Bush policies take another hit....caught backing the wrong side again
Supreme Court Splits on Diversity Efforts at University of Michigan
By Linda Greenhouse
The New York Times
Monday 23 June 2003
WASHINGTON, June 23 - The Supreme Court preserved affirmative action in university
admissions today by a narrow margin but with a forceful endorsement of the role of racial
diversity on campus in achieving a more equal society.
``In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary
that the path to leadership be visibly open to talented and qualified individuals of every race and
ethnicity,'' Justice Sandra Day O'Connor wrote in her 5-to-4 majority opinion upholding the
University of Michigan's consideration of race for admission to its law school.
At the same time, by a vote of 6 to 3, and with Justice O'Connor in the majority as well, the
court invalidated the same university's affirmative action program for admission to its
undergraduate college. The difference was in the details.
As a result, the pair of decisions - the court's first in a generation to address race in university
admissions - provided a road map for taking race into account without running afoul of the
Constitution's guarantee of equal protection.
The law school engages in a ``highly individualized, holistic review of each applicant's file'' in
which race counts as a factor but is not used in a ``mechanical way,'' Justice O'Connor said. For
that reason, she said, it was consistent with Justice Lewis F. Powell Jr.'s controlling opinion in
the Bakke case in 1978, which permitted the use of race as one ``plus factor'' among others.
With today's ruling, Justice Powell's solitary view that there is a ``compelling state interest'' in
racial diversity has now been endorsed by five justices and placed on a stronger footing than ever
before. Previously, that position had appeared to have been undermined by the court's
subsequent equal-protection decisions in other contexts, and some lower federal courts had
boldly repudiated it.
Although the four dissenters in the law school case did not directly confront the continued
validity of the Bakke precedent, it was clear that both Justices Clarence Thomas and Antonin
Scalia would have overturned it if they could. ``Every time the government places citizens on
racial registers and makes race relevant to the provision of burdens or benefits, it demeans us
all,'' Justice Thomas said in a dissenting opinion that Justice Scalia also signed.
Chief Justice William H. Rehnquist wrote the principal dissenting opinion that spoke for all four,
including Justice Anthony M. Kennedy. He took a more oblique approach that criticized the law
school program not so much for its premise as for how it works in practice: ``a carefully managed
program designed to ensure proportionate representation of applicants from selected minority
groups.''
Justice Kennedy, writing separately, said that Justice Powell's opinion in the Bakke case
``states the correct rule for resolving this case,'' but that the court had not applied the
``meaningful strict scrutiny'' under which the program should have been found unconstitutional.
Joining Justice O'Connor's majority opinion in Grutter v. Bollinger, No. 02-241, were Justice
Ruth Bader Ginsburg, who wrote a brief concurring opinion, and Justices David H. Souter, John
Paul Stevens and Stephen G. Breyer.
By contrast to the law school, the admissions program for Michigan's College of Literature,
Science, and the Arts awards 20 points on a scale of 150 for membership in an underrepresented
minority group - blacks, Hispanics and American Indians - with 100 points guaranteeing
admission to the university's main undergraduate school. Fixed numbers of points are also
awarded for other factors, including alumni connections, geography, and athletics.
The inclusion of race on the scale, with the result that nearly all qualified minority applicants are
admitted to the competitive program while many qualified white students are turned away,
demonstrates the absence of the ``individualized consideration'' that the Bakke decision required,
Chief Justice Rehnquist wrote for the court. Justice O'Connor echoed that conclusion, describing
the undergraduate program as a ``nonindividualized, mechanical one.''
Justice Breyer, concurring separately, did not sign the Rehnquist opinion. The dissenters were
Justices Ginsburg and Souter, who said the majority opinion was incorrect on the merits, and
Justice Stevens, who said the case should have been dismissed because the plaintiffs, two white
students who had failed to win admission under an earlier version of the undergraduate
admissions policy, lacked standing to challenge the current policy that the university adopted in
1998.
The result today came as an enormous relief to civil rights groups, as well as to public and
private colleges and universities around the country, dozens of which had joined briefs supporting
Michigan. Although the constitutional issue applied directly only to public institutions, federal law
has given private colleges an equal stake in the outcome by forbidding racial discrimination by
educational institutions that receive federal money.
The White House issued a statement praising the court ``for recognizing the value of diversity
on our nation's campuses.''
``Like the court, I look forward to the day when America will truly be a color-blind society,''
President Bush said.
The White House statement made no reference to the fact that the Bush administration had
asked the court to invalidate both Michigan programs as thinly disguised quota systems that
violated the holding of the Bakke decision.
``A reader would never know that the administration's brief derided the law school's goal of
having a critical mass of underrepresented students in each class,'' the liberal advocacy group
People For the American Way said in a statement.
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