Not out of the woods yet - Last Word - Affirmative action rulings leave opening for further debate - Gratz v. Bollinger case cited

Black Issues in Higher Education, July 17, 2003 by Willyerd R. Collier, Sr.

Now that the U.S. Supreme Court has ruled in Grutter v. Bollinger that the University of Michigan had a compelling interest in obtaining the educational benefits that flow from a diverse student body, critics of affirmative action have been handed a major defeat in their ongoing efforts to block race-sensitive programs designed to address the practice or lingering effect of racial discrimination in America. However, if the press reports from representatives of the Center for Individual Rights are correct, the attacks on race-sensitive affirmative action programs are not over.

The 14th Amendment to the Constitution requires the government to satisfy both tiers of the "strict scrutiny test" when race is used. First, there must be a compelling governmental interest. Second, the use of race must be narrowly tailored. The legal significance of Grutter is that the majority of the court has endorsed the view first articulated by Justice Lewis Powell in Bakke v. Board of Regents, that diversity in higher education is a compelling interest under the first tier of the strict scrutiny test. In so doing, the Supreme Court has destroyed the legal rational in Hopwood v. Texas which has been effectively used by opponents of affirmative action to block efibrts at both public and private universities in developing or sustaining affirmative action programs.

Supporters of affirmative action across the nation owe a huge debt to the University of Michigan for not rolling over and accepting claims from opponents that the Bakke ruling was no longer good law. It is clear that opponents of affirmative action will continue to attack race-sensitive programs on the grounds that they are not narrowly tailored as required under the second tier of the strict scrutiny test. Given the fiscal constraints affecting higher educational institutions, it is likely that many colleges and universities will not voluntarily enact new or revise old race-sensitive initiatives. Therefore, while supporters of affirmative action can not be blamed for breathing a collective sigh of relief as a result of the decision in Grutter, we are out not out of the woods yet.

Critics of affirmative action are trying to minimize the impact of the ruling in Grutter. First, they note the 5 to 4 split among the justices. Second, they note the court voted 6 to 3 against the University of Michigan in Gratz v. Bollinger, the companion case that dealt with undergraduate admissions. Third, they note that the only Black justice on the court voted against the University of Michigan in both cases. After reading the Supreme Court's decision in another case, Adarand v. Pena, which struck down the affirmative action plan that set aside business or minority and women owned construction firms, neither supporters nor critics of affirmative action were surprised at the votes of the justices who voted against the University of Michigan. It is amusing to watch critics of affirmative action attempt to denigrate Justice Sandra Day O'Connor and insinuate that the 5 to 4 decision that she wrote in Grutter is entitled to less weight or support than the 5 to 4 decision that she wrote in Adarand.

Now that Grutter is on the books, it is high time that public and private universities truly committed to diversity step up and follow the lead of the University of Michigan. This is particularly true in states with documented histories of racial discrimination and critical masses of qualified people of color within their state boundaries. It will be interesting to watch and see whether aspirants for the White House and other federal and state elected offices in 2004 will try to hide behind the word "quota." It will be even more interesting to see if those of us who support affirmative action will let them.

--Willyerd R. Collier Sr. is director of affirmative action at the University of Arkansas, Fayetteville.