[Timber Loftis]

Not often do my prognostications become true, but in this instance I did predict it would come down to "narrowly tailored." The Court upheld Bakke's 1978 statement that diversity in education can be a "compelling state interest." In order to pass any (ANY) race-based law, be it affirmative action or prohibitions against minorities sitting in the front of buses, you have to show 2 things:

1. Compelling governmental interest
2. Narrow tailoring to acheive that interest

This is called the STRICT SCRUTINY test, and is used because racial classifications in lawmaking are immediately SUSPECT.

Well, Bakke told us # 1 would be passed by Michigan before it went to the Supreme Court. #2, the narrow tailoring, is fact-based. The point system of the University, being too heavily weighted toward minorities, was not narrowly tailored. The law schools more subjective "critical mass" approach was narrowly tailored --- so they say.

Personally, I have found that "narrowly tailored" is nearly impossible -- because someone can always come up with a way to do what you want that does not use race as a factor. That is why Strict Scrutiny is usually called "strict in name, fatal in fact." So, having seen fewer Supreme Court findings of a "narrowly tailored" law than I can count on one hand, this is certainly an unusual piece of legal ruling.

Anywho, the short shrift: Because racial diversity contributes to a diverse student body, and because a diverse student body aids all students in learning, you can take race into account, just as you can take all reasonable factors contributing to diversity into account, but race cannot be a primary factor, nor can it be a substantial or major factor. Bakke affirmed.

Note that Rhenquist dissented.

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Court Upholds Use of Race in College Admissions With Limits
By THE ASSOCIATED PRESS

WASHINGTON-- In two split decisions, the Supreme Court on Monday ruled that minority applicants may be given an edge when applying for admissions to universities, but limited how much a factor race can play in the selection of students.

The high court struck down a point system used by the University of Michigan to give minority preference, but did not go as far as opponents of affirmative action had wanted. The court approved a separate program used at the University of Michigan law school that gives race less prominence in the admissions decision-making process.

The Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body," Justice Sandra Day O'Connor wrote.

The court divided in both cases. It upheld the law school program that sought a "critical mass" of minorities by a 5-4 vote, with O'Connor siding with the court's more liberal justices to decide the case.

The court split 6-3 in finding the undergraduate program unconstitutional. Chief Justice William H. Rehnquist wrote the majority opinion in the undergraduate case, joined by O'Connor and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Stephen Breyer.

Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg dissented.

Government has a compelling interest in promoting racial diversity on campus, but the undergraduate school's admissions policy is not the way to get there, the court majority said.

"The university's policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single underrepresented minority applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity," that Michigan claimed justified the policy, Rehnquist wrote.

The ruling affects tax-supported schools, and by extension private schools and other institutions, that have looked for ways to boost minority enrollment without violating the Constitution's guarantee against discrimination.

The University of Michigan cases are the most significant test of affirmative action to reach the court in a generation. At issue was whether racial preference programs unconstitutionally discriminate against white students.

The rulings follow the path the court set a generation ago, when it outlawed quotas but still left room for schools to improve the odds for minority applicants.

The two Michigan cases directly address only admissions at public, tax-supported institutions. But the court's rationale is expected to have a wide ripple through private colleges and universities, other government decision-making and the business world.

"This court has long recognized that 'education is the very foundation of good citizenship'," O'Connor wrote, quoting from the landmark Brown v. Board of Education ruling of nearly 50 years ago.

"For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity," O'Connor wrote. "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."

Opponents of affirmative action had hoped the Supreme Court would use this opportunity to ban most consideration of race in any government decisions. The court is far more conservative than in 1978, when it last ruled on affirmative action in higher education admissions, and the justices have put heavy conditions on government affirmative action in other arenas over the past decade.

Defending its general approach to affirmative action, the university has said that having what it calls a critical mass of minority students benefits the whole student body. Minorities must be present in more than token numbers to ensure all students can interact, the university has said.

Rehnquist dismissed that rationale in a dissenting opinion in the law school case.

"Stripped of its 'critical mass' veil, the law school's program is revealed as a naked effort to achieve racial balancing," Rehnquist wrote.

Michigan insists that it accepts only academically qualified students, no matter what their race.

Michigan's undergraduate school used a 150-point index to screen applicants. The 20 points awarded to minorities was more than the school awarded for some measures of academic excellence, writing ability or leadership skills. Outstanding athletes also got 20 points, as did impoverished applicants.

The school has also "flagged" minority applications, making it easier to keep an applicant in the pool even if he or she flunked an initial review.

In 1997, the year that two white students sued, the school had 13,500 applicants and selected 3,958 of them as freshmen.

The white plaintiffs, Jennifer Gratz and Patrick Hamacher, were Michigan residents with good grades and other qualifications when they were rejected at the flagship Ann Arbor campus. Both have since graduated from other colleges.

The Bush administration sided with the students, but did not call for an outright end to affirmative action.

The students were supported by a range of conservative legal groups, some law professors and affirmative action opponents.

The university's law school program uses a separate, less structured system to promote minority enrollment.

The law school case is Grutter v. Bollinger, 02-241; the undergraduate case is Gratz v. Bollinger, 02-516.
________________________________________
(more -- They are updating the story)

Together, the decisions and dissents run to some 150 pages, which are certain to be pored over by lawyers, educators and policymakers for some time.

It was no surprise that today's decisions were not entirely clear-cut, given the tone of the arguments before the tribunal on April 1.

The yearning for nuance became especially obvious when Kirk O. Kolbo, a lawyer from Minneapolis, had a sharp exchange with Justice O'Connor.

"The Constitution protects the rights of individuals, not racial groups," Mr. Kolbo said. He described his clients — Barbara Grutter, who was turned down by the law school when she applied at the age of 43, and Jennifer Gratz and Patrick Hamacher, who failed to win admission as undergraduates — as the victims of discrimination.

Justice O'Connor, whose position at the center of the court on this issue made her the object of particular attention, challenged Mr. Kolbo. Was he saying that race "can't be a factor at all," she wanted to know.

"Race itself should not be a factor among others in choosing students, because of the Constitution," Mr. Kolbo replied.

Justice O'Connor objected that the court's precedents held otherwise. "You are speaking in absolutes, and it isn't quite that," she said.

The United States Court of Appeals for the Sixth Circuit, in Cincinnati, had upheld the law school plan. It had not yet ruled on the undergraduate plan when the Supreme Court decided to hear both cases.

[ 06-23-2003, 01:02 PM: Message edited by: Timber Loftis ]