Courting Affirmative Action

Race-conscious affirmative action is as controversial as it has ever been, but last week’s oral arguments in the University of Michigan affirmative action cases make clear that subtlety rather than absolutism will determine the U.S. Supreme Court’s decision making in these hotly contested and vitally important cases.

The challengers of the Michigan admissions policies (including the U.S. government) attempted to offer a color-blind approach to college admissions, but the justices’ questions demonstrated that a far more nuanced analysis is required, one in which race could continue to play an important but limited role in college admissions. While several of the justices have obviously made up their minds on race-conscious admissions policies, the Court’s “swing” justices, particularly Justice Sandra Day O’Connor, grappled with some of the thornier issues in these cases, whether it was determining appropriate time limits on admissions policies or trying to define the meaning of “meaningful numbers” of minority students on campus.

Although the affirmative action debate often evolves into a sound bite competition, the issues in the Michigan cases are intricate and complex. In the language of constitutional law, the Court must decide whether the various admissions policies at stake—one in the University of Michigan law school case and three in the undergraduate case—are “narrowly tailored” to promote a “compelling governmental interest.”  Specifically, the Court must decide whether promoting diversity in higher education is a sufficiently important goal to justify the use of race and whether the university’s race-conscious policies are, in fact, the ideal means to advance that goal. Both public universities and private universities that receive federal funding are bound by these constitutional standards when they employ race in admissions.

In reaching its decisions, a majority of the Court could adopt any of three approaches. First, it could uphold the 1978 ruling in Regents of the University of California v. Bakke that promoting diversity is a compelling interest and that race is a legitimate consideration when used as a “plus” factor in a competitive admissions policy. The Court would then apply the Bakke standards to the Michigan policies, and would most likely uphold one or more of the policies as consistent with Bakke.

Second, the Court could reject Bakke and hold that promoting diversity is not a compelling interest. None of the Michigan policies would be constitutional in this scenario. And, depending on the breadth of the Court’s reasoning, other types of affirmative action policies, such as voluntary desegregation in K-12 education or affirmative action in government employment, could also be placed at risk. Prior Supreme Court cases hold that an institution’s goal of remedying the effects of its own discrimination is a compelling interest; if the Court goes so far as to rule that a remedial goal is the only compelling interest that can justify the use of race, many affirmative action policies would become illegal because they advance non-remedial goals, such as promoting diversity in public education or in the workplace.

Third, the Court could endorse the diversity rationale as a compelling interest, but it could establish a new set of tests to measure whether the Michigan policies are “narrowly tailored.” The Bakke “plus” factor test, which has been largely confined to higher education admissions cases, could be replaced with guidelines that have been applied in other affirmative action cases, where the Court has looked at factors such as time limits, flexibility and the burdens on non-minorities.

Depending on how high the bar is set, the Michigan policies might or might not be upheld. For instance, the Court could establish a test requiring that an admissions policy be highly individualized and flexible, and then proceed to strike down the current undergraduate policy at Michigan, reasoning that a point system which applies a fixed number of points for race is not flexible enough. Or the Court could impose a time requirement so that policies have a fixed duration. As a practical matter, the Court could, by establishing difficult or unreachable standards for narrow tailoring, sound a death knell for many race-conscious admissions policies.

Some colleges and universities, in anticipation of one of these negative scenarios, have already jumped the gun by revisiting or dismantling their race-conscious admissions and financial aid programs. Virginia Tech, for instance, has waffled, abandoning its race-conscious admissions policy a few weeks ago, only to reinstate it recently after more careful consideration. Prodded on by anti-affirmative action groups, schools such as MIT and Princeton have decided to abandon or revise their minority-targeted scholarship and pre-college preparation programs, even though the burdens on non-minority students in these programs are minimal compared to a denial of college admission, and the programs could still be defended on constitutional grounds independent of the Michigan cases.

By the end of June, we can expect rulings in which the Supreme Court clarifies the boundaries of race-conscious affirmative action—decisions where race can still be used in higher education admissions, but probably only under very limited circumstances. Race will not disappear from the legal landscape, but its role could be seriously diminished. The alignment of the justices in the University of Michigan cases is still uncertain, with Justice O’Connor being the likely swing vote in a pair of 5-to-4 decisions. But, the impact of the Supreme Court’s decisions, regardless of whether the Court upholds or strikes down the Michigan affirmative action policies, is clear. The Court’s rulings will define the contours of selective admissions and financial aid programs throughout the country, and will have powerful ripple effects in K-12 education, in government employment and contracting, and in private sector hiring, promotions and layoffs.

Angelo Ancheta is a lecturer on law at the Harvard Law School. He is director of Legal and Policy Advocacy Programs for the Civil Rights Project at Harvard.