The battle for affirmative action: as higher education awaits a Supreme Court ruling, the debate over racial diversity rages on - Cover Story

University Business, May, 2003 by Tim Goral

Now it's in the hands of the court. As this issue of University Business goes to press, the fate of affirmative action in higher education is awaiting a ruling by the U.S. Supreme Court. The court's decision--that is, whether or not the University of Michigan's undergraduate and law school admissions policies violate the U.S. Constitution--could have long-lasting effects on admissions policies at dozens of selective colleges and universities, as well as on scholarship programs, university recruitment, and K-12 education policies. And it may ultimately play a role in how employees are recruited and hired in the corporate world.

The court is expected to deliver a ruling by late June, but after the April 1 hearing, even veteran court watchers, as well as sources contacted for this article, were left wondering how it will all turn out. The last time the court addressed affirmative action in higher education was in the landmark 1978 University of California v. Bakke case. Then, the court held that the use of race as a factor in higher education admissions--which forms the basis of U Michigan's policy--was constitutional But times, and external pressures, have changed over the last 25 years. Leading the charge against affirmative action are several conservative organizations with close ties to the Bush administration, including the Center for Individual Rights (CIR), the Center for Equal Opportunity (CEO), and the American Civil Rights Institute (ACRI). The CTR is representing Barbara Grutter, Jennifer Gratz, and Patrick Hamacher, three white students who claim they were denied admission in favor of less qualified minority applicants. The plaintiffs contend that the interest of promoting diversity is not sufficiently compelling to justify race as a determining factor in admissions.

The court may vote to uphold the Bakke decision or to overturn it. It may also modify that law or perhaps develop new standards for considering race in university admissions policies. Most observers agree that the nine-member court is closely divided, and the case could turn on one vote.

"Justice Sandra Day O'Connor's vote is the key," says Nathaniel Persily, a law professor at University of Pennsylvania. O'Connor's past affirmative action rulings show an ambivalence that reflects the feelings of society as a whole, he told University Business. "All the recent affirmative action rulings have been 5-4 decisions. While striking down affirmative action programs, particularly in employment, she has also allowed some exceptions to a general constitutional bar on affirmative action."

The question in the case currently before the court, Persily says, is whether the diversity rationale in education will be one of those exceptions that O'Connor is willing to make to the more general bar on affirmative action. "Although it's possible that the court will strike down the University of Michigan program," he adds, "it is also possible that Justice O'Connor will create a small exception that doesn't completely close the door on affirmative action in higher education."

Leading up to the hearing, a record 66 amicus briefs were filed supporting U Michigan's policy. More than 80 colleges and universities filed individual briefs or co-signed other briefs. They were joined by 83 briefs filed on behalf of Fortune 500 companies that expressed concern about the ability to compete globally without a diverse and racially conscious workforce. Significantly, a brief filed by a group of retired military officers--including General Norman Schwarzkopf and former members of the Joint Chiefs of Staff--sought to demonstrate how a reverse of affirmative action programs would be detrimental to the military. The group pointed to the many problems faced by the military during the Vietnam War, when the lack of high-ranking minority officers had caused deep racial tensions within the ranks.

These briefs do have an influence in some cases, Persity says, but perhaps not in this one. "This is not a difficult issue. It's only difficult to the degree that the principles are difficult. I think all the justices knew, going in, how they felt about this issue, and the facts and the arguments are likely not going to affect how they feel," he says.

Anatomy of an Admissions Policy

Ironically, the current admissions system at the University of Michigan was designed to address legal and constitutional concerns over the preceding policy, the Michigan Mandate. In 10 years, the Michigan Mandate helped the university boost minority enrollment from 8 to 14 percent. But by 1997, the school was under attack from groups that charged the Michigan Mandate gave preference to minority students. In response, then university President Lee Bollinger introduced the current plan, which features a point system--at the heart of the current debate.

The university receives nearly 25,000 applicants for 5,000 available undergraduate seats, so admissions officials utilize a point system to help bring that number down to a manageable size. Applications are reviewed and awarded points for various criteria; high-scoring applications are held for further consideration. Out of a total of 150 points, for example, 110 are given for academic achievement. Various point totals are then added, based on a number of criteria. For example, Michigan residents automatically get 10 points, plus an additional 6 points if they come from an underrepresented Michigan county. Children of alumni are awarded 8 points, while community service or work experience can earn applicants 5 points. But 20 points are awarded to an applicant who fits into one--but only one--of several categories: membership in a minority group, attendance at an economically disadvantaged or predominantly minority high school, or being a recruited athlete. (If the Supreme Court rules that minority applicants cannot get extra points, the other categories will, remain unaffected.)