Posted on 06/23/2003 3:57:03 PM PDT by Congressman Billybob
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.
- 30 -
What the Court effectively did was take the easy way out while attempting to throw conservatives a bone by rejecting the undergraduate case.
This Court has shown itself to be both politically correct and yet morally bankrupt at the same time. It's time for Sandra to go and I say, "Good riddance!"
Since when wasn't it? Do you suggest we put law school admissions up for public vote?
Phrase withdrawn. It's just that I would rather live under O'Connor's misinterpreted US Constitution than under Ginsberg's "International Convention on the Elimination of All Forms of Racial Discrimination." Also to be noted is that the International Convention, as quoted by Ginsberg/Bryer, seems not just to allow the state of Michigan to take "special and concrete" reverse discriminatory measures, but to require it. Thus if we had an almost-all Democratic court, states like Florida which do NOT discriminate would be the ones in the dock. So it is still worthwhile to have GOP judges even if some of them bend to elitist opinion as yesterday.
Agreed. Thomas said that there couldn't be a compelling government interest to discriminate in law school admissions because there is no compelling government interest in having a government-run law school in the first place.
Since when wasn't it? Do you suggest we put law school admissions up for public vote?
I suggest that if the state is going to run a law school, the legislature should dictate objective admissions criteria only, such as tests scores and grade point average. If the bureaucrats want, they can keep statistics on the law school grades received by admittees from different undergraduate schools and discount each school's GPA's accordingly. However, if you go beyond that to allow soft criteria such as how the applicant did on an interview, they are going to shy away from conservative applicants. Kennedy alludes to the disdain for GOP applicants in his otherwise weak dissent.
Yes, if the guy he picked to brief against identity-political admissions policies dropped the ball and didn't get it done.
And it's his fault if he's busily kissing up to identity-politics-consuming minorities behind the scenes so that losing becomes a "win".
I won't let him have it both ways. Sounds like you'd like to let him have it all ways, though. How's your Kool-Aid?
"Race can be identified – thus, race is quantifiable (a core concept in the “one drop principle” of the racist). There is no scientific basis for this idea. Race, unlike species, is a continuum."
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"? Who is the wiser?
I'd be curious to know if the University of Michigan would then attempt to validate the "minorityness" of a law school applicant. What criteria would they use - the color of a person's skin?
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.
She gritted her teeth. She was ambiguous in her language. But that does not change the prior cases. A deadline must be there, and 25 years is the maximum deadline ever used. Those prior cases appear at the end of her Opinion in the Grutter case.
I thoroughly agree that this position makes no logical sense. It's saying, "This is unconstitutional, but not yet." It's like a jury in a criminal case coming in with the vrdict, "Not guilty, but don't do it again." But, as I said, it adds up to the end of affirmative action.
Billybob
That's why I qualified my comment as those I had "read or seen." It is telling that the New York Times did not see fit to mention the 25-year deadline. Neither did most other news sources. Only Fox got that part of the story in print or on air.
Billybob
That's what I considered. The "minorityness" of a certain applicant - how do you determine? It turns into a subjective mess. What happens if a "white" comes in and says "I'm 1/4 'black'". How many points does he/she get? How do they prove the person is really 1/4 "black"?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.