While it is always difficult to handicap U.S. Supreme Court decisions based on the oral arguments, Tuesday’s hearings of Grutter v. Bollinger and Gratz v. Bollinger should offer supporters of affirmative action hope that they will prevail at the high court. The most notable development of the day was Justice Sandra Day O’Connor’s divulgence that she believes race can be utilized to remedy past discrimination. The arguments progressed with few surprises, until Justice Antonin Scalia began his assault on the premises of the University’s admissions programs.
Scalia argued that the Law School created the need for affirmative action because it is one of the nation’s most prestigious school’s. “If Michigan really cares about that racial imbalance, why doesn’t it do as many other state law schools do, lower the standards and not have a flagship elite law school.” This laughable statement does not recognize that society needs excellent schools with diverse student bodies. Schools like the Law School are often the best means of being hired by top-tier law firms. These firms need both minorities and lawyers who have studied in diverse environments so the firms can best serve their clients across the world.
Even more troubling, Scalia’s arguments assume that minorities cannot compete at top-tier schools. His solution of watering down institutions to a level where all applicants are qualified would benefit no one. The University did not create the problem of racial inequality by establishing an elite school as Scalia seemed to suggest. Rather it is partially due to the University’s affirmative action policies that the Law School has become the elite institution it is. It is no coincidence that institutions with strong affirmative action policies are often some of the most successful – diversity is clearly a compelling interest.
The contention that without affirmative action the admissions systems at universities would be race-neutral is no more than pie in the sky. Variables such as legacy and standardized test scores act as unwitting surrogates amounting to affirmative action for white applicants. While these factors may not be explicitly based on race, they are of tremendous help to white students. And as evidenced by the comments of Justices Ruth Bader Ginsburg and David Souter, the need for minorities in leadership positions does not end at law firms. The amicus briefs filed by former top military officials such as retired Gens. Anthony Zinni and Norman Schwarzkopf argued that there is a critical need for diversity in the military
The University’s case was well argued and well received by most of the justices. Students should be optimistic that the court will rule in favor of the University.