- The Washington Times - Monday, June 23, 2003

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.”

“There are innovative and proven ways for colleges and universities to reflect our diversity without using racial quotas,” the president said.

Terence J. Pell, head of the Center for Individual Rights, which represented the white students in both cases, acknowledged defeat in an attempt to prevent admissions officers from using race but said it would be harder to do in the future.

“We are seeing the beginning of the end for racial preferences,” Mr. Pell said.

Education groups reveled in the Grutter ruling that said states had a compelling interest to assure a university student body was racially diverse, and minimized the 6-3 ruling that struck down Michigan’s methods, which they had defended staunchly.

“While the court struck down the particular means employed by the University of Michigan to achieve diversity in the undergraduate case, we are extremely pleased to see that all of the majority and concurring opinions of the justices hold to the same three principles set forth [in our amicus brief],” said a joint statement by 28 of the 50 higher-education groups that filed a joint brief defending the Michigan system.

“Although the court rejected the manner in which race was considered by the undergraduate school, it made clear that race could be considered as one factor in the admissions process. This is a tremendous victory,” said Vincent Warren, an American Civil Liberties Union staff lawyer who worked on the Michigan cases.

“It is very gratifying to have the outcome we had today,” said Lee Bollinger, former University of Michigan president and now president of Columbia University, who was the named respondent in both lawsuits.

The current University of Michigan president, Mary Sue Coleman, called the decision “a resounding affirmation that will be heard across the land from our college classrooms to our corporate boardrooms.”

The outcome was praised by some 65 Fortune 500 companies and dozens of former military leaders. Both groups filed friend-of-the-court briefs that said they depended on diverse colleges to provide leaders, a tone that Justice O’Connor adopted in her opinion.

“In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity,” she wrote.

Solicitor General Theodore Olson told the court April 1 that the federal government would examine race-based policies at the U.S. military academies at West Point, Annapolis and Colorado Springs after the Michigan decision.

Frank Morris, a Washington lawyer who specializes in employment law, said the decisions will affect businesses in ways that go beyond a rich pool of job seekers.

“To the extent that employers have any system which assigns numeric or quantifiable values for various factors, including race, these would be immediately suspect and dangerous,” Mr. Morris said.

In the court-approved system, the law school avoided the onus of quotas by saying it sought a “critical mass” of diversity. The court found that from 1993 to 2000 the percentage of each class that included blacks, Hispanics and American Indians ranged from 13.5 percent to 20.1 percent.

One educator yesterday defined “critical mass” as enough students of a particular race that they would feel comfortable acting as individuals.

Justices Scalia and Thomas called it a myth and a fable, seconding Chief Justice Rehnquist, who termed the system is “a naked effort to achieve racial balancing.”

“As [the chief justice] demonstrates, the University of Michigan Law School’s mystical ‘critical mass’ justification for its discrimination by race challenges even the most gullible mind. The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions,” Justices Scalia and Thomas wrote.

Yesterday’s two rulings punctuated 25 years of conflicting decisions since the high court ordered California to admit Allan Bakke to medical school. Although he scored in the top 40 among 500 applicants, Mr. Bakke, who is white, was rejected in favor of a minority student.

Six opinions in that 1978 order ruled out quotas. Justice Lewis Powell wrote the plurality opinion with four votes advocating use of race as an additional factor in admission decisions. Plurality opinions are not binding.

Calling race preference by the state “the most divisive of all policies,” Justice Kennedy yesterday attacked the piecemeal way Justice Powell’s decision was applied by a court whose five votes would bind all federal and state courts.

Over the years, federal appeals courts have split on how to apply Bakke. In the 1996 Hopwood v. Texas case, the 5th U.S. Circuit Court of Appeals ruled that a state had no compelling interest in racial diversity among students. Four years later, the 9th Circuit ruled that it did, in Smith v. University of Washington Law School.

Although private colleges generally are not bound by constitutional decisions restricting government powers, most accept federal funds that subject them to the 1964 Civil Rights Act provision upheld yesterday.

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