Michigan Affirmative Action Case

[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.

__________________________________________________ _______________
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 ]

[Attalus]

Oh, well, a partial victory is better than no victory at all.

[Timber Loftis]

It's funny. Both sides of the issue are claiming victory. NY Times latest version of the headline states "RACE IS ENDORSED AS COLLEGE ADMISSION TOOL." Well, speaking of tools, the idiot who wrote that certainly is one. They upheld the law and, on applying it to the facts, split the baby down the middle Solomon-style.

Sheesh.

[Attalus]

Well, the only "victory" that the NYT in their typical biassed style can claim is that race can be a minor determinant, not as much as Michigan used it. It's so funny how much leftists deny the bias in the mainstream media, and then things like that happen.

[Timber Loftis]

HERE is CNN's take on it. Both articles state it well, but CNN doesn't doctor-up its headline so much.

If anyone won, it was the non-Affirmative Action camp. Why? Because the Law School's program was upheld narrowly, 5-4, and the undergrad point system program was struck down solidy. 6-3.

Anyway, here you have a rare instance that constitutional scholars dream of. All too often the Court leaves open the questions, "Well, if that won't work, but something might, then what will?" Here there are Two cases, same issue, the Court saying Thumbs-up to one and Thumbs-down to another. A clearer indication of what is off-limits couldn't be dreamed of.

[wellard]

I have not been able to read the American papers to fully advise myself * One of the benefits of working for an airline [img]graemlins/heee.gif[/img] * But it does seem like an excellent result. One that curtails the maddening bias to people based on their race, and the resulting fodder for ammunition to those racists. But still keeps alive the notion that some help to minorities is worthy and legal.

[Timber Loftis]

More info, if you're interested. A comparrison of how O'Connor and Uncle Clarence Thomas came to quite different conclusions regarding affirmative action. It appears Thomas's major criticism is the stigma one must endure (as he has) when one receives affirmative action. O'Connor is the one who opined that affirmative action should be able to see its absolute end in the near future, perhaps in 25 years.

Who am I to criticize? I received affirmative action-esque assistance, albeit from a private institution (low interest student loan for appalaichan students).

Today's NY Times:
__________________________________________________

By LINDA GREENHOUSE

WASHINGTON, June 24 — As they approached the University of Michigan affirmative action cases, Justice Sandra Day O'Connor and Justice Clarence Thomas appeared to be responding to completely different cues.

For Justice O'Connor, the broad societal consensus in favor of affirmative action in higher education, as reflected in an outpouring of briefs on Michigan's behalf from many of the country's most prominent institutions, was clearly critical to her conclusion that the law school's "holistic" and "individualized" consideration of race was not only acceptable but also, at least for the next 25 years, necessary to achieve a more equal society.

Justice Thomas, whose impassioned 31-page dissenting opinion in the law school case was almost precisely the length of Justice O'Connor's majority opinion, took as his text not the briefs but his own life story.

"I must contest the notion that the law school's discrimination benefits those admitted as a result of it," he said at the start of a remarkable series of paragraphs, most without footnotes, statistics or outside references, about the pain and stigma suffered by recipients of affirmative action.

Justice O'Connor observed in her opinion that "context matters when reviewing race-based governmental action under the Equal Protection Clause." The context provided by the briefs from Fortune 500 companies, senior military officers, and colleges and universities big and small, public and private, quite clearly won the day for Michigan.

Context always matters at the court, though it is not always acknowledged by justices who, unlike Justice O'Connor, prefer to deal in absolutes. What the rulings demonstrated was not simply the power of context but the importance of the different contexts from which the justices view the cases that bring them face to face with society's most profound disputes.

For Justices O'Connor and Thomas, their opposite starting points as well as their opposite conclusions make the law school case, Grutter v. Bollinger, a useful window into the styles of two of the court's most distinctive members.

In her new book "The Majesty of the Law," a collection of essays published the week after the Michigan cases were argued in April, Justice O'Connor wrote that "courts, in particular, are mainly reactive institutions." Noting that "change comes principally from attitudinal shifts in the population at large," she said that "rare indeed is the legal victory — in court or legislature — that is not a careful byproduct of an emerging social consensus."

The challenge facing the University of Michigan and its defenders was to demonstrate such a consensus on behalf of affirmative action, and they met the challenge brilliantly. The briefs, from which Justice O'Connor quoted extensively, provided the context for concluding that affirmative action's benefits "are not theoretical but real, as major American businesses have made clear," she said at one point with a nod to two of the corporate briefs.

Another part of the context for Justice O'Connor was the 25-year-old opinion in the Bakke case by an admired mentor, Justice Lewis F. Powell Jr. Justice Powell's solitary opinion establishing diversity as a "compelling state interest" justifying affirmative action in admissions had been on shaky ground before five justices embraced it on Monday.

At the heart of Justice Thomas's dissenting opinion was a highly personal critique of affirmative action, which he called the "cruel farce of racial discrimination."

"The law school tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers," he said, adding, "These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition."

Justice Thomas, himself a beneficiary of affirmative action at Yale Law School, compiled a respectable record at what is arguably the country's most elite law school. So his opinion reflected not objective failure so much as a lifelong struggle with the ambiguous position in which beneficiaries of affirmative action — "test subjects," as he put it — often found themselves as elite institutions felt their way, sometimes clumsily, toward a more inclusive identity in the cauldron of the early 1970's.

Asking, "Who can differentiate between those who belong and those who do not?" he continued: "The majority of blacks are admitted to the law school because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the `beneficiaries' of racial discrimination. When blacks take positions in the highest places of government, industry or academia, it is an open question today whether their skin color played a part in their advancement."

He added, "The question itself is the stigma — because either racial discrimination did play a role, in which case the person may be deemed `otherwise unqualified,' or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination."

If Michigan's law school cannot find a way to be both selective and racially inclusive, it should be "forced to choose" one path or the other, this Yale graduate asserted, adding: "Michigan has no compelling interest in having a law school at all, much less an elite one."

As the dust settled from Monday's decisions, the Thomas opinion drew much interest and comment.

"In this opinion is the entire panoply of the contradictions this country has about race," said Goodwin Liu, a lawyer here whose law review article in support of affirmative action was cited on Monday in an opinion by Justice Ruth Bader Ginsburg.

Roger Pilon, vice president for legal affairs of the libertarian Cato Institute and long an admirer of Justice Thomas, said that "without question, he is speaking from the context of someone who's pulled himself up by the bootstraps." In an interview, Mr. Pilon added: "It may seem incomprehensible to liberal do-gooders that there are people who want to make it on their own."

Justice Thomas, whose 55th birthday was Monday, is the youngest member of the court by nine years, the only justice who plausibly might still be on the court 25 years from now, by which time, according to Justice O'Connor's opinion, affirmative action should fade into history.

For some, the context may be substantially different if the court is still grappling with the issue then. But it is scarcely imaginable that the author of Monday's dissenting opinion would change the perspective with which his life story has endowed him.

[Arvon]

I thought the 14th amendment didn't allow ANY discrinination in any government supported institution. Oh well I guess once again they found some right that wasn't there.

[Azred]

This is stupidly ridiculous. There should be only two qualifiers for attending a school: academic performance and money (the ability to afford the school's tuition). I don't disagree that racial diversity helps to create a more life-like learning environment, but there is no Constitutional requirement that a school be racially diverse.

because I know people sometimes misinterpret statements, note that the last sentence in the above paragraph does not mean that I am either racist or a segregationist, just that there is no requirement for racial diversity

Obviously, your ethnic origin is something with which you are born; you have no choice about it. However, the same applies to your parents' economic status--you are born into their situation whether they are poor or rich. In an effort to create economic diversity, shouldn't economic status also become a factor to be considered for admission to a university? The lack of money or the lack of ability to get a scholarship should not be a barrier to admission, if the logic is followed. Isn't the goal of diversity to give everyone an equal chance? If so, then why limit that to ethnic origin or religious preference?

As far as a "compelling state interest" in concerned, wouldn't a real "compelling state interest" be in giving everyone a university education? A low-interest loan for everyone, or even a state-funded university that charges no tutition? A well-educated workforce would help the economy as a whole, you know. (wouldn't the tax-and-spenders love that plan? [img]tongue.gif[/img] )

Bottom line, applications for education admission or employment should be blind: you fill out the application, the application is given a number and all personal information is omitted, then the application is reviewed. That is the real definition of "equal opportuity", not some modified form of affirmative action, an idea I have never liked.

[ 06-25-2003, 12:36 PM: Message edited by: Azred ]

[Timber Loftis]

Originally posted by Arvon: I thought the 14th amendment didn't allow ANY discrinination in any government supported institution. Oh well I guess once again they found some right that wasn't there.

The 14th Amendment, at para. 1, contains:
"No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the
laws."

This is where the term "Equal Protection clause" comes from in the race cases.

The 15th Amendment, passed for clarification, states:
1. The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or
previous condition of servitude.

2. The Congress shall have power to enforce this article by appropriate
legislation.

So, yes, you are correct regarding the text. However, the whole "strict scrutiny" test is really a test to see if a state can derrogate from the constitutional presumption. As I explained, the Court has said a state CAN use race as a classification in a law where there is a "compelling state interest" and the law is "Narrowly tailored" to that interest.

So, as Robert Bork would point out, it is all a creation of an active judiciary MAKING law rather than APPLYING law (and therefore exceeding its place and power in the grand scheme).

Of course, the Executive branch has made broad grabs of power too. Things are not balanced exactly as the founding fathers envisioned.

Tossing this extremely valid but superfluous point aside, and in response to Azred, I note that diversity in education is EXTREMELY important. Opposing views in the classroom, as here on IWF, are exceedingly educational, and people who can cite life experiences different from your own can teach you a lot. But, I guess most people actually prefer to associate with carbon copies of themselves and tell each other how they are great and everyone else is less great.

And, yes, this applies to poor/rich and "from Alabama"/"from Hawaii" as much as it does to black/white/yellow/red skin. However, the STRICT SCRUTINY test only applies where race is an issue. Unless you're denying voting, using economic status as a classification is perfectly fine in the law and done all the time. Think taxes. Think Stafford Loans. Think Fannie May. So, if a state wanted to use affirmative action for poor folks, absolutely nothing is stopping them.

[ 06-25-2003, 01:09 PM: Message edited by: Timber Loftis ]