Twenty-five years after it last ruled on racial preferences in university admissions, a divided Supreme Court today waded back into the emotional dispute over the future of affirmative action. Some on both sides had hoped the court would finally clarify the murky precedent it had set in the 1978 Bakke case, which said that schools could use race as a "plus" factor in admissions, but could not rely on fixed quotas or two-track admissions systems.
But today's decisions in two cases essentially uphold the status quo. The court backs Bakke's vague support for race-based preferences, but strikes down a plan it said came too close to reverse discrimination. The justices-splitting along predictable conservative-liberal lines-uphold the admissions program at the University of Michigan law school, ruling 5-4 in Grutter v. Bollinger that diversity is a "compelling state interest" that justified the school's attempt to achieve a "critical mass" of minorities. But in a second 6-3 decision, Gratz v. Bollinger, the justices reject Michigan's undergraduate admissions program that relied on a "point" system to give minority applicants extra credit-an approach the court said made race the decisive factor.
Writing for the majority in the law school case, Associate Justice Sandra Day O'Connor says that the law school "has a compelling interest in attaining a diverse student body." She cites the "substantial" benefits of diversity in education-including societal benefits to American businesses and the U.S. military. She calls the law school's program a "highly individualized, holistic review of each applicant's file" and says that its aim for a "critical mass" of minorities does not constitute a quota or two-track admissions system barred by Bakke.
O'Connor says that the law school "sufficiently considered" race-neutral options as alternatives. She also questions advocates of so-called "percentage plans" that guarantee admission to all high school students who achieve a certain class rank. And she says it's not clear how such plans could work for graduate and professional schools. Finally, O'Connor stresses that "race-conscious admissions must be limited in time" and states the hope that in 25 years from now, the use of racial preferences will no longer be necessary. She notes that the court expects the law school to end its race-conscious program "as soon as practicable." Associate Justices Stevens, Souter, Ginsburg and Breyer agreed.
In four dissenting opinions, the conservative bloc of justices objects to the majority reasoning. Associate Justice Antonin Scalia calls the "mystical" law school program "a sham to cover a scheme of racially proportionate admissions" and says that "today's Grutter-Gratz split double header seems perversely designed to prolong the controversy and litigation." He says universities that "talk the talk" of diversity and multiculturalism but provide minority-only student organizations, separate housing or minority-only student centers may be especially vulnerable to court challenges. And Associate Justice Clarence Thomas quotes Frederick Douglass on self-sufficiency and asserts that "blacks can achieve in every avenue of American life without the meddling of university administrators." Chief Justice William Rehnquist and Associate Justice Anthony Kennedy also dissent.
In the undergrad case, Rehnquist writes for the majority, explaining that while the court has rejected the notion that diversity cannot be a compelling state interest, it finds that the university's point system was not "narrowly tailored" enough. In a concurring opinion, O'Connor calls the point system "mechanized" and says it "automatically determines the admissions decision for each applicant." Conservatives Kennedy, Scalia and Thomas agree with the majority, as does the more liberal Breyer.
In a dissent, Souter complains that supposedly race-neutral alternatives like percentage plans "are just as race conscious as the point scheme...but they get their racially diverse results without saying directly what they are doing or why they are doing it." Souter adds he would be tempted to "give Michigan an extra point for frankness" and says, "Equal protection cannot be an exercise in which the winners are the ones who hide the ball." Stevens and Ginsburg also dissent.
Both sides were quick to claim victory. Michigan president Mary Sue Coleman pronounced herself happy with the rulings and said, "they've given us a roadmap for changing our undergraduate system." Ted Shaw of the NAACP Legal Defense Fund acknowledged there both supporters and opponents would spin the rulings, but pointed out that the "doomsday scenario" of a ban on racial preferences had not come to pass. "What this does is leave the doors of opportunity open," he said. "This court did not want to turn the clock back."
But Terry Pell, president of the Center for Individual Rights, vowed that today's rulings were not the last word on the subject. "What we're seeing today is the beginning of the end of race in admissions," he said. "Overall this is a big step forward." Pell predicted that the rulings will make it harder for schools to find ways to consider race without facing court challenges. "It's going to be legally risky for schools to try to rely on the law school system," he said. "They will be challenged."
The scene on the Supreme Court steps this morning was considerably more serene than it was April 1, the day the two cases were argued, when thousands of students showed up to demonstrate, mostly in favor of keeping affirmative action intact. Few arrived to cheer or protest today. One who did, Adam Dancy, will be a senior in Michigan's undergrad program this fall. Though Dancy hoped the court would end racial preferences altogether, he sounded most disappointed at the split verdict. "They've muddied the issue for 25 more years," said Dancy, holding a hastily-penned "RACISM UPHELD" sign and wearing a Michigan T-shirt over his blue dress shirt. (He ran over to the court from his Capitol Hill internship after hearing the decision on TV.) "They haven't clarified anything," he says. Well, maybe one thing: the nation's long struggle with racial preferences is far from over.