Split decision for choice-by race

Tax-supported universities may use race as a “plus factor” if they make individual choices about whom to admit, but the University of Michigan’s undergraduate point system “clearly fails” that constitutional test, the Supreme Court ruled yesterday.

In two decisions likely to prompt more litigation over exactly how much weight a school can give to race, a majority of the court upheld Michigan’s law-school admissions policy but struck down the university’s undergraduate formula.

“Student body diversity is a compelling state interest that can justify the use of race in university admissions,” the court said in a landmark 5-4 opinion, authored by Justice Sandra Day O’Connor, which upheld Michigan’s law-school system.

In rejecting a challenge under the 14th Amendment equal protection clause brought by white applicant Barbara Grutter, Justice O’Connor said constitutional law required an end date on race preferences, and she set that mark at 25 years.

Justice O’Connor’s opinion was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer in the first ruling ever in which a court majority held race to be a valid basis for admission to public institutions of higher education.

Dissenters were Chief Justice William H. Rehnquist, and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

However, by a 6-3 vote in the separate undergraduate case — Gratz v. Bollinger — the court overturned the system at Michigan’s College of Literature, Science, and the Arts, saying it assured “virtually automatic” admission for blacks, Hispanics and American Indians by giving them 20 of the needed 100 points on a 150-point scale. A perfect SAT or ACT score counted for 12 points.

In announcing from the bench that the undergraduate system violated both the Constitution and Title VI of the 1964 Civil Rights Act, the chief justice dismissed the school’s defense that it would be too burdensome to make the required case-by-case decisions.

“The fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system,” he said.

The chief justice was joined by the other three dissenters in Grutter v. Bollinger — Justices Scalia, Kennedy and Thomas — plus Justices O’Connor and Breyer, to overturn the Michigan point system.

Justices Stevens, Souter and Ginsburg dissented.

The opposing impact of the two decisions — one upholding affirmative action and one striking it down — and the lack of a clear standard for an acceptable program mean that further rounds of litigation are inevitable.

“I think we will move on to another phase of litigation and legislation,” said Miss Grutter, who filed the case against the law school.

President Bush paid homage to the courts’ statement “recognizing the value of diversity on our nation’s campuses,” but he resumed his administration’s stand that racial preferences virtually never were justified because colleges first must pursue several workable “race-neutral approaches.”

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