And the Winner Is . . . Affirmative Action

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Mary Sue Coleman, president of the University of Michigan, walks past the Supreme Court

For months now, many educators have feared the worst. They glumly figured that the Supreme Court would find that the University of Michigan's admission policy unfairly counted race as a factor. But that wasn't the case. The courts ruled in a split verdict that the undergraduate admissions policy was indeed unfair because it was too narrowly defined, but that the law school's affirmative action practice was constitutional.

On the most important issue in this case, the Court ruled 5-4, in Grutter v. Bollinger, that colleges and universities can continue to use race as long as they find less explicit ways to do so than the University of Michigan's undergraduate program, which rewarded minority applicants 20 points on a 100 point scale in the admission process. The Court said that Michigan's goal of a "critical mass" of minorities to ensure diversity was important enough to justify the use of race in admissions. Most colleges and universities say they use a more holistic approach which factors in race more generally by seeing it as a "plus" factor. This method is more like the University of Michigan's Law School, and the Court's ruling protects that practice as constitutional. For those who oppose affirmative action, the Court said that in 25 years it expects colleges and universities no longer to use racial preferences to create diversity. But that was little consulation. "It's an enormous victory for colleges and universities," said Sheldon Steinbach, general counsel for the American Council on Education, a national group that represents more than 1600 colleges and had filed a brief supporting the University of Michigan.

Clearly, there wasn't much for affirmative action opponents to cheer about. "A disaster," said Edward Blum, a senior fellow at the Center for Equal Opportunity, which had a filed a brief in the case opposing affirmative action.

Given that the Court has been so reluctant to revisit this issue — and spent several months mulling it over — both affirmative action opponents and supporters agree that this ruling firmly entrenches affirmative action in the law, at least until there is a radical change in the membership of the Court. For most colleges, the decision means that they can maintain their current admissions processes, which favor black, Hispanic and Native American applicants to ensure racial diversity. When the suits were filed, a few colleges stopped considering race at all in the admissions process, and it's likely they will adopt affirmative actions programs similar to that of the Michigan Law School. In addition, in Texas, Louisiana and Mississippi, where a 1996 federal court decision had banned the race of admissions, legal scholars say universities in those states will also bring back affirmative action now that it has the Supreme Court's approval.

As for the Court's decision to strike down Michigan's undergraduate affirmative action policy in Gratz v. Bollinger, the impact will be slight. Many scholars and college officials who support affirmative action had expressed private concerns about Michigan's undergraduate plan, which rewarded more points for being black, Hispanic or Native American than for a perfect score on the SAT. Not only did the five more conservative justices attack it, but Clinton appointee Stephen Breyer, nearly always in the liberal wing, also voted against the undergraduate plan. Some other large state universities had used point systems like the University of Michigan's undergraduate program, but shifted away from them since Michigan was sued in 1997. With the Court specifically declaring these point systems illegal, any college that still has one will immediately drop it. The decision will force Michigan and other state universities to have larger admissions staffs to read each application individually, which the Court advocates in its opinion.

And as for affirmative action opponents, Blum said he and other groups would continue to oppose race in admissions, but focus their attention on summer programs and scholarships that are given only to minorities. Other groups, too, may continue to file suits against college affirmative actions programs. Because the decision doesn't completely outlaw affirmative action or permit it in all cases, students are likely to file suit against other colleges, arguing that their affirmative action programs favors race too much and doesn't focus enough on the individual applicant as the Court calls on universities to do.

The decision in the Michigan cases had been widely anticipated. After the landmark 1978 Bakke case, in which the Supreme Court ruled that schools could practice affirmative action for the goal of having a diverse student body, but could not use quotas, affirmative action opponents have consistently chipped away at the policy. The Supreme Court has struck down a variety of set aside programs that gave special benefits to minority businesses over the last two decades, and the five justices that normally make up the Court's more conservative majority have been sharply critical of most considerations of race in any context. The Supreme Court wasn't alone in its concern about affirmative action. The State of California banned affirmative action in 1996 and a Federal court had outlawed preferences in college admissions in Texas, Louisiana and Mississippi.

Once the Court took the Michigan cases, both affirmative action supporters and opponents thought that it might strike the final blow to racial preference admissions policies. Justice Sandra Day O'Connor, often the swing vote on the Court, has expressed concerns repeatedly in opinions about how long affirmative action will be a viable remedy to help underrepresented minorities in business. But in today's ruling, she quoted from the former Justice Lewis Powell's Bakke opinion in arguing that diversity represented a "compelling state interest" which should be supported through affirmative action. Legal scholars say they weren't surprised by the decision, because they expected that while O'Connor would find the undergraduate program too rigid, she would not be willing to say race simply could not be a factor, as the Court's other four conservative members did. "Justice O'Connor wanted to stay in the basic universe Powell created," said University of Chicago Law Professor Cass Sunstein. Her opinion ensures that Powell's universe, in which race is a factor in admissions but can't be used in a quota or point system, will remain in place. "That precedent (Bakke) has now been codified into law," said Blum.