Future of affirmative action turns on Michigan case

3/30/2003

WASHINGTON — On Tuesday morning the nine men and women of the Supreme Court will convene to hear arguments on an issue that after more than two centuries still confounds the nation: race relations in America.

The politically explosive case is whether the University of Michigan's efforts to have a diverse student population are unconstitutional. On one side, President Bush and conservatives are aligned, passionately insisting the university's system of awarding points to minority students in the admission process is illegal. On the other side, legions of civil libertarians argue that “affirmative action” is not a dirty phrase and redress of society's past wrongs is essential.

The stakes are enormous, says Angelo Ancheta, director of legal and policy programs at The Civil Rights Project and a Harvard Law School lecturer. How the court rules, probably in late June or July, will have a major impact on higher education, elementary and secondary education, government contracts, and private-sector employment policies such as recruitment, hiring, promotions, and layoffs, he says.

“I'm not sure how the court is going to rule in this case, the issues are so complex,'' he said. More than 80 friend-of-the-court briefs by interested parties have been filed in the case.

The current president of the University of Michigan, Mary Sue Coleman, has been making the media rounds to insist it is impossible today to have a good university in America that is not diverse, meaning that people of all races must be included and that academic freedom is at stake.

“Now is not the time to turn back the clock,'' she argues repeatedly. “The color of your skin determines so many important things about your life experience — where you live, where you go to work and with whom you work. Race still matters in our society. The ideal of colorblindness does not mean we can or should be blind to that reality.”

The university is being supported by dozens of universities, colleges and education groups. Christopher Edley, Jr., Harvard law professor and member of the U.S. Commission on Civil Rights, says that the issues the university has to convince the court of are that racial diversity is a “compelling interest” for the government and the university that would justify racial preference and that the university's admissions policies are “narrowly tailored” to accomplish that.

In contrast, the plaintiffs in the case argue that the only time race should be a factor in admissions is to remedy the present effects of the university's past discrimination, which it must prove. Their supporters argue that the fairest way is to have a percent plan which guarantees admission to a state university, for example, to a fixed percentage of the highest ranking graduates of every high school in the state.

Opponents of Michigan's admissions procedure say that white students have to get past an unfair burden because all things being equal, a candidate's minority status can give him or her an advantage.

Mr. Bush, for example, asked the federal government to file a friend-of-the-court brief against the university. He said, on Martin Luther King's birthday in January, he decided his stand because he thinks it is unfair that at the undergraduate level, African American students and some Hispanic students and Native American students applying to the University of Michigan “receive 20 points out of a maximum of 150, not because of any academic achievement or life experience, but solely because they are African American, Hispanic, or Native American.

“To put this in perspective, a perfect SAT score is worth only 12 points in the Michigan system. Students who accumulate 100 points are generally admitted; so those 20 points awarded solely based on race are often the decisive factor.”

The Center for Individual Rights, which is supporting the plaintiffs against the University of Michigan, argues that over a six-year period, the odds of a minority applicant being accepted were 234 times greater than a nonminority applicant being accepted with the same grades and test scores. The center says that violates the constitutional guarantee of equal protection for all citizens.

Gov. Jeb Bush of Florida, the President's brother, had his state submit a brief opposed to Michigan. Any “race-based preferences are a form of discrimination, and they are wrong,'' he said.

Mr. Bush and his administration's arguments are that Michigan's policies are “fundamentally flawed'' as well as “divisive, unfair, and impossible to square with the Constitution.'' They did not, however, ask the court to strike down all references to race in admissions procedures.

The Congressional Black Caucus could not disagree more with the Bush administration and filed a friend-of-the-court brief in support of the University of Michigan. Rep. Elijah Cummings (D., Md.) said African-Americans attend college at half the proportion of white Americans.

Without affirmative action, he said, “The percentage of African-American students on many campuses would drop below 2 percent. Less than 10 percent of Hispanic-Americans go on to higher education, and only 6 percent of Hispanic-Americans ages 25 through 29 have bachelor's degrees.''

The University of Michigan has done a study indicating that instead of 15 percent minority enrollment, it would be 4 percent without its admissions policy.

Sen. Carl Levin (D., Mich.), who strongly supports Michigan's policy, argues that a point system for minorities is no different from the widespread practice of colleges and universities giving special consideration to children of alumni, large donors, public officials, under-represented parts of the state, athletes, and children of faculty and staff.

There actually are two 1997 cases before the court on Tuesday, Barbara Grutter vs. Lee Bollinger (former president of the university, who helped devise the system to improve diversity) and Jennifer Gratz and Patrick Hamacher vs. Bollinger. One was brought by a student denied admission to the law school, and the other involves two white students denied admission.

The policies at issue in the undergraduate case use a system that awards black, Hispanic, and American Indian applicants 20 points on a 150-point scale. The law school gives more individual consideration to applicants but looks at race and ethnicity in an attempt to bring about a “critical mass” of underrepresented minority students on campus. The university says the policies have resulted in combined black, Hispanic, and American Indian enrollments of 10 to 17 percent.

The court could uphold one policy or the other or strike down both or uphold both.

The U.S. 6th Circuit Court of Appeals in Cincinnati, which until two Bush nominees were just confirmed by the Senate has been one of the nation's most liberal, upheld the university's law school in a 5-to-4 decision. The rejected student appealed, and the other students appealed on grounds the circuit court has not yet ruled. The court took both cases.

The Supreme Court is not sitting as a blank slate.

In 1978, in a famous case, a divided court ruled in University of California vs. Bakke when a white man applying to medical school in California charged that he was a victim of reverse discrimination when he was rejected.

The school set aside 16 out of 100 slots for disadvantaged minority applicants. The court in that case outlawed such racial quotas but did not ban race outright as a factor in admissions, a somewhat nebulous guideline which has been used by universities for almost a quarter of a century.

In that case, Justice Lewis F. Powell said that a university's interest in promoting diversity within its student body is compelling and that a properly devised admissions program involving the competitive consideration of race and ethnic origin is constitutional. In other words, says Mr. Ancheta, an applicant's race may tip the balance in an admissions decision, but all applicants compete for the same seats in the entering class.

The court has to decide whether it still agrees that the Bakke case is good law.

A number of legal scholars say that this time Justice Sandra Day O'Connor will be the swing vote on the case, as she has been in a number of high-profile cases. They do not think she will rule to overturn Bakke but, on the other hand, know that she is a firm opponent of quotas or any kind of fixed percentage set aside for minorities. The University of Michigan insists it does not have quotas.

Justice O'Connor has been on the bench since 1981 and has voted a number of times in cases involving racial preferences, seeming to indicate that she is not convinced they are a good idea but is unwilling to ban them completely. She wants such cases subject to the legal theory of “strict scrutiny,” meaning that they must be “narrowly tailored” to conform to a “compelling government interest.” But while some say “strict scrutiny” really means “fatal in fact,'' or death to the policy under review, she does not necessarily think so.

In general, Justice O'Connor is not seen as a justice who likes to set broad new law. She and Justice Powell were close friends, and she respected his decisions.

That might mean she would support the university. But she is also on record in favor of having institutions try race-neutral means of diversity, which Texas, California, and Florida do, before they resort to race-conscious ones.

That might mean she could oppose the university's policies.

Mr. Edley says that the court should realize that society changes and evolves. He noted, for example, affirmative-action programs for women to be admitted to Harvard Law School, where he teaches, were once necessary.

But now, he said, they are no longer needed because the pool of applicants is diverse. In fact, there are now more women than men applying to law schools.

Patricia Gurin, a professor of psychology at the University of Michigan who has done research she says shows diversity to be a crucial aspect of campus life, said she cannot believe the court will rule against the university's policies. “Clearly, higher education is not ready to go back to 40 years ago, to a segregated system,'' she said.

Plaintiff Jennifer Gratz, now a 25-year-old software trainer who expects to be at the Supreme Court on Tuesday, told The Detroit News that she dropped her intention to become a doctor when she was rejected by the University of Michigan because it weakened her self-confidence.

She lost opportunities in life because of the rejection, she said. “Students every day are being treated unfairly.”