Affirmative Action Upheld By High Court

WASHINGTON, D.C.—Supporters of affirmative action in higher education—including Harvard’s top administrators—breathed a sigh of relief Monday as the Supreme Court delivered two landmark rulings upholding the use of race as a factor in admissions.

In closely divided opinions, the Court reiterated its view of affirmative action as a legal means for achieving diversity. But its treatment of the actual policies in question differed sharply between the two cases: while the admissions policy of the University of Michigan’s Law School was upheld, that of its undergraduate program—which uses a point-based system in which all minority applicants receive a fixed boost—was ruled unconstitutional.

Back in February, Harvard filed a friend-of-the-court brief supporting the general principles of affirmative action and diversity in the two cases against the University of Michigan. Six other top universities joined in that brief, which was authored in part by Tyler Professor of Constitutional Law Laurence H. Tribe ’62.

Tribe hailed the Court’s Monday ruling as a success for those who had filed the amicus brief.

“All those who believe in racial inclusion and broadening of opportunity in a multiracial society should be pleased by today’s narrow but significant victory,” he said.

In impromptu remarks at the Harvard Faculty Club before a summer meeting of college admissions officials Monday afternoon, University President Lawrence H. Summers called the decision historic.

“This is a very significant day for college admissions, a very significant day for higher education and a very important day for America,” he said. “The Court decided wisely.”

The Rulings

In its fragmented decision, the Court essentially upheld the status quo on affirmative action in higher education, reaffirming the standard that has served as the law of the land for a generation. That law was set by the Court’s last consideration of the issue, 1978’s Bakke v. University of California Regents.

The Court’s logic in both of the new cases—brought by white Michigan residents who had been denied admission to the University of Michigan—was explained in complicated rulings with numerous separate opinions from the justices.

In the first case, Grutter v. Bollinger, a 5-4 majority held that the University of Michigan Law School’s admissions policy is constitutionally acceptable. In that policy, race is used as one of several favored attributes in evaluating applicants—in addition to so-called “hard” variables such as test scores and grades—in order to achieve a “critical mass” of minority students for purposes of diversity.

Six out of the nine justices supported affirmative action in concept. Although he dissented from the Grutter decision, Justice Anthony M. Kennedy averred that the Bakke standard—and thus affirmative action—is valid, although he said the law school’s policy does not meet that standard.

“We completely won the issue,” Maureen Mahoney, an attorney for Michigan’s law school, told The Crimson.

But by a 6-3 vote in Gratz v. Bollinger, the justices overturned the admissions policy of the University of Michigan’s undergraduate College of Literature, Science and the Arts (LSA). That policy automatically granted underrepresented minorities 20 points out of the 100 necessary for admission.

Linda J. Greenhouse ’68, the Supreme Court reporter for The New York Times, said that despite the differing decisions, the result was a victory for affirmative action supporters.

“It is a near-total victory...not a ‘mixed decision,’ because it tells universities what they can do to have a constitutional affirmative action plan,” Greenhouse, who is also a Crimson editor, wrote in an e-mail. “It validates Bakke and puts it on a broader and more forward-looking basis than before.”

But foes of affirmative action saw a less consistent picture.

“It was definitely a split decision,” said Curt Levey, director of legal and public affairs for the Center for Individual Rights, a non-profit Washington law firm which opposes racial preferences.

The critical distinction raised in Justice Sandra Day O’Connor’s majority opinion in Grutter was the “individualized, holistic review” of each application in the law school’s policy, as opposed to the automatic boost granted by LSA’s points system. The opinion stressed the need for affirmative action policies to be “narrowly tailored.”

The Grutter ruling relied on the contention that diversity in higher education is a “compelling state interest that can justify the use of race in university admissions”—and that this interest trumps concerns about discrimination under the Equal Protection Clause of the Fourteenth Amendment. This view was first articulated by former Justice Lewis F. Powell’s majority opinion in Bakke.

The Court also hewed to Powell’s insistence that race be used only as a “plus,” barring quota systems and stressing “flexibility.”

In the Bakke decision, the Court struck down the University of California Medical School’s strict quota system for minority applicants. But Powell’s decision came from a divided court that came together only on a few central points of the case.

In casting the decisive vote, he wrote an opinion that no other justice joined with in full, although four others concurred in part. The result is that while Bakke had widely been considered the standard, it was unclear whether the ruling was ever good law, a question put to rest on Monday.

In defending the use of race in university admissions decisions, Powell cited Harvard’s policies as a model in Bakke. O’Connor explicitly echoed Powell on this point, referring multiple times to the “Harvard plan” as ideal. She also cited a book co-authored by former University President Derek C. Bok and a study on affirmative action by Gary Orfield, who is the founding co-director of the Civil Rights Project at Harvard, and Harvard research assistant Michal Kurlaender.

And O’Connor recalled Powell’s assertion that diversity brings major benefits to academic settings.

“These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints,” she wrote.

O’Connor, who was widely considered the swing vote on Monday’s cases, also cited the example of the U.S. military. A friend-of-the-court brief filed by high-ranking members of the armed forces said their ranks had reaped advantages from diversity after putting race-conscious policies in place.

But O’Connor also diverged from Powell, citing further justifications than diversity alone.

“The present decision goes way beyond Bakke, despite its formal equivalence,” said Professor of Education Emeritus Nathan Glazer.

For instance, O’Connor insisted that transparent opportunity for minorities was a compelling reason to continue affirmative action in a breeding-ground for future leaders like Michigan Law—a rationale entirely absent from Powell’s 1978 ruling.

“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,” she wrote.

O’Connor rejected the reasoning of critics of affirmative action policies who said schools must try every race-neutral formula to achieve diversity first.

“Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” she wrote. “Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all groups.”

In Gratz, though, the Court held that Michigan’s undergraduate point-based policy rewarded race to the exclusion of any nuanced consideration. “Clearly, [the undergraduate] system does not offer applicants the individualized selection process described in Harvard’s example,” wrote Chief Justice William H. Rehnquist for the majority.

Reactions on the Ground

Though they hailed the day as an overall success, some professors and officials at Harvard said the Gratz ruling placed unnecessary restrictions on affirmative action programs—though Summers said it would have no effect on Harvard’s non-point-based system.

“The point system was a reasonable application of Bakke,” Orfield said.

Though Tribe said he thought the point system could have been upheld, such a ruling “was an almost inconceivable outcome given the current composition of the Court.”

Tribe and Orfield said that that composition should not be taken for granted by supporters of affirmative action.

“This emphasizes the importance of Supreme Court appointments,” Orfield said. “People who think that who goes on that court doesn’t matter in terms of what our rights are have to look at this decision.”

But the Court’s ruling against Michigan’s undergraduate policy should not be a major cause for concern, Tribe and Orfield said.

The result of the undergraduate ruling was “a relatively minor loss which in the end may make the court’s compromise more broadly acceptable throughout society,” said Tribe.

“I really don’t feel a lot of regret about the point system going,” Orfield said, adding that individualized race-conscious policies are “the fairest system.”

Summers said that Harvard’s interest in the case had not centered on defending such a point-based system.

“It’s probably the case that the appropriate weight to give to race will vary from situation to situation,” he said. “The important thing is the principle and that’s what we focused our brief on.”

Even though the Court mandated more than a principle, Michigan officials said they were sure they would find a solution to the practical problem of policy posed by Gratz.

“It is now up to us to rededicate ourselves to this diversity by refining our undergraduate admissions system to comply with the Court’s ruling,” said Terrence McDonald, dean of Michigan’s LSA, in a statement to the press Monday. “We will put to work some of the brightest minds and most motivated people in the country, and the result, I am sure, will continue to be a model for all of higher education.”

Orfield said he and his colleagues at the Civil Rights Project at Harvard would be among those minds seeking a new solution for admissions departments like LSA’s in the months to come.

And he said he thought Gratz will be only a temporary stumbling block to affirmative action at large state schools like Michigan, and that the school will find an alternative in time for next fall’s applicant pool—though the task will be “costly and difficult.”

“My guess is that people are going to figure out a way to do this differently,” Orfield said.

Looking Ahead

Still, the question of affirmative action won’t be over this fall when Michigan debuts its new undergraduate admissions policy in line with Gratz. With an eye toward the future, O’Connor’s majority in Grutter articulated a tentative sunset clause for affirmative action.

“Race-conscious admissions policies must be limited in time,” O’Connor wrote. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

But the ramifications of this non-binding provision are murky. Greenhouse said the Court’s intent in including the provision is “not clear.”

“It may mean that the Court has no appetite for revisiting this subject at all for the next 25 years,” she said. “Or it’s simply aspirational. Or it’s an invitation to litigation as the date approaches and affirmative action still exists.”

Critics, while welcoming the time limit and its suggestion of a gradual phase-out of all affirmative action programs in admissions—not just those ruled out in Gratz—were similarly unsure about where the ruling and its sunset clause would lead.

“If schools really do move in that direction, that will be a real sea change for this country,” Levey said. “On the other hand, if schools try to use her ruling as a fig leaf, then ultimately we have many years of litigation ahead to try to enforce the standard that the Court set down.”

And many proponents of affirmative action expressed skepticism about the view that such policies would be unnecessary in 25 years.

“Who can tell?” Glazer asked. “Almost everything depends on whether the very broad achievement gap in standard educational measures between blacks and others can be overcome…There’s a permanent tension to it.”

Orfield, too, was reluctant to put an expiration date on affirmative action.

“Whether we’re going toward the time when it’s not necessary depends on what policies we adopt,” he said. “If we go on the course we’ve been following since the Reagan administration, it’s going to be very necessary—the gaps are going to widen.”

And his outlook on the future of race-conscious admissions policies in the wake of the Court’s rulings was optimistic.

“The objective has been pretty sweepingly upheld by the Supreme Court, and it’s a much more conservative one than the one which upheld Bakke,” Orfield said. “That’s remarkable.”

—J. Hale Russell contributed to the reporting of this story.

—Staff writer Stephen M. Marks can be reached at marks@fas.harvard.edu.

—Staff writer Simon W. Vozick-Levinson can be reached at vozick@fas.harvard.edu.