In Split Decision, Court Backs Affirmative Action
By Charles Lane
The Supreme Court issued a qualified but resounding endorsement of affirmative action in higher education today, in a pair of historic decisions that, taken together, ratified diversity as a rationale for race-conscious admissions and laid out constitutionally acceptable means for achieving it.
A slender five-justice majority upheld the University of Michigan law school's approach to enrolling a "critical mass" of African Americans, Latinos and Native Americans, under which the school considers each applicant student individually and sets no explicit quota. At the same time, a six-justice majority rejected, as too mechanistic, Michigan's undergraduate affirmative action program, under which members of these "underrepresented" groups get an automatic 20-point bonus on the 150-point scale used to rank applicants.
The net effect of the two rulings was to permit selective public and private universities to continue using race as a "plus-factor" in evaluating potential students, provided that they take sufficient care to evaluate individually each applicant's ability to contribute to a diverse student body. Five justices also endorsed the view that diversity-based affirmative action should not be a permanent feature of American life, urging universities to start preparing for the day, 25 years hence, when it will no longer be necessary.
At the center of the action was Justice Sandra Day O'Connor, the perennial centrist swing voter on the court, who was the only justice to vote with the majority on all the key holdings of today's cases.
It was O'Connor who, in a firm voice, announced the crucial opinion of the court in the law school case, describing for a hushed audience the social and educational benefits of racial and ethnic heterogeneity on the campuses of America's selective institutions.
"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," O'Connor wrote, in an opinion joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
The court's rulings brought a dramatic conclusion to the latest phase of a national debate over race and higher education that last peaked at the court 25 years ago, when the court, in a splintered decision in the case of Regents of the University of California v. Bakke, ruled out quotas but left the door open to the use of race in admissions.
It is a debate that has raged not only at the ballot box, on TV talk shows and on college campuses, but also within the halls of government--most recently as the Bush administration engaged in a fierce internal struggle over how to respond to the Michigan cases.
Ultimately, the administration sided with opponents of Michigan's policies, arguing in a friend-of-the-court brief that racial and ethnic diversity is an important goal, but that both the undergraduate and law school programs were unconstitutional because the university had failed to attempt race-neutral means of achieving diversity first.
The administration endorsed instead so-called "ten percent" plans such as Texas' guarantee of admission to the University of Texas to the top 10 percent of each high school class in the state.
In an important qualification, O'Connor noted that the Constitution forbids permanent racial classifications. Affirmative action at universities "must be limited in time," she wrote, adding that states that continue to use race-conscious admissions in their university systems should aspire to move beyond them, applying lessons from the race-neutral policies used in California, Florida and Washington, where affirmative action has been abolished.
"We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," O'Connor wrote.