Diversity on Trial

If this article had appeared before Tuesday, March 27, the sentence you are
reading now would have said: "A recent decision by a district court judge about
admissions policies at the University of Michigan is heartening news for
supporters of affirmative action in higher education." Instead, that introductory
sentence needs to be replaced with this one: "A recent decision by a district
court judge about admissions policies at the University of Michigan is
disheartening news for supporters of affirmative action in higher
education."

What happened?

Actually, as contradictory as those two sentences sound, they're both true. On
December 13 of last year, a federal district court judge appointed by Ronald
Reagan upheld the constitutionality of race-conscious undergraduate
admissions at the University of Michigan. Yet a mere three months later, on March
27, another ruling--by another Reagan-appointed judge on the same district
court--held that the race-conscious admissions program of the University of
Michigan's law school is unconstitutional.

These Michigan decisions are only the most recent and overtly contradictory of a
panoply of conflicting rulings on affirmative action in higher education that
have been handed down by federal courts in the last few years. The Fifth Circuit
Court of Appeals in 1996 (ruling on the University of Texas's law school
admissions policies, in Hopwood v. Texas) and the Ninth Circuit last
December 4 (ruling on the University of Washington's law school admissions
policies, in Smith v. University of Washington), for example, have also
made significant--and contrary--decisions about the constitutionality of
race-conscious admissions.

The recent rulings in this area reinforce not only how individual judges
interpreting the same case law and the same language in the Constitution can
reach fundamentally different conclusions, but also how precarious affirmative
action policy in higher education has become. The fate of race-conscious
admissions policies now likely awaits the decision of a closely divided U.S.
Supreme Court.

Bakke to the Future

If--and, as appears increasingly likely, when--the Supreme Court takes up the
question of affirmative action in higher education, it won't be the first time it
has done so. In 1978, in Regents of the University of California v. Bakke,
the Supreme Court narrowly, and some would say ambiguously, ruled that race can
be considered as one factor in making admissions decisions. Indeed, it is the
Court's arguably murky decision in Bakke, and in particular Justice Lewis
Powell's majority opinion in the case, that have been at the heart of all the
recent decisions, both pro– and anti–affirmative action. As the Ninth Circuit
recently put it when ruling in favor of race-conscious admissions plans at the
University of Washington, "The difficulty with which we are presented is that in
Bakke none of the other justices fully agreed with Justice Powell's
opinion, so we are left with the task of deciding just what the Supreme Court
decided."

In his Bakke opinion, Justice Powell argued that a diverse student body
is a constitutionally permissible goal for a college or university. Race or
ethnic background, he wrote, can be a factor in determining a particular
candidate's "potential contribution to diversity without the factor of race being
decisive." The decisions in favor of race-conscious admissions at the University
of Washington's law school and the University of Michigan's undergraduate program
drew heavily on Powell's reasoning, and on the conclusion of the majority in
Bakke that "diversity" is a worthy (and constitutional) goal for
institutions of higher education to pursue. In fact, these recent decisions were
ringing endorsements of the concept that campus diversity improves the academic
environment, an idea most famously supported in the landmark Brown v. Board of
Education
case in 1954.

But the justices produced a plethora of divergent opinions in Bakke, with
no one opinion commanding a majority in its entirety. Each of six different
opinions served to endorse or dissent from portions of what became the Court's
opinion, which was the one written by Powell. Powell's primary holding--which
struck down the University of California's quota system but upheld the idea of
taking race into account in university admissions policies--was joined in part by
Justices William Brennan, Byron White, Thurgood Marshall, and Harry Blackmun.
Writing separately, concurring in part and dissenting in part, was Justice John
Paul Stevens; joining him in dissent were the Court's more conservative
members--Chief Justice Warren Burger and Justices Potter Stewart and William
Rehnquist.

The confusion about just what the liberal majority of five agreed to has been
used ever since by opponents (including the plaintiffs in the recent Washington
and Michigan cases) to support the claim that there never was a true majority on
the Court in favor of using "diversity" and "academic freedom" to justify the
consideration of race in the admissions process.

But while it's true that the liberals on the Bakke Court, led by Justice
William Brennan, did not join fully in Powell's reasoning, that was because they
wanted more, not less, consideration given to race in admissions than Powell's
holding advocated. The Ninth Circuit, which upheld the University of Washington's
policy, agreed. That court scrutinized the Bakke decision and concluded
that Justice Brennan and the justices who joined with him did not disagree with
Powell's opinion that race can be used as a "plus" factor. "It seems clear," the
Ninth Circuit wrote, that in the Supreme Court's majority ruling the justices
"saw nothing unconstitutional about a diversity based program that at least
purported to take all kinds of special characteristics, and talents, including
race, into account." As further evidence of the continuing validity of
Bakke, the circuit court cited Supreme Court precedent stating that its
holdings will be determined by the position taken by the justices who agreed "on
the narrowest grounds"; that is, the Ninth Circuit would base its decision on the
basic legal principles on which a majority of the Court concurred in
Bakke.

But exactly what constitutes the "narrowest grounds" has been a major source of
contention, not just about Bakke specifically but about constitutional
interpretation generally. A 1977 ruling, Marks v. United States
(concerning criminal pornography), identified what the "governing standards" of a
court's decision should be when "a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices." Not
surprisingly, how judges apply this aspect of Marks to Bakke
relates to whether or not they believe Justice Powell's opinion spoke for a
majority of the Supreme Court on the diversity question.

Michigan v. Michigan

As with virtually all challenges to college admissions programs, both Michigan
cases began when white students filed lawsuits against the schools that denied
them admission. The students (backed, as they often are in these cases, by the
conservative Center for Individual Rights) claimed that by using race as a
criterion for admission the schools denied them equal protection of the laws. No
one disputes that the schools used race as one factor in those admissions
decisions. Nor is there a disagreement about the schools' motivation--to increase
diversity. Thus, the question for the courts was whether racial classification,
which is--to use the constitutional-law jargon--"inherently suspect," passed the
test of "strict scrutiny." In other words, does the university have, as a matter
of law, a compelling interest in the attainment of a diverse student body?

Judges who have found schools' admissions programs unconstitutional (including
the recent Michigan law school opinion) assert that Bakke does not support
the idea of educational diversity as a grounds for overcoming the strict-scrutiny
test. They also cite a series of Supreme Court rulings on affirmative action in
other areas, such as the workplace, which have virtually eliminated the policy in
those spheres.

But the judges who upheld the admissions policies of the University of Michigan
undergraduate program and of the University of Washington's law school affirmed
the constitutionality of pursuing diversity in higher education. Not only did
they conclude that this is what a majority in Bakke had explicitly held,
they also implicitly drew support from the Brown v. Board of Education
decision, which used social science as a tool for defining constitutional law.
Both the Michigan district court and the Ninth Circuit appeals court in
Washington ruled that diversity constitutes a compelling governmental interest in
the context of higher education that justifies the use of race as one factor in
the admissions process. But while the Ninth Circuit used an analysis that pieced
together five justices who agreed with Powell on the "narrowest footing," the
Michigan judge went even further.

The Michigan court observed the "solid evidence regarding the educational
benefits that flow from a racially and ethnically diverse student body" and
pointed out the lack of any argument rebutting this evidence. Furthermore,
responding to claims about the benefits of the diversity policy being "too
amorphous or ill-defined" to pass strict scrutiny, the court said that this
argument did not apply in higher education the way it would in, say, the
construction industry. Whereas affirmative action in other contexts might aim
primarily to remediate past wrongs, "diversity in higher education, by its very
nature, is a permanent and ongoing interest."

But the more recent Michigan decision, involving the law school's admissions
policy, could hardly have been more different. While acknowledging that racial
diversity in the law school population may provide "important and laudable"
educational and societal benefits, Judge Bernard A. Friedman concluded that "the
attainment of a racially diverse class is not a compelling state interest." In
reaching this conclusion, the court appears to have taken almost the opposite
position from the earlier Michigan ruling--saying that the only way that
affirmative action can be used is as a remedy for past discrimination. While that
may currently be the legal standard for affirmative action in the workplace, it
has never been held to apply in the educational environment. In rejecting
affirmative action in this manner, Judge Friedman allied himself with the 1996
decision in Hopwood v. Texas by a panel of the U.S. Circuit Court
of Appeals for the Fifth Circuit--an opinion that threw out the University of
Texas law school's affirmative action admissions program for African-American and
Mexican-American applicants.

The Michigan law school decision is troubling--and dangerous--because it
appears to ignore specific questions of evidence. While the court heard weeks of
testimony and explicitly acknowledged the importance and legitimacy of diversity
as an asset in education, it nonetheless held that these benefits did not present
a "compelling interest." The court further closed the door by suggesting that
even if racial diversity were a compelling state interest, the school's use of
race was not "narrowly tailored" enough to pass constitutional muster. It
suggested that the plan was "indistinguishable from a quota system," an approach
that a majority in Bakke had disallowed.

What the Court Will Do

All these conflicting decisions are rapidly paving the road to the Supreme
Court. That's not necessarily good news for advocates of affirmative action. Bill
Clinton's Justice Department filed briefs in support of the diversity policies in
several of the lower-court cases; the Bush administration's attorney general,
John Ashcroft, is virtually certain to take the other side. And he'll have
formidable assistance in his efforts: The solicitor general– designate, Ted
Olson, successfully argued the Hopwood case on behalf of the student
plaintiffs.

By what avenue is the issue likely to arrive before the Court? And does the
Court even want to take on this challenge? It declined to hear Texas's appeal in
Hopwood. Yet the high court did recently agree to hear arguments in a
workplace-related affirmative action case--a possible signal that Court
conservatives are feeling confident enough to establish further precedent in this
area.

A new Supreme Court precedent could fundamentally redefine affirmative action in
higher education, either by clearly denying or clearly reasserting its basic
constitutionality. The bottom line--as Justice Brennan used to make clear by
simply holding up his hand with all five fingers opened--is who has the votes.
It's a principle that the conservative majority on this Court, like the man
sitting in the White House as a result of that majority, can readily affirm.
While the justices (especially the conservative ones) may talk about stare
decisis
--respect for precedent--their crucial legal decision on affirmative
action may come down to ideology.

So how is the Court likely to vote? Two of the current justices were on the
high court in 1978 when Bakke was decided. The man who wrote the dissent
was Justice John Paul Stevens. But Stevens based his 1978 opinion solely on Title
VI of the Civil Rights Act--not the Constitution--and concluded that the broader
constitutional question of "whether race can ever be used as a factor in an
admissions decision is not an issue in this case." What is more, the
independent-thinking Stevens, who penned an impassioned dissent in the Bush v.
Gore
decision that put President George W. Bush in the Oval Office, has grown
in his appreciation of civil rights law. (It is a measure of how far the Court
has moved to the right that the Republican-appointed Stevens, author of the
Bakke dissent, is today considered to be a member of the so-called liberal
bloc of justices.)

Justice William Rehnquist joined Stevens's dissent in Bakke. But unlike
Stevens, Rehnquist--now the chief justice--has not budged ideologically since
1978. His conservative philosophy and his other opinions in this area make him an
almost certain vote for the elimination of affirmative action. The same goes for
Justice Antonin Scalia, a self-proclaimed strict constructionist; he will likely
suggest that nowhere in the text of the equal protection clause does it talk
about "plus" factors in terms of making decisions about admissions. Justice
Anthony Kennedy has also shown great skepticism about affirmative action in
previous cases.

Though he is the most obvious beneficiary of affirmative action on the Court,
Clarence Thomas has been among the policy's most vociferous opponents. If the
anti-diversity justices win a majority in this case, Chief Justice Rehnquist
might very well assign authorship of the opinion to the only black justice--the
man who replaced Justice Thurgood Marshall, the great civil rights lawyer who
argued Brown.

On the other side, Justices Ruth Bader Ginsburg, Stephen Breyer, and David Souter
would likely hew with Stevens to Justice Powell's protection of a university's
rights to include diversity as one factor in the admissions scheme. Thus, in the
end, the Supreme Court's decision--and the future of affirmative action--may
depend on the opinion of a single jurist who regularly casts the swing vote on
this Court: Justice Sandra Day O'Connor.

The O'Connor Factor

In this area of the law, O'Connor has been typically judicious and limited in
her approach. On one occasion, she voted to strike down preferences in layoffs of
more senior white employees when no evidence of previous discrimination against
the black employees was present. But on another occasion, she voted to uphold a
voluntary affirmative action plan for women when there was a wide disparity in
the numbers of men and women in the top ranks. It's possible to imagine O'Connor
using a new case to construct a rationale either for or against diversity.

One likely option O'Connor will consider is to predicate her decision on the
unique role of education and university admissions in our society, as distinct
from its systems of hiring and firing. To this end, a concurring opinion in
Hopwood by Judge Jacques L. Wiener, Jr., of the Fifth Circuit may prove
prescient. In disagreeing with the appeals court's conclusion that diversity can
never be a compelling governmental interest in a public graduate school, Weiner
cited Justice O'Connor's opinion in Adarand Constructors, Inc. v. Pena,
the case that largely helped do away with affirmative action in the employment
context. Justice O'Connor's opinion in that case, Judge Weiner noted, "expressly
states that Adarand is not the death knell of affirmative action--to which
I would add, especially not in the framework of achieving diversity in public
graduate schools."

One final point to consider is that O'Connor has taken on Powell's role as the
Court's swing vote; for that reason, she often strives to provide a decision
limited in scope. The diversity policy expressed in Powell's Bakke
opinion represents the embodiment of that philosophy: It's a limited--not a
sweeping--rationale for affirmative action in higher education. O'Connor
therefore might vote to uphold it.

The immediate implications of a Supreme Court ruling are enormous. When the
University of Texas law school eliminated race as a plus factor after
Hopwood, the percentage of the entering class that was African American
dropped from 5.8 percent (29 students) to 0.9 percent (four students). Similar
declines in law school enrollments by racial minorities occurred in California
following the passage of Proposition 209, which eliminated affirmative action in
the state's university system.

But this judicial decision--like the policy under consideration itself--should be
about more than just numbers. If the Supreme Court upholds the constitutionality
of affirmative action programs, it will reinforce America's commitment not just
to diversity but to the idea that the nation must continue to take extra steps to
build an inclusive society and repair the effects of a long history of
discrimination, particularly in an area as crucial for the long term as
education.

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