Supreme Ct Decision on Univ of Mich Affirmative Action

http://www.washingtonpost.com/wp-dyn/articles/A22942-2003Jun23.html
Supreme Court Excerpts

The Associated Press
Monday, June 23, 2003; 12:16 PM


Below are excerpts from the Supreme Court's decisions in Gratz v. Bollinger, on affirmative action admissions policies at the University of Michigan's undergraduate school. The court found the undergraduate system unconstitutional in a 6-3 decision released Monday:

JUSTICE SANDRA DAY O'CONNOR, writing for the majority:

"Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it. As we have explained, 'whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection'...

...Not every decision influenced by race is equally objectionable and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decision maker for the use of race in that particular context...

...We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition... Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School's proper institutional mission...

...These benefits are substantial. As the District Court emphasized, the Law School's admissions policy promotes 'cross-racial understanding,' helps to break down racial stereotypes, and 'enables (students) to better understand persons of different races'...

...In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and 'better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals'...

...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. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools 'cannot be effective in isolation from the individuals and institutions with which the law interacts'... Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.

CHIEF JUSTICE WILLIAM REHNQUIST, writing for the dissent:

"I do not believe that the Constitution gives the Law School such free rein in the use of race. The Law School has offered no explanation for its actual admissions practices and, unexplained, we are bound to conclude that the Law School has managed its admissions program, not to achieve a 'critical mass,' but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls 'patently unconstitutional'...

...Finally, I believe that the Law School's program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School's use of race in admissions. We have emphasized that we will consider 'the planned duration of the remedy' in determining whether a race-conscious program is constitutional... Our previous cases have required some limit on the duration of programs such as this because discrimination on the basis of race is invidious.

...The Court suggests a possible 25-year limitation on the Law School's current program. ... Respondents, on the other hand, remain more ambiguous, explaining that 'the Law School of course recognizes that race-conscious programs must have reasonable durational limits, and the Sixth Circuit properly found such a limit in the Law School's resolve to cease considering race when genuine race-neutral alternatives become available'... These discussions of a time limit are the vaguest of assurances. In truth, they permit the Law School's use of racial preferences on a seemingly permanent basis. Thus, an important component of strict scrutiny - that a program be limited in time - is casually subverted.

JUSTICE CLARENCE THOMAS, in a separate dissent:

"Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today's majority:

'(I)n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us... . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ...And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ...(Y)our interference is doing him positive injury'...

...Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School. The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination.'

JUSTICE ANTONIN SCALIA, in a separate dissent:

"The 'educational benefit' that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of 'cross-racial understanding'... and 'better prepar(ation of) students for an increasingly diverse workforce and society'... This is not, of course, an 'educational benefit' on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law - essentially the same lesson taught to (or rather learned by, for it cannot be 'taught' in the usual sense) - people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens.

If properly considered an 'educational benefit' at all, it is surely not one that is either uniquely relevant to law school or uniquely 'teachable' in a formal educational setting. And therefore: If it is appropriate for the University of Michigan Law School to use racial discrimination for the purpose of putting together a 'critical mass' that will convey generic lessons in socialization and good citizenship, surely it is no less appropriate - indeed, particularly appropriate - for the civil service system of the State of Michigan to do so... And surely private employers cannot be criticized - indeed, should be praised - if they also 'teach' good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring.

CHIEF JUSTICE WILLIAM REHNQUIST, writing for the majority:

"Justice Powell's opinion in Bakke emphasized the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual's ability to contribute to the unique setting of higher education. The admissions program Justice Powell described, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity... Instead, under the approach Justice Powell described, each characteristic of a particular applicant was to be considered in assessing the applicant's entire application...

...The current... policy does not provide such individualized consideration. The... policy automatically distributes 20 points to every single applicant from an 'underrepresented minority' group, as defined by the University. The only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice Powell's example, where the race of a 'particular black applicant' could be considered without being decisive... the automatic distribution of 20 points has the effect of making 'the factor of race ...decisive' for virtually every minimally qualified underrepresented minority applicant...

...We conclude, therefore, that because the University's use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents' asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment."

JUSTICE RUTH BADER GINSBURG, writing for the dissent:

"In the wake 'of a system of racial caste only recently ended'... large disparities endure. Unemployment, poverty and access to health care vary disproportionately by race. Neighborhoods and schools remain racially divided. African-American and Hispanic children are all too often educated in poverty-stricken and underperforming institutions. Adult African-Americans and Hispanics generally earn less than whites with equivalent levels of education. Equally credentialed job applicants receive different receptions depending on their race. Irrational prejudice is still encountered in real estate markets and consumer transactions. 'Bias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country's law and practice'...

...The racial and ethnic groups to which the College accords special consideration (African-Americans, Hispanics and Native-Americans) historically have been relegated to inferior status by law and social practice; their members continue to experience class-based discrimination to this day. There is no suggestion that the College adopted its current policy in order to limit or decrease enrollment by any particular racial or ethnic group, and no seats are reserved on the basis of race...

...The stain of generations of racial oppression is still visible in our society, and the determination to hasten its removal remains vital. One can reasonably anticipate, therefore, that colleges and universities will seek to maintain their minority enrollment - and the networks and opportunities thereby opened to minority graduates - whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage. For example, schools may encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language... If honesty is the best policy, surely Michigan's accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises."

JUSTICE DAVID SOUTER, in a separate dissent:

"The one qualification to this description of the admissions process is that membership in an underrepresented minority is given a weight of 20 points on the 150-point scale. On the face of things, however, this assignment of specific points does not set race apart from all other weighted considerations. Nonminority students may receive 20 points for athletic ability, socioeconomic disadvantage, attendance at a socioeconomically disadvantaged or predominantly minority high school, or at the Provost's discretion; they may also receive 10 points for being residents of Michigan, 6 for residence in an underrepresented Michigan county, 5 for leadership and service, and so on.

The Court nonetheless finds fault with a scheme that "automatically" distributes 20 points to minority applicants because 'the only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups'... The objection goes to the use of points to quantify and compare characteristics, or to the number of points awarded due to race, but on either reading the objection is mistaken.

The very nature of a college's permissible practice of awarding value to racial diversity means that race must be considered in a way that increases some applicants' chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race. Justice Powell's plus factors necessarily are assigned some values. The college simply does by a numbered scale what the law school accomplishes in its 'holistic review'... the distinction does not imply that applicants to the undergraduate college are denied individualized consideration or a fair chance to compete on the basis of all the various merits their applications may disclose."

 

http://www.washingtonpost.com/wp-dyn/articles/A22805-2003Jun23.html
Court Limits Race As Factor in Admissions


By ANNE GEARAN
The Associated Press
Monday, June 23, 2003; 11:20 AM


WASHINGTON - In two split decisions, the Supreme Court on Monday ruled that minority applicants may be given an edge when applying for admissions to universities, but limited how much a factor race can play in the selection of students.

The high court struck down a point system used by the University of Michigan, but did not go as far as opponents of affirmative action had wanted. The court approved a separate program used at the University of Michigan law school that gives race less prominence in the admissions decision-making process.

The Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body," Justice Sandra Day O'Connor wrote.

The court divided in both cases. It upheld the law school program that sought a "critical mass" of minorities by a 5-4 vote, with O'Connor siding with the court's more liberal justices to decide the case.

The court split 6-3 in finding the undergraduate program unconstitutional. Chief Justice William H. Rehnquist wrote the majority opinion in the undergraduate case, joined by O'Connor and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Stephen Breyer.

Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg dissented.

Government has a compelling interest in promoting racial diversity on campus, but the undergraduate school's admissions policy is not the way to get there, the court majority said.

"The university's policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single underrepresented minority applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity," which Michigan claimed justified the policy, Rehnquist wrote.

The ruling affects tax-supported schools, and by extension private schools and other institutions, that have looked for ways to boost minority enrollment without violating the Constitution's guarantee against discrimination.

The University of Michigan cases are the most significant test of affirmative action to reach the court in a generation. At issue was whether racial preference programs unconstitutionally discriminate against white students.

The rulings follow the path the court set a generation ago, when it outlawed quotas but still left room for schools to improve the odds for minority applicants.

The two Michigan cases directly address only admissions at public, tax-supported institutions. But the court's rationale is expected to have a wide ripple through private colleges and universities, other government decision-making and the business world.

"This court has long recognized that 'education is the very foundation of good citizenship,'" O'Connor wrote, quoting from the landmark Brown v. Board of Education ruling of nearly 50 years ago.

"For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity," O'Connor wrote. "Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized."

Opponents of affirmative action had hoped the Supreme Court would use this opportunity to ban most consideration of race in any government decisions. The court is far more conservative than in 1978, when it last ruled on affirmative action in higher education admissions, and the justices have put heavy conditions on government affirmative action in other arenas over the past decade.

Defending its general approach to affirmative action, the university has said that having what it calls a critical mass of minority students benefits the whole student body. Minorities must be present in more than token numbers to ensure all students can interact, the university has said.

Rehnquist dismissed that rationale in a dissenting opinion in the law school case.

"Stripped of its 'critical mass' veil, the law school's program is revealed as a naked effort to achieve racial balancing," Rehnquist wrote.

Michigan insists that it accepts only academically qualified students, no matter what their race.

Michigan's undergraduate school used a 150-point index to screen applicants. The 20 points awarded to minorities was more than the school awarded for some measures of academic excellence, writing ability or leadership skills. Outstanding athletes also got 20 points, as did impoverished applicants.

The school has also "flagged" minority applications, making it easier to keep an applicant in the pool even if he or she flunked an initial review.

In 1997, the year that two white students sued, the school had 13,500 applicants and selected 3,958 of them as freshmen.

The white plaintiffs, Jennifer Gratz and Patrick Hamacher, were Michigan residents with good grades and other qualifications when they were rejected at the flagship Ann Arbor campus. Both have since graduated from other colleges.

The Bush administration sided with the students, but did not call for an outright end to affirmative action.

The students were supported by a range of conservative legal groups, some law professors and affirmative action opponents.

The university's law school program uses a separate, less structured system to promote minority enrollment.

The law school case is Grutter v. Bollinger, 02-241; the undergraduate case is Gratz v. Bollinger, 02-516.