It’s official: Universities may use race as a factor in admissions – they just may have to hire more admissions officials to do it.
That is the consensus of the two majority opinions handed down by the U.S. Supreme Court yesterday morning in the cases Grutter v. Bollinger and Gratz v. Bollinger. In the opinions, written by Justice Sandra Day O’Connor and Chief Justice William Rehnquist, respectively, the Supreme Court upheld the Law School’s admissions system but struck down the system used by the College of Literature, Science and the Arts, saying that it looked too much like a quota.
“This is a huge win for higher education and for Michigan,” said Douglas Laycock, a law professor at the University of Texas. “The law school case is a green light, and I think any school that cares can comply with that opinion and consider race … It’s simply a matter of putting enough people in the admissions office to read the whole file.”
“Either you can have an affirmative action plan that works, or you can’t. That’s what the fight was about,” he added. “Supporters of affirmative action won, and the opponents lost.”
Experts added that the opinion against the point system used by the LSA would only affect a small percentage of higher education institutions – large, competitive schools which, like the University, receive tens of thousands of applications per year.
The decision in the Law School case will be far more reaching, they said, since many smaller schools take race into account in admissions.
“I think it is a small price to pay for preserving openness to universities for disadvantaged minorities,” Georgetown University law Prof. David Cole said.
The constitutionality of considering race in admissions has been under deep scrutiny since the Supreme Court’s 1978 decision in Regents of the University of California vs. Bakke, which challenged a quota system used by the University of California at Davis medical school.
In its final ruling in Bakke, the court held six different opinions and was split four to four, with four justices upholding affirmative action in order to remedy past discrimination and the other four justices declaring it unconstitutional. Justice Lewis Powell was the deciding factor, and his concurring opinion – which declared quota systems unconstitutional but also declared diversity to be a compelling state interest – was mixed.
In the last 25 years, lawsuits challenging the Bakke decision have propped up all over the country, and opponents of affirmative action have successfully won their battles. The 5th and 11th circui tcourts of appeals have previously declared race-conscious admissions policies used at the University of Texas and the University of Georgia unconstitutional.
But legal experts from around the country said the opinions issued would leave no room for second guessing, adding that the Supreme Court opinion will now overturn the opinions made by lower courts.
“I think that despite the fact that it’s a split decision for the University, it is a ringing victory for affirmative action, because the court holds – for the first time – that diversity is a compelling state interest,” Cole said. “In Bakke, there was no decision for the court. There was a single decision by Justice Powell, but no other justice joined his opinion, so the standing of that decision was a matter of serious dispute.”
Still, although the court ruled in favor of allowing race to be used as a preference in admissions, legal experts say that the justices have actually shown a decline in the number of reasons why they accept affirmative action.
In Bakke, four justices favored the use of race based on a number of different reasons, including remedying past discriminations, reducing the historical deficit of disfavored minorities in the medical profession, increasing the number of educated minorities to practice medicine within their own communities and achieving diversity. Powell rejected three of those rationales.
But in the Grutter decision, the five justices who concurred to form the majority opinion agreed that the importance of diversity is the only reason universities should take race into account while making admissions decisions.
“We do not find it necessary to decide whether Justice Powell’s opinion is binding,” O’Connor wrote in the court’s majority opinion. “Today we endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.”
Although the question of whether diversity is a compelling state interest – meaning that diversity in and of itself is a justifiable reason for taking race into account – has finally been put to bed, legal experts said only time will tell whether lawsuits like those against the University’s admissions policies will lay to rest, and for how long.
“Whether there are going to be lawsuits in the future depends on the people who are going to file them. I think for the moment anyway, the lawsuits challenging diversity are doomed to fail in the Supreme Court,” said University of California at Los Angeles law Prof. Kenneth Karst. “But individual schools have different programs … the more (the system) looks like a quota, the less likely it is to succeed.”
Experts added that so long as universities and colleges review an applicant’s entire file on a case-by-case basis, they should not be targets of lawsuits.
“The court gives fairly clear guidance about what you have to do to avoid liability in such lawsuits,” Cole said. “There is a road map there. As long as universities follow that road map, I don’t think they should fear a large number of lawsuits.”
Time and a change in the court’s structure could change that, however. Three of the justices – Rehnquist, O’Connor and John Paul Stevens – are older than 70, and media reports in the last several months have mentioned the possibility of some retirements, including Rehnquist and O’Connor, the authors of yesterday’s two majority opinions.
If it takes place while a conservative president is serving, a retirement by any members who concurred with O’Connor – a list that includes Stevens – could change the nature of the court. But experts could not say when or how the court’s makeup will be changing in the near future.
“I think it’s predictable that Justice Stevens will not be retiring … they may have to carry him out of there,” Karst said. “Justice O’Connor, when she wrote her book, dedicated it to her clerks, past, present and future.”
“People are going to be encouraged to bring lawsuits if they think that there are going to be people who are receptive at the top of judicial system,” he added.
Exactly how long race-conscious admissions policies will thrive is anyone’s guess, and the court’s opinion included its own based on the success of the last 25 years: another 25 years.
Since 1978, Karst said not only have the numbers and percentages of admitted minorities increased, but the numbers and percentages of successful minorities and minority leaders has risen as well. The idea of diversity has also spread outside of education, including into businesses and the military, he added.
“If the minority community is going to be providing half your legislature and half your community leaders, it’s essential that they are educated at the best schools, and the court picked up on that,” Karst said. “Of the people who actually have to run an institution, there is hardly anybody who thinks they can do it without diverse leadership,”
But in the opinion, O’Connor wrote that she believes the Law School and other higher education institutes will eventually stop using race totally.
“We take the Law School at its word that it would ‘like nothing better than to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable,” the opinion states. “It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education.
“Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” the opinion went on to say.
Experts said the figure is not binding, and that it will depend on where the country is in 2028.
“I think she’s making a kind of prediction. It’s been 25 years since Bakke, and after another 25 years, we’ll hope there will have been significant diversification of colleges and that we won’t have to have it any more,” Karst said.