As most University students prepare to work and enjoy their summer vacations, the U.S. Supreme Court will spend the next few months deliberating over the fate of race-conscious admissions policies.
In late June or early July, the court will rule on the lawsuits challenging the University’s use of race in the admission policies of the Law School and College of Literature, Science and the Arts – a ruling that is considered the most significant higher education case in a generation.
University spokeswoman Julie Peterson said President Mary Sue Coleman is expected to send a mass e-mail to the campus community immediately after the decision is announced. The court ruling will be the first involving affirmative action since the 1978 Regents of the University of California v. Bakke ruling, which banned racial quotas but permitted the use of race as an admissions factor.
Peterson said administrators must wait for the court’s decision to see how it affects the University’s policies in order to determine what changes, if any, need to be made.
Students can expect one of four possible outcomes, ranging from a ban on the use of race as an admissions factor for schools across the country to an affirmation of the use of racial plus factors.
University administrators and affirmative action supporters fear a decision overturning Bakke will lead to a drastic drop in minority enrollment, but a ruling upholding both policies will probably lead to many other schools adopting policies similar to the University’s.
Many legal experts anticipate a split decision, with the court upholding one of the policies while overturning the other. Wayne State University law Prof. Steven Winter said Justices Sandra Day O’Connor and Anthony Kennedy, the possible swing votes, may favor the Law School policy because it more closely follows the requirements of the Bakke ruling.
“Kennedy seemed to suggest that he might accept an individualized consideration of race … as opposed to the pure number system,” Winter said. “The point system seems more like a quota.”
Curt Levey, spokesman for the Center for Individual Rights – the law firm representing the plaintiffs in the cases – said he would consider a split decision a partial victory because it would only eliminate one way to use race-conscious admissions.
Peterson said if one of the policies is overturned, University lawyers will closely examine the court’s decision and decide how to change the policy before the fall admissions cycle begins.
A decision in favor of both policies would likely end the debate over the constitutionality of using race in admissions. Winter said such a decision is unlikely, but would give schools across the country the choice of modeling their admissions policies after the Law School or LSA policy.
“There will be a certain amount of copycatting,” Michigan State University law Prof. Frank Ravitch said.
Public universities in Texas and California, which had their race-conscious admissions policies overturned by federal appelate courts, could also opt to tailor their policies after the University’s, Ravitch said.
In its legal briefs, CIR argued that the court should not only overturn the University’s policies, but instead ban the use of race in admissions in general. Such a ruling would instantly become one of the most significant higher education decisions in the court’s history, Levey said.
All public schools would be forced to discontinue the use of racial plus factors, but many private schools would be required to reform their policies as well, Ravitch said.
Due to the wide-ranging consequences of such a ruling, Winter predicted the court will announce a more moderate ruling. He said although the court has independent jurisdiction, briefs filed by retired military officers and other supporters of the University’s policies will affect their decision.
But Ravitch said the current justices have been active in undoing past precedents in many other cases.
The court could also overturn both policies but still permit the use of race-conscious admissions. The court probably will not elaborate on how to use race in this circumstance, making it difficult for schools to determine how to legally implement race as a factor, Winter said.
“If it strikes down both, it’s not very clear what the court could say,” he said. “If you say what the Law School is doing is unacceptable, there’s not much left.”
But Ravitch said the court may decide to redefine Bakke, and O’Connor or Kennedy may write an opinion including a more detailed explanation of how to use race. An example would be to require the LSA policy to reduce the number of points it grants to minorities from 20 out of 150 to five, he said.