WASHINGTON – Considering a college applicant’s race is constitutional, the Supreme Court ruled in a 5-4 decision yesterday.
But in a 6-3 vote, it struck down the College of Literature, Science and the Arts’ policy of granting points for race.
The two judgments, which gave the University guidelines for how race can be used in its admissions systems, were the culmination of the six-year legal battle between the University and the rejected white applicants who sued it.
The court accepted the University’s argument that the need for a diverse student body justified affirmative action.
The scene outside the courtroom was reminiscent of the one two months ago, when oral arguments were heard in Grutter v. Bollinger and Gratz v. Bollinger.
Civil rights leaders and University officials held impromptu press conferences expressing their delight. University students and alumni living in Washington D. C. for the summer gathered to find out about the decision and some waited in long lines to obtain copies of the opinions.
“This is a victory today,” said Theodore Shaw, associate director-counsel of the National Association for the Advancement of Colored People. “This leaves the doors of opportunity for minority students.”
The decision was fortunate, given the current conservative makeup of the court, he said. Seven of the nine justices received their appointments from Republican presidents.
Writing for the majority in the Law School case, Justice Sandra Day O’Connor said the need for diversity justifies using race as an admissions factor, thus rejecting the claims made by the plaintiffs that race should never be considered as an admissions factor.
“Because universities, and in particular law schools, represent the training ground for a large number of the nation’s leaders … the path to leadership must be visibly open to talented and qualified individuals of every race and ethnicity,” her opinion states.
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 factors that may contribute to diversity are meaningfully 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 underrepresented minorities is a factual review to determine whether an individual is a member of one of these minority groups. … The LSA’s 20-point distribution 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 in a 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 President 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 signals. 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 University will “find the route that continues our commitment to a richly diverse student body.”
The court has provided the University with a “road map” for revising the LSA policy, stressing the need for a more individualized review process, Coleman said.
“We really don’t anticipate much difficulty in coming 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 Individual Rights, which represented the plaintiffs, also called the ruling a victory for opponents of affirmative action at a press teleconference.
“Today’s ruling is a mixed decision that signals 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 leaves 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 ambiguity 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 questioned 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-conscious 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 little unusual, and I don’t think it stands for a 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 admissions 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 a press conference at the Diag.
“Affirmative action has been upheld, Bakke has been deemed good and we move forward today knowing that we are moving in the right direction,” Michigan Student Assembly President Angela Galardi said. “The Court upheld the principle while critiquing the process.”
But recent University graduate James Justin Wilson, 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 ambiguous precedent in Bakke. Now they won’t tell us how they create a 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 principle 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.