ANALYSES
The Michigan Daily - Monday, June 24, 2003 - 7
SUM OF DECISIONS GREATER THAN THEIR PARTS
It's official: Universities may use race as a factor in admissions -
they just may have to hire more admissions officials to do it.
That is the consensus of the two majority opinions handed down by
the U.S. Supreme Court yesterday morning in the cases Grutter v.
Bollinger and Gratz v Bollinger. In the opinions, written by Justice San-
dra Day O'Connor and Chief Justice William Rehnquist, respectively,
the Supreme Court upheld the Law School's admissions system but
struck down the system used by the College of Literature, Science and
the Arts, saying that it looked too much like a quota.
"This is a huge win for higher education and for Michigan," said
Douglas Laycock, a law professor at the University of Texas. "The law
school case is a green light, and I think any school that cares can comply
with that opinion and consider race ... It's simply a matter of putting
enough people in the admissions office to read the whole file."
"Either you can have an affirmative action plan that works, or you
can't. That's what the fight was about;' he added. "Supporters of affir-
mative action won, and the opponents lost."
Experts added that the opinion against the point system used by the
LSA would only affect a small percentage of higher education institu-
tions - large, competitive schools which, like the University, receive
tens of thousands of applications per year.
The decision in the Law School case will be far more reaching, they
said, since many smaller schools take race into account in admissions.
"I think it is a small price to pay for preserving openness to universi-
ties for disadvantaged minorities," Georgetown University law Prof.
David Cole said.
The constitutionality of considering race in admissions has been
under deep scrutiny since the Supreme Court's 1978 decision in Regents
of the University of California vs. Bakke, which challenged a quota sys-
tem used by the University of California at Davis medical school.
In its final ruling in Bakke, the court held six different opinions and
was split four to four, with four justices upholding affirmative action in
order to remedy past discrimination and the other four justices declaring
it unconstitutional. Justice Lewis Powell was the deciding factor, and his
concurring opinion - which declared quota systems unconstitutional
but also declared diversity to be a compelling state interest - was
mixed.
In the last 25 years, lawsuits challenging the Bakke decision
have propped up all over the country, and opponents of affirma-
tive action have successfully won their battles. The 5th and 1lth
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scious admissions policies used at the University of Texas and
the University of Georgia unconstitutional.
But legal experts from around the country said the opinions issued
would leave no room for second guessing, adding that the Supreme
Court opinion will now overturn the opinions made by lower courts.
"I think that despite the fact that it's a split decision for the University,
it is a ringing victory for affirmative action, because the court holds -
for the first time - that diversity is a compelling state interest," Cole
said. "In Bakke, there was no decision for the court. There was a single
decision by Justice Powell, but no other justice joined his opinion, so the
standing of that decision was a matter of serious dispute."
Still, although the court ruled in favor of allowing race to be used as a
preference in admissions, legal experts say that the justices have actually
shown a decline in the number of reasons why they accept affirmative
action.
In Bakke, four justices favored the use of race based on a number of
different reasons, including remedying past discriminations, reducing
the historical deficit of disfavored minorities in the medical profession,
increasing the number of educated minorities to practice medicine with-
in their own communities and achieving diversity. Powell rejected three
of those rationales.
But in the Grutter decision, the five justices who concurred to form
the majority opinion agreed that the importance of diversity is the only
reason universities should take race into account while making admis-
sions decisions.
"We do not find it necessary to decide whether Justice Powell's opin-
ion is binding," O'Connor wrote in the court's majority opinion. "Today
we endorse Justice Powell's view that student body diversity is a com-
pelling state interest that can justify theuse of race in university admis-
sions."
Although the question of whether diversity is a compelling
state interest - meaning that diversity in and of itself is a justi-
fiable reason for taking race into account - has finally been
put to bed, legal experts said only time will tell whether lawsuits
like those against the University's admissions policies will lay
to rest, and for how long.
"Whether there are going to be lawsuits in the future depends
on the people who are going to file them. I think for the
moment anyway, the lawsuits challenging diversity are doomed
to fail in the Supreme Court," said University of California at
Los Angeles law Prof. Kenneth Karst. "But individual schools
have different programs ... the more (the system) looks like a
quota, the less likely it is to succeed."
Experts added that so long as universities and colleges review an
applicant's entire file on a case-by-case basis, they should not be targets
of lawsuits.
"The court gives fairly clear guidance about what you have to do to'
avoid liability in such lawsuits, Cole said. "There is a road map there.
As long as universities follow that road map, I don't think they should.
fear a large number of lawsuits."
Time and a change in the court's structure could change that, however.
Three of the justices - Rehnquist, O'Connor and John Paul Stevens -
are older than 70, and media reports in the last several months have
mentioned the possibility of some retirements, including Rehnquist and
O'Connor, the authors of yesterday's two majority opinions.
If it takes place whilea conservative president is serving, a retirement
by any members who concurred with O'Connor - a list that includes
Stevens - could change the nature of the court. But experts could not
say when or how the court's makeup will be changing in the near future.
"I think it's predictable that Justice Stevens will not be retiring ... they
may have to carry him out of there," Karst said. "Justice O'Connor.
when she wrote her book, dedicated it to her clerks, past, present and
future."
"People are going to be encouraged to bring lawsuits if they think that
there are going to be people who are receptive at the top of judicial sys-
tem;"he added.
Exactly how long race-conscious admissions policies will thrive is
anyone's guess, and the court's opinion included its own based on the
success of the last 25 years: another 25 years.
Since 1978, Karst said not only have the numbers and percentages of
admitted minorities increased, but the numbers and percentages of suc-
cessful minorities and minority leaders has risen as well. The idea of
diversity has also spread outside of education, including into businesses
and the military, he added.
"If the minority community is going to be providing half your legisla-
ture and half your community leaders, it's essential that they are educat-
ed at the best schools, and the court picked up on that," Karst said. "Of,
the people who actually have to run an institution, there is hardly any-
body who thinks they can do it without diverse leadership,"
But in the opinion, O'Connor wrote that she believes the Law School
and other higher education institutes will eventually stop using race
totally.
"We take the Law School at its word that it would 'like nothing better
than to find a race-neutral admissions formula' and will terminate its
race-conscious admissions program as soon as practicable;" the opinion
states. "It has been 25 years since Justice Powell first approved the use,
of race to farther an interest in student body diversity in the context of'
public higher education.
"Since that time, the number of minority applicants
with high grades and test scores has indeed increased.
We expect that 25 years from now, the use of racial pref-
erences will no longer be necessary to further the inter-
est approved today," the opinion went on to say.
Experts said the figure is not binding, and that it will depend
on where the country is in 2028.
"I think she's making a kind of prediction. It's been 25 years'
since Bakke, and after another 25 years, we'll hope there will
have been significant diversification of colleges and that we
won't have to have it any more," Karst said.
benefits of diversity should be taught at a young age and not
be used asa factor in determining law school qualifications.
Continued from Page 1 "This is not, of course, an educational benefit on which
students will be graded on their Law School transcript, for it
compelling governmental interest. Using evidence from Uni- is a lesson of life rather than law," Scalia wrote.
versity experts, as well as 300 briefs supporting the Universi- O'Connor also invalidated the plaintiffs' assertion that the
ty - from retired military officers to General Motors - Law School violated the Equal Protection Clause of the 14th
O'Connor affirmed that interaction with different viewpoints Amendment. According to past court precedent, strict scruti-
and experiences helped break down stereotypes for students ny is used in analyzing and establishing a framework for nec-
and better prepared them for the workplace. essary racial classifications. O'Connor said the Law School's
"As the District Court emphasized, the Law School's policies fit into this framework.
admissions policy promotes cross racial understanding," "When race-based action is necessary to further a
O'Connor wrote. "These benefits are not theoretical but real, compelling governmental interest, such action does
as major American businesses have made clear that the skills not violate the constitutional guarantee of equal pro-
needed in today's increasingly global marketplace can only be tection so long as the narrow-tailoring requirement is
developed through exposure to widely diverse people, cul- also satisfied," she said.
tures, ideas, and viewpoints." O'Connor, seen as the key swing vote in the cases, also set
Justice Antonin Scalia strongly disagreed with O'Connor some limits. Just as she was during the oral arguments,
on this point in his dissenting opinion. Scalia wrote that the O'Connor remains concerned there is no end in sight for the
policies. Although she did not dictate a timetable for the Uni-
versity, she said it must constantly examine its admissions
procedures so they can be eliminated when no longer needed.
"We take the Law School at its word that it would like
nothing better than to find a race-neutral admissions formula
and will terminate its race-conscious admissions program as
soon as practicable" O'Connor wrote.
"We expect that 25 years from now, the use of racial prefer-
ences will no longer be necessary to further the interest
l approved."
Several legal experts said this point gave comfort to
O'Connor and helped her support the Law School policy.
t "I think 'ishighly-unlikely thatit would simply end
in 2028 because Justice O'Connor in 2003 thought it
should only last for 25 years," Georgetown University
law Prof. David Cole said. "It gave Justice O'Connor
some comfort, but I do not think it will be binding 25
years from now."
In the court's main dissenting opinion, Chief Justice
William Rehnquist questioned the Law School's notion of a
"critical mass" of minority students, saying there is no clear
definition of what that conceptemeans.
He accused the Law School of race-based planning to
equate the proportion of admitted students in each underrep-
resented minority group to the proportion of students who
applied in each respective group, noting various statistics to
prove his theory. For example, in 1995, 9.7 percent of the
applicant pool was black and 9.4 percent of the admitted class
was black. In 2000,'7.5 percent of the applicant pool was
black and 7.3 percent of the admitted class was black.
"I do not believe that the Constitution gives the Law School
such free rein-in th use of'age,"J hnquist wrote. "The Law
School has offered no explanation for its actual admission
practices and, unexplained, we are bound to conclude that the
Law School has managed its admissions program, not to
achieve a critical mass, but to extend offers of admission to
members of selected minority groups in proportion to their
statistical representation in the applicant pool."
LSA
Continued from Page 1
contributes to diversity, both
through their race and through other
unique characteristics.
"Justice Powell's opinion in Bakke
emphasized the importance of consider-
ing each particular applicant as an indi-
vidual, assessing all of the qualities that
individual(s) ... possesses, and in turn,
evaluating that individual's ability to
contribute to the unique setting of higher
education," the opinion states. "The
admissions program Justice Powell
described, however, did not contemplate
that any single characteristic automati-
cally ensured a specific and identifiable
contribution to a university's diversity."
University administrators and lawyers
have argued that the massive number of
applications received - about 25,000 a
year - makes a point system more
practical than an individual review of
each candidate, which would consume
time and resources.
But the Rehnquist opinion states
that "the fact that the implementa-
tion of a program capable of provid-
ing individualized consideration
might present administrative chal-
lenges does not render constitutional
an otherwise problematic system."
Although some applicants are
flagged and reviewed individually by
the LSA Admissions Review Council,
the opinion states that the council
does not constitute sufficient individ-
ualized review because "it is undis-
puted that such consideration is the
exception and not the rule."
Writing a concurring opinion,
Justice Sandra Day O'Connor said
the point system is not narrowly tai-
lored because it assigns the same
value to each racial minority appli-
cant's contribution to diversity.
"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, experi-
ences, or qualities of each individual
applicant," her opinion states.
O'Connor's opinion also stated
that 20 points for race was simply
too many. "Even the most outstand-
ing national high school leader
could never receive more than five
points for his or her contributions,"
her opinion states.
Writing the dissenting opinion to the
ruling, Justice Ruth Bader Ginsburg
stated that the strict level of scrutiny
"If honesty is the best
policy, then surely
Michigan's accurately
described, fully
disclosed College
affirmative action
program is preferable
to achieving similar
numbers through
winks, nods, and
disguises'
-Justice Sandra Day O'Connor
U.S. Supreme Court
applied to the LSA case would be justi-
fied if the nation were free from "rank
discrimination" and racial inequality in
terms of education and income.
"There is no suggestion that the Col-
lege adopted its current policy in order
to limit or decrease enrollment by any
particular racial or ethnic group, and no
seats are reserved on the basis of race,
her opinion states.
Justice David Souter also wrote a
dissenting opinion that states that
the very nature of race-conscious
admissions policies require award-
ing a value to minorities that
increases their admissions chances.
"Since college admission is not left
entirely to inarticulate intuition, it is
hard to see what is inappropriate in
assigning some stated value to a rele-
vant characteristics. ... Justice Powell's
plus factors necessarily are assigned
some values,"the opinion states.
Ginsberg's opinion also states that
the decision may motivate colleges to
rely on "camouflage" tactics to deter-
mine an applicant's race, such as
encouraging applicants to write essays
about cultural traditions or to list the
Hispanic names of their relatives.
"If honesty is the best policy, then
surely Michigan's accurately described,
fully disclosed College affirmative
action program is preferable to achiev-
ing similar numbers through winks,
nods, and disguises,"her opinion states.
Justices Clarence Thomas and
Stephen Breyer wrote short concurring
opinions. Souter and Justice John Paul
Stevens also wrote dissenting opinions
dealing with the more technical issue of
whether the plaintiffs deserved compen-
sation for being rejected by LSA.
COURT
Continued from Page 1
O'Connor wrote that the Law School policy
"engages in a highly individualized, holistic
review of each applicant's file, giving serious
consideration to all the ways an applicant might
contribute to a diverse educational environment.
The program adequately ensures that all fac-
tors that may contribute to diversity are mean-
ingfully considered alongside race."
But writing for the majority in the LSA case,
Chief Justice William Rehnquist wrote that "the
only consideration that accompanies the 20-point
automatic distribution to all applicants from under-
represented minorities is a factual review to deter-
mine whether an individual is a member of one of
these minority groups. ... The LSA's 20-point distri-
bution has the effect of making 'the factor of race
... decisive' for virtually every minimally qualified
underrepresented minority applicant."
O'Connor and Rehnquist have a total of 53
years of experience on the court, in which they
have gained reputations as a pragmatic swing
vote and a consistent conservative, respectively.
They are both rumored to retire in the near future,
waited long enough to have a voice ina landmark case
that they possess enormous passion for.
O'Connor faced enormous discrimination in the
1950s when very few women graduated from law
school. Rehnquist has repeatedly opposed affirmative
action policies since his 1971 entrance onto the court
and voted against the constitutionality of racial quotas
in the 1978 Regents of the University of California v
Bakke case.
Despite the split decision, University Presi-
dent Mary Sue Coleman called the ruling "a
tremendous victory" for the University and all
institutions of higher education. "The court sent
a clear message today that affirmative action
may be used in our admissions policies," she
said during a press conference by telephone.
"The court has provided two important sig-
nals. The first is a green light to pursue diversity
in the college classroom. The second is a road
map to get us there," Coleman said.
Although the court's ruling forces the University to
modify the LSA admissions policy, which assigned 20
points out of a possible 150 to black, Hispanic or
Native American applicants, Coleman said the Univer-
sity will "find the route that continues our commit-
ment to a richly diverse student body."
The court has provided the University with a
"road map" for revising the LSA policy, stress-
ing the need for a more individualized review
process, Coleman said.
"We really don't anticipate much difficulty in com-
ing up with a new process," she said. "We believe we
can do this. We're not concerned about it at all"
Coleman added that the new policy should be
ready by this fall, and that the ruling would not
affect this year's incoming freshmen.
Terrence Pell, president of the Center for Indi-
vidual Rights, which represented the plaintiffs,
also called the ruling a victory for opponents of
"The court has provided two important signals. The first is a
green light to pursue diversity in the college classroom. The
second is a road map to get us there.'
- Mary Sue Colema
University presiden
affirmative action at a press teleconference.
"Today's ruling is a mixed decision that sig-
nals the beginning of the end for race-based
admissions," he said "Today's ruling was another
victory for opponents of affirmative action ...
because it signals a trend downward," he said.
The ruling leaven schools with "a slight
crack" for using racial plus factors, requiring
them to conduct a "good faith assessment" of all
applicants, he said.
Pell added that voters now will be able to pass
statewide ballot initiatives that ban further use of race-
conscious admissions, such as those already passed in
California and Washington. "The Supreme Court
doesn't have the final word. States on their own can
consider (that a policy) like the Law School system ...
is a bad system," he said.
In a separate dissenting opinion, Justice
Antonin Scalia predicted the decision's ambigui-
ty would provoke more lawsuits, including issues
regarding the controversial definition of critical
mass, or whether a University is making a "good
faith effort" in achieving racial diversity.
In contrast, legal experts predicted a decrease
in the number of lawsuits, saying Grutter and
Gratz have more legitimacy than Bakke because
they were written by majorities of the court.
"I'll assume that there will still be lawsuits,
but this will be a huge loss for the people who
are bringing those lawsuits," University of Texas
law Prof. Douglas Laycock said.
Michigan State University law Prof. Frank
Ravitch said the ruling is a definitive approval
of the use of race in admissions policies,
although he added that the decision only extends
to higher education institutions. "You now have
a clear majority of the court saying diversity can
be a compelling state interest," Ravitch said.
Bakke banned racial quotas but Justice Lewis
Powell wrote a concurring opinion stating that
race could be used as one of many admissions
factors. Some legal analysts and CIR had ques-
tioned whether Powell's opinion spoke for the
majority of the court.
University of California at Berkeley law Prof.
Robert Post said he had expected the court to rule
only one policy constitutional. "I think the point,
from the court's point of view, is to send a tactical
message. The court's message is affirmative
action is constitutional, but suspect," he said.
O'Connor wrote that the court expects race-con-
scious admissions policies to be unnecessary in 25
years.
Post said the clause is not an official deadline
but an additional restriction on the use of racial
plus factors. "Putting a number of years is a lit-
tle unusual, and I don't think it stands for
drop-dead day."
The ruling may open the way for schools like the.
University of Texas and the University of Georgia-;
schools that have had their race-conscious admission,
policies overturned by federal courts - to reinstate
racial plus factors into their policies.
Ravitch said the ruling will allow them to do
that, but their policies must be modeled after the
individualized review used by the Law School.
Reaction to the decision spread beyond the nation's,
capital today. Back in Ann Arbor, several student
groups held apress conference at the Diag.
"Affirmative action has been upheld, Bakkie
has been deemed good and we move forward
today knowing that we are moving in the right
direction," Michigan Student Assembly Presi-
dent Angela Galardi said. "The Court upheld the,
principle while critiquing the process."
But recent University graduate James Justin Wil-
son, a former editor of The Michigan Review, said.,
diversity is not an excuse for racism.
"This is the worst decision," said Wilson, who was
present in the courtroom. "It leaves a very ambiguou-
precedent in Bakke. Now they won't tell us how they:
createa class - the transparency is gone."
The decision ends the University's admissions
saga, which began in 1997 when three rejected
applicants - Barbara Grutter, Jennifer Gratz and,
Patrick Hamacher - sued the Law School and LSA
over their race-conscious admission policies.
During the past year the two cases, Grutter
and Gratz have gripped the attention of much of,
the nation, including thousands of students,
numerous corporations, Michigan Gov. Jennifer
Granholm and even President Bush, who
denounced the policies as disguised quotas in an,.
address to the nation.
Today Bush issued a statement in which he
praised the court for "recognizing the value of
diversity on our nation's campuses."
"Today's decisions seek a careful balance between
the goal of campus diversity and the fundamental prin-'
ciple of equal treatment under the law," he said. "MY
administration will continue to promote policies that
expand educational opportunities for Americans from
all racial, ethnic, and economic backgrounds."
O'Connor was joined in her Law School opinion by
Justices John Paul Stevens, David Souter, Ruth Bader
Ginsburg and Stephen Breyer, while Rehnquist and
Justices Clarence Thomas, Antonin Scalia and
Anthony Kennedy dissented.
In the LSA case, Rehnquist, O'Connor,
Scalia, Kennedy, Thomas and Breyer voted
against the policy. Stevens, Souter and Ginsberg
dissented in that opinion.
I"