High Court Upholds Affirmative Action

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 of 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 said the decision was 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

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

In 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.

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

But a 6-3 vote by the justices overturned the University of Michigan’s undergraduate admissions policy in Gratz v. Bollinger. That policy automatically granted underrepresented minorities 20 points out of the 100 necessary for admission.

Both rulings relied on the idea of diversity as a “compelling interest” in an academic institution.

That rationale was first raised by former Justice Lewis F. Powell in 1978’s University of California Regents v. Bakke case.

In that contentious, fragmented 5-4 ruling—the major legal precedent for affirmative action in higher education—the Court struck down the University of California Medical School’s strict quota system for minority applicants. But Powell, who cast the decisive vote, defended the use of race in university admissions decisions, citing Harvard’s policies as a model.

In Monday’s majority opinion in Grutter, Justice Sandra Day 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,” O’Connor 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’s ruling stressed the importance of the Law School’s “individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.”

By contrast, in Gratz 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.

The Reactions

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,” said Gary Orfield, founding co-director of the Civil Rights Project at Harvard.

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.”

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,” Tribe said.

“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.”

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

And his outlook on the future of affirmative action 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,” he said. “That’s remarkable.”

—Stephen M. Marks contributed to the reporting of this story.

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

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