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 -
I thought Jonathan Turley, Ward Connerly and Fox News' own Andrew Napolitano had some of the best comments on todays SC decision.
Connerly said that "subjective judgement" is okay, but the Gratz v Bollinger decision would "tighten the noose on race preferences".
Turley said he thought that the pro-AA side shoudln't be "jumping for joy". The slim 5-4 victory could be overturned with a political change in the court.
Napalitano nailed it all the way, calling the Grutter v Bollinger decision for what it was. "Racism".
I agree.
How can anyone be confident this Court will not allow preferential treatment based on sexual orientation or religion if such treatment promotes diversity?
To be fair, Major Garret was the first to mention the 25 year provision soon after the decision came down.
I read the decision and did not get this out of it at all. Fact is, all the schools have to do is to say that they pattern their system on that of either Michigan Law or Amherst (latter made clear in Kennedy's non-dissent law school dissent), and any case against such a school will lose at the appeals court level and never recieve Supreme Court review.
Affirmative action practioners always favor the Huxtable types because they are less likely to flunk out. Affirmative action to favor ghetto blacks over those from the suburbs was tried for a few years at the start of AA, but was dropped because of the disasterous flunkout rates. Thomas was right in his dissent to emphasize the elitism of the majority law decision.
To the liberals in acadaemia, "diversity" is achieved when everybody in the student body looks different...and thinks exactly alike.
Credit: Thomas Sowell
I think this ruling is the political equivalent of the Jeffords party change in the last election. A betrayal which awakens and energizes us. The left had their Florida. Anyone who desires equal treatment under the law now knows what party they have to work for. The conservatives now have much more energy and the emotional high ground in the supreme court issue in election 2004. These battles are always won and lost on the ground. I was naive to think that this time it would be otherwise .
It waited one hundred years already. The whole reason we have court-enforced affirmative action, and court-approved voting districts and the like is because many governments refused to uphold the Constitution until the courts twisted their arms. Various state and local governments did everything they could to avoid having to give equal rights and the sheer lawlessness of the behavior opened the door to the expansive domain of the federal courts.
So if you're looking to blame someone for overbearing courts - blame the politicos from the 50s and 60s who refused to obey the law.
More on this. This majority did say that some blacks with high scores have to be non-admits in order to show that simply being black doesn't get you in. However, they did NOT require that the few high-scoring black non-admits be from stable and affluent families. Instead these high-scoring black non-admits could, and more likely would, be young men and women who rub the admissions people the wrong way. Just guessing, but which political party do you think those kind of rub-the-libs-the-wrong-way high-scoring blacks would be more likely to affiliate with?
Also, Justice Kennedy was on to something when he wrote that some of the liberals don't want Cubans included with Hispanics because Cubans vote GOP. Thus we may see some bright Cuban non-admits who in fact would have been admitted if white!
Read Kennedy's non-dissent law school dissent. He is also for AA, but just prefers the Amherst model to that of Michigan law. It would thus take a two justice shift. I'm a pessimist here.
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