As the U.S. Supreme Court prepares to hear arguments in the lawsuits against the University’s use of race-conscious admissions policies, recent Supreme Court rulings regarding the use of affirmative action may serve as predictors of the fate of university admissions.
“Without exception, the Court has been very reluctant to allow state institutions in particular to use racial and ethnic classifications,” said Roger Klegg, general counsel for the Center for Equal Opportunity, a Virginia-based think tank opposed to the use of race in admissions.
“The general rule is that any racial or ethnic classification is presumptively illegal.”
In addition, Justice Sandra Day O’Connor, who will most likely be the swing vote in the University’s cases, has rejected the use of affirmative action in previous cases and wrote the Court’s opinions in two other cases questioning affirmative action.
Klegg said this makes it very likely she will vote against affirmative action again in both of the University’s lawsuits.
While O’Connor has shown an awareness of the problems inherent to affirmative action, the fact that she has typically stood on the side of former Justice Lewis Powell could mean that she will not vote for the University said Robert Post, a law professor at the University of California at Berkeley.
In Regents of the University of California v. Bakke, Powell invalidated the University of California at Davis’ use of a quota system as part of its admissions policy, and specified the extent to which race could be used as a factor in admissions. But the University of Michigan maintains that it does not use quotas.
Post said he believes O’Connor will similarly strike down the University of Michigan’s use of race as a factor in its admissions policies and place more stringent constraints upon its use at universities nationwide.
“She’ll make it a little harder to do, but she’ll still allow you to do it,” he said, adding that she will use the University’s cases to provide a recipe for the future use of affirmative action.
Although she seems to have created a voting pattern, Georgetown University law Prof. Susan Bloch said O’Connor’s vote in the cases cannot be predicted with certainty.
“She believed in very case-by-case specific analysis,” she said. “I don’t think with her you can generalize.”
Analysts added that proving such classifications necessary is an uphill battle in which parties must prove there is no way to achieve their purpose without considering race.
Past cases may also foreshadow how the Court will vote. In 1989, the Court, in City of Richmond v. J.A. Croson Co. invalidated the state of Virginia’s requirement that non-minority-owned contractors set aside a certain percentage of contracts for minority subcontractors on the grounds that it violated the 14th Amendment’s equal protection clause.
The use of affirmative action in the area of contracting preferences was further clarified in Adarand Constructors, INC. v. Pena, the Court’s most recent decision involving racial classifications.
At the time, most federal contracts contained a compensation clause, which provided contractors a financial incentive to hire socially and economically disadvantaged subcontractors.
The Court said in Croson that strict scrutiny – the highest level of judicial examination – must be applied to all race-based action by state and local governments, and in Adarand it extended this heightened standard of review to apply to federal action.
The Court did not rule on the constitutionality of the race-based contracting clause, but instead remanded it to lower-court review under the strict scrutiny standard.
“In Adarand, the Supreme Court said racial classifications used by the federal government would be subject to strict scrutiny,” Klegg said.
He added that the Court has indicated in both Croson and Adarand that preferential treatment in the area of employment should be approached cautiously.
The Court’s application of strict scrutiny has placed a heavy presumption against the constitutional validity of federal or state action when race is involved.
“When they were using strict scrutiny they struck down most programs,” Bloch said.
Klegg said the Court’s skepticism with regard to affirmative action is further illustrated in the 1997 Board of Education of the Township of Piscataway v. Taxman.
The issue argued in the case was whether it was constitutional for a school to dismiss an equally qualified white teacher in favor of a black teacher in order to maintain its racially diverse educational environment.
Various civil rights organizations were nervous the Supreme Court would rule against the school district, which Klegg said was the reason the case was settled out of court before the Court could reach a decision in the case.
“The fact that that happened shows … how even the other side recognizes that this is a Court that looks at racial discrimination with a jaundiced eye,” he said.
In looking to decisions in recent cases relating to education, Post said the Court has said race can be used only if there are assurances that its use serves a compelling interest.
He said the Court’s decision in Bakke found diversity to be a compelling interest and it is on this point that the future of the University’s admissions policies rests.
“The Court has been hostile on affirmative action, although it has permitted it to proceed,” Post said. “The crucial question is whether (diversity) remains a compelling interest.”