Supreme Court Backs Law School Affirmative Action
Justices Strike Down Policy for Undergraduate Admissions

By Anne Gearan
Associated Press Writer
Monday, June 23, 2003; 10:48 AM

WASHINGTON(AP) - In two split decisions, the Supreme Court on Monday ruled that minority applicants may be given an edge when applying for admissions to universities, but limited how much a factor race can play in the selection of students.

The high court struck down a point system used by the University of Michigan, but did not go as far as opponents of affirmative action had wanted. The court approved a separate program used at the University of Michigan law school that gives race less prominence in the admissions decision-making process.

The court divided in both cases. It upheld the law school program that sought a "critical mass" of minorities by a 5-4 vote, with Justice Sandra Day O'Connor siding with the court's more liberal justices to decide the case.

The court split 6-3 in finding the undergraduate program unconstitutional. Chief Justice William H. Rehnquist wrote the majority opinion in the undergraduate case, joined by O'Connor and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Stephen Breyer.

Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg dissented.

Michigan's undergraduate admissions structure is tantamount to a quota, the majority in that case concluded. While it set no fixed target for the number of minority students who should get in, the point-based evaluation system gave minority applicants a 20-point boost.

Government has a compelling interest in promoting racial diversity on campus, but the undergraduate school's admissions policy is not the way to get there, the court majority said.

The ruling affects tax-supported schools, and by extension private schools and other institutions, that have looked for ways to boost minority enrollment without violating the Constitution's guarantee against discrimination.

The University of Michigan cases are the most significant test of affirmative action to reach the court in a generation. At issue was whether racial preference programs unconstitutionally discriminate against white students.

The rulings follow the path the court set a generation ago, when it outlawed quotas but still left room for schools to improve the odds for minority applicants.

The two Michigan cases directly address only admissions at public, tax-supported institutions. But the court's rationale is expected to have a wide ripple through private colleges and universities, other government decision-making and the business world.

Opponents of affirmative action had hoped the Supreme Court would use this opportunity to ban most consideration of race in any government decisions. The court is far more conservative than in 1978, when it last ruled on affirmative action in higher education admissions, and the justices have put heavy conditions on government affirmative action in other arenas over the past decade.

Defending its general approach to affirmative action, the university has said that having what it calls a critical mass of minority students benefits the whole student body. Minorities must be present in more than token numbers to ensure all students can interact, the university has said.

Michigan insists that it accepts only academically qualified students, no matter what their race.

Michigan's undergraduate school used a 150-point index to screen applicants. The 20 points awarded to minorities was more than the school awarded for some measures of academic excellence, writing ability or leadership skills. Outstanding athletes also got 20 points, as did impoverished applicants.

The school has also "flagged" minority applications, making it easier to keep an applicant in the pool even if he or she flunked an initial review.

In 1997, the year that two white students sued, the school had 13,500 applicants and selected 3,958 of them as freshmen.

The white plaintiffs, Jennifer Gratz and Patrick Hamacher, were Michigan residents with good grades and other qualifications when they were rejected at the flagship Ann Arbor campus. Both have since graduated from other colleges.

The Bush administration sided with the students, but did not call for an outright end to affirmative action.

The students were supported by a range of conservative legal groups, some law professors and affirmative action opponents.

The university's law school program uses a separate, less structured system to promote minority enrollment.

The law school case is Grutter v. Bollinger, 02-241; the undergraduate case is Gratz v. Bollinger, 02-516.

In Split Decision,
Court Backs Affirmative Action
Justices Limit How Much a Factor Race Can Play in Admissions

By Charles Lane
Washington Post Staff Writer
Monday, June 23, 2003; 5:25 PM

The Supreme Court issued a qualified but resounding endorsement of affirmative action in higher education today, in a pair of historic decisions that, taken together, ratified diversity as a rationale for race-conscious admissions and laid out constitutionally acceptable means for achieving it.

A slender five-justice majority upheld the University of Michigan law school's approach to enrolling a "critical mass" of African Americans, Latinos and Native Americans, under which the school considers each applicant student individually and sets no explicit quota. At the same time, a six-justice majority rejected, as too mechanistic, Michigan's undergraduate affirmative action program, under which members of these "underrepresented" groups get an automatic 20-point bonus on the 150-point scale used to rank applicants.

The net effect of the two rulings was to permit selective public and private universities to continue using race as a "plus-factor" in evaluating potential students, provided that they take sufficient care to evaluate individually each applicant's ability to contribute to a diverse student body. Five justices also endorsed the view that diversity-based affirmative action should not be a permanent feature of American life, urging universities to start preparing for the day, 25 years hence, when it will no longer be necessary.

At the center of the action was Justice Sandra Day O'Connor, the perennial centrist swing voter on the court, who was the only justice to vote with the majority on all the key holdings of today's cases.

It was O'Connor who, in a firm voice, announced the crucial opinion of the court in the law school case, describing for a hushed audience the social and educational benefits of racial and ethnic heterogeneity on the campuses of America's selective institutions.

"Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized," O'Connor wrote, in an opinion joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The court's rulings brought a dramatic conclusion to the latest phase of a national debate over race and higher education that last peaked at the court 25 years ago, when the court, in a splintered decision in the case of Regents of the University of California v. Bakke, ruled out quotas but left the door open to the use of race in admissions.

It is a debate that has raged not only at the ballot box, on TV talk shows and on college campuses, but also within the halls of government--most recently as the Bush administration engaged in a fierce internal struggle over how to respond to the Michigan cases.

Ultimately, the administration sided with opponents of Michigan's policies, arguing in a friend-of-the-court brief that racial and ethnic diversity is an important goal, but that both the undergraduate and law school programs were unconstitutional because the university had failed to attempt race-neutral means of achieving diversity first.

The administration endorsed instead so-called "ten percent" plans such as Texas' guarantee of admission to the University of Texas to the top 10 percent of each high school class in the state.

In an important qualification, O'Connor noted that the Constitution forbids permanent racial classifications. Affirmative action at universities "must be limited in time," she wrote, adding that states that continue to use race-conscious admissions in their university systems should aspire to move beyond them, applying lessons from the race-neutral policies used in California, Florida and Washington, where affirmative action has been abolished.

"We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," O'Connor wrote.