who failed to win admission to the university's College of Literature, Science and the Arts, the main undergraduate program, which this year received more than 25,000 applications for 5,187 places, are Jennifer Gratz and Patrick Hamacher. Both were B students at Michigan high schools who argued that the admission of black and Hispanic applicants with similar or lesser academic records was a violation of the constitutional guarantee of equal protection.
The United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the law school's admissions program in a bitterly divided 5 to 4 decision earlier this year. The Federal District Court in Detroit upheld the current undergraduate admissions program two years ago in a decision that found an earlier, more rigid version unconstitutional. An appeals court heard the undergraduate case a year ago but has not yet ruled on it, and the Supreme Court today granted the plaintiffs' request to accept a direct appeal from the district court.
The cases present the same two legal questions. The first is whether diversity is a "compelling state interest," the test the court applies to any governmental policy that takes race into account. The second is whether, if that test is met as a general matter, the specific program under review is "narrowly tailored" to accomplish the goal with as little harm as possible to competing interests.
The first question is an almost abstract matter of constitutional doctrine, while the answer to the second is highly dependent on specific details. Michigan has vowed to defend its admissions programs vigorously, and the public can expect to learn a fair amount about admissions practices as they have evolved under a legal microscope at selective universities today.
"We are looking forward to presenting our cases before the Supreme Court," the university's president, Mary Sue Coleman, said today. "Our admissions policies have been carefully and thoughtfully designed, and are based upon a great deal of research."
While the constitutional guarantee of equal protection applies directly only to government institutions, private universities also have a big stake in the outcome of the cases, Grutter v. Bollinger, No. 02-241, and Gratz v. Bollinger, No. 02-516. That is because Title VI of the Civil Rights Act of 1964 bars race discrimination by any institution that receives federal money, a category that covers essentially all universities except for some religious colleges. Michigan is likely to garner widespread support from the higher education community as well as from traditional civil rights organizations.
In its briefs, the university is arguing that with strictly race-blind admissions, it could not possibly build the "critical mass" of minority students necessary to make diversity more than an empty promise. Despite its outreach and recruitment efforts, the university said, the law school received only 35 applications from minority students at the top range of undergraduate grades and law board scores that account for nearly all admissions. In contrast, the school received 900 applications from white students in that range.
Even with a "race-blind lottery," the brief said, "the percentage of African-American students enrolled would almost certainly fall below 3 percent."
At the law school today, 74 of 1,109 students are black (6.7 percent) and 49 are Hispanic (4.4 percent). Students of Asian background are not considered "underrepresented minorities" and do not benefit from affirmative action programs at Michigan. Among undergraduate students, 8.4 percent are black and 4.7 percent are Hispanic.
There are differences between the affirmative action programs at the law school and undergraduate school. Whether those differences are relevant to the "narrow tailoring" analysis may depend on Justice Sandra Day O'Connor. She is generally regarded as the least categorical of the justices on affirmative action, paying closer attention to details than to theory. It would surprise almost no one if the eventual decision was 5 to 4 with Justice O'Connor casting the deciding vote.
The law school considers not only grades and scores but also "soft variables," including unusual achievements and experiences, non-academic performance, personal background, and ability to make a "notable contribution" to the class. The policy seeks "meaningful numbers" of students from groups that have been historically discriminated against, in the belief that learning to "work more effectively and more sensitively" in a multiracial world is important for a lawyer's education.
The current undergraduate admissions policy was adopted in 1999, after the lawsuit was filed, replacing an earlier policy that used a grid of scores, grades and other factors to predict different admissions outcomes depending on the ethnic background of the applicant. The current policy uses a "selection index" of up to 150 points, most of which are accounted for by strictly academic factors. Twenty points on this scale can be granted for any one additional factor, including membership in an underrepresented minority group, socioeconomic disadvantage, athletic ability, or graduation from a predominantly minority high school.
In its Supreme Court appeal, the Center for Individual Rights calls this approach "a race-based two-track admissions system" that is even "more egregious" than the 16 percent minority quota the court struck down in the Bakke case.
That 1978 case, Regents of the University of California v. Allan Bakke, had its origin in a white student's rejection by a state-supported medical school that had reserved 16 of 100 places in the entering class for members of minority groups. In its decision, the court repudiated quotas but kept affirmative action alive by endorsing the goal of student diversity in higher education as a compelling governmental interest. Mr. Bakke was ordered admitted, but the concept of affirmative action survived.
In its brief in the Michigan case, the center said, "It is a measure of how formless, standardless, arbitrary, and unlimited in scope the diversity rationale is or has become that the university puts it forward in defending the quota system at issue here."
Linda Chavez, president of the Center for Equal Opportunity, another group opposed to affirmative action, said today that "all races will win" if the court bans affirmative action in admissions. Having lower admission standards for blacks and Hispanics "is insulting and undermines the mutual respect that is essential in an increasingly multiethnic, multiracial America," she said.