Split Decision, Clear Result (the Michigan SC cases)

This morning the US Supreme Court issued two decisions concerning affirmative action in the admissions policies of the University of Michigan. By a 5-4 decision, it affirmed the race-based policy of the University's law school. By a 6-3 decision, it struck down a similar policy for undergraduate admissions.

In the law school case (Grutter v. Bollinger) the Court issued six different opinions among the nine Justices. In the undergraduate case (Gratz v. Bollinger), it issued perhaps its all-time record, seven opinions in one case. Despite that large number of opinions, some of which are remarkably hostile toward one another, the bottom line conclusion of these two cases is clear – affirmative action is dead in American universities in no more than 25 years.

We start with Gratz, the undergraduate decision. The Admissions Office there awarded 20 points automatically to any applicant who was a member of a "disadvantaged minority," which meant African-Americans, Hispanics, or Native Americans. Admission to the university generally required 100 points out of a possible 150. By contrast, the rare student who achieved a perfect score on the Scholastic Aptitude Test received only 5 points for that. One racial group, Asian Americans, received no points, because historically students from that group outperform Caucasian students in academics and in qualifications for admission.

The effect of the 20-point bonus was to make "the factor of race .... decisive" for almost every minimally qualified student from those specified groups. It also meant that applicants not from those racial groups, but far better qualified academically, were refused admission.

Led by Chief Justice Rehnquist, six Justices had no difficulty concluding that this amounted to a quota system, which the Court had condemned in the Bakke decision a quarter century ago, and agreed that the undergraduate admission system – and anything like it in any other public college or university – was unconstitutional. (There were separate Dissents filed by Justices Stevens, Souter and Ginsburg.)

On the face of it, the law school case seems to be the opposite of the undergraduate one. In the Grutter case, the Admissions Office looked at every one of the 3,500 or so applicants for a freshman class of about 350 students. They looked at grade point averages, at scores on the Law School Aptitude Test, at extracurricular activities, and at "life experience." Included in the latter were the racial experiences in the students' lives, including difficulties faced and overcome. Justice O'Connor wrote the Opinion of the Court approving this system, joined by Justices Stevens, Souter, Ginsburg and Breyer.

In both cases, the University of Michigan asserted that it had a legitimate educational purpose of "diversity" in the student body. It said that students learn not only from their professors but from one another, and diversity is essential to that purpose. In both cases, the Supreme Court accepted that as a legitimate purpose – but in the undergraduate case only, the Court struck down the method chosen to accomplish that "compelling interest."

In the law school, the University said it sought a "critical mass" of minority students, not just the small numbers of minority students who qualified for admission without any special consideration. The University never defined how many students made up a "critical mass," because that would appear to be a quota, which was clearly illegal.

Chief Justice Rehnquist, in a particularly cutting dissent, used the University's own admissions figures to demonstrate that the "critical mass" for African American students was more than twice the critical mass for Hispanics and four times the critical mass for Native Americans. Both he and Justice Thomas, the Court's only black Justice, referred to the Law School admissions program as "a sham." Justices Kennedy and Scalia also filed dissents.

Both of these cases were decided under the Fourteenth Amendment, which says that no state shall "deny to any person ... the equal protection of the laws." Both cases started with the presumption that denying admission to one student as opposed to another, solely on account of the different races of the two students, denies equal protection to the student excluded. And all of the plaintiffs in both of these cases were denied admission though they had credentials which would have gotten them in for certain, had they been members of a disadvantaged minority. This factual finding was not questioned by any of the Justices in either of the cases.

What is going on here? Has the Supreme Court turned schizophrenic, approving racial discrimination in one case but rejecting it in the other?

No. There is one critical difference between the two cases. For undergraduates, the advantage for certain students was absolute and solely race-based. Every member of the target race got the advantage, without any consideration of whether it was appropriate. However, for law school applicants the advantage was individually considered. For example, a child of Cliff and Clair Huxtable (the Cosby family on TV), would get no advantage – that child of a doctor and a lawyer, attending good schools in good neighborhoods, would be expected to perform at the same level as any Caucasian or Asian American student.

Some readers might ask at this point whether this means less racial discrimination, but not an end to discrimination. Some might agree with the dissent in the law school case, that this is still a violation of the Fourteenth Amendment. See for yourselves. The opinions are relatively short and written in plain English. They can be found at either of these websites: www.supremecourtus.gov and www.supct.law.cornell.edu/supct/ The alternative site at Cornell is given because the Supreme Court's official site was overrun with hits today.

There is a critical point in the law school case not mentioned in any of the press reports this writer has seen and heard. In line with prior Court decisions, Justice O'Connor's Opinion states that it should remain in effect only for "twenty-five years." Even by its own terms, this decision is deliberately temporary. That leads to the ultimate conclusion that affirmative action, even in the limited form accepted in one case today, will be abolished as unconstitutional. - 30 - About the Author: John Armor practices civil rights law in the Supreme Court, and is filing his 17th brief there this month.

Taking this to perhaps the reasonable next step, what is to prevent a law school candidate who "appears" white to notate on their application that they are "African-American"?

An exceptional idea. If "African-American" means one whose ancestry is from Africa, then we all qualify. "Lucy", our oldest known ancestor, was undoubtedly African. If they say that one of your grandparents must be AA, then use the same formula for them as well. THEY were AA, because THEIR grandparents were AA... go back far enough and you'll eventually get to "Lucy" (or whoever the oldest is nowadays)... unless the schools would like to argue that Adam and Ever were our starting point, and prove that the Garden of Eden was not in Africa (and I'd pay big money to watch them argue that!).

If they want to argue that it is about melanin in the skin, than get a good tan and beat the mulatto and bi-racial students (and ask the Hispanics if they agree with that decision).

MAN, I hate these f*****g racists. Look at what we have to do to counter their Evil stupidity.

It's amusing the way you avoided the points I made. Why don't you try writing something substantive next time?

The liberal American Prospect already came out with an article celebrating how the ruling simply solidifies racial preferences.

And they're right. The undergraduate admissions case does nothing other than hold ground.

You can't get rid of equity altogether, and in any case, the courts go way beyond what could be considered equity rulings. For example, substantive due process (the notion that the due-process clause prohibits certain laws instead of regulating the manner in which they're enforced) isn't a product of "equity", but of judges creating entirely new law from whole cloth.

The problem with that is that even the makers of standardized tests don't recommend overemphasizing the test scores and as you allude to, GPAs from different schools are directly compatible.

I know that the undergraduate admissions offices come up with a predictive index based on each applicants test scores, grades, and high school. Law schools, if they don't do the same, could. There is no necessity to base admissions on soft criteria like interviews and how enthusiastic are the recommendations.

If I was in my state legislature's education committee, I simply would not trust the people in charge of our state university to treat conservatives fairly in either admissions or hiring. With hiring, it is tough to do something about. But in admissions, why not a push to mandate objectivity?

Admission was based on test results and school grades.

In what universe? Most places consider interviews, recommendations, school activities, essays, community service, etc and as far as I know always have.

It's worse. It's Sandy Baby deciding that she doesn't want it around forever but doesn't want to have to deal with the repercussions. The '25 year' line is merely to make her feel like a conservative.

"Oh, I don't want this to last, but I don't need the demonstrations on my lawn, either."

I hope she gets bit by a Gila Monster tending her ranch. No time to repent her sins, just straight to hell. Witch.

Hispanic is not a race. A Cuban such as Desi Arnez is 100% white of Spanish decent. Fidel is white. Many of the elite Mexican's are white, Fox is white. Many of the South American countries have a signicant number of people that are of French decent but speak Spanish. I think that a good case can be made if someone complains about a white Hispanic getting preferance at one of these schools.

A white descendant of a Cuban slaveowner (where there were far more slaves than the U.S.) is an oppressed minority and a Laotian boat person is not. Just part of the bizarre racial classifications that have always existed in the U.S.

BTW, Homer Plessy of Plessy v. Ferguson was only 1/8 black yet that was enough to hold to the laws of Jim Crow. Bizarre definitions of race are not new.

"For example, a child of Cliff and Clair Huxtable (the Cosby family on TV), would get no advantage."

"This is laughable, to think that an advantaged black would get no preference. Laughable"

I have taught on the university level for 20+ years and have worked with scholarships for about 15 of those years (scholarship decisions are fairly similar to admission decisions). From my experience, you are correct. I know of plenty of minority students who come from affluent backgrounds who receive substantial scholarship awards due solely to their minority staus. My college within the university maintains a large, separate line of scholarship awards for minority students, only. I have always wondered if this practice is entirely legal, strictly speaking, but it's done, alright.

"Admission was based on test results and school grades.There were rules for calculating total score ranking etc. There was an audit-able trial of evidence and if rules were broken one could sue. That puts a check on favoritism. As it stands now, there are no rules. Actually there is one. From the mouth of a Michigan University bureaucrat it sounds like this "The rule is ME". Some super fuzzy "life experience assessment" can be understood and performed only and only by the bureaucrat."

You are right; this is a BI, BIG danger. At least the point-added system for blacks left fingerprints. I think this pair of decisions say its's perfectly okay to discriminate against white people any way you choose, just don't leave any messy print behind.

The Wall Street Journal Editorial Page completely agrees with me on Mr. Gonzalez's role ( http://www.opinionjournal.com/editorial/feature.html?id=110003666 ).

My post clearly outlined the extent to which the Administration is culpable. It did not include a single sentence attributing ALL responsibility to the Administration. But it does bear some responsibility. See my post about the importance of the Solicitor General. I saw a study somewhere noting that in 75% of the cases where the Administration rendered its opinion in a brief, the SC ruled in the Administration's way. Considering the narrow margin in the law school case, I don't think it's a stretch.

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