Yesterday, soon after the Supreme Court handed down its decisions in the University of Michigan affirmative action cases, President Bush released a statement. It read, in part, "I applaud the Supreme Court for recognizing the value of diversity on our Nation's campuses. Diversity is one of America's greatest strengths. Today's decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law." Reached on the phone, the incoming dean of Michigan's law school, Evan Caminker, professed a similar satisfaction with the decision: "The Supreme Court reaffirmed the core principal of Bakke," he said, "which is that the school has a compelling interest in making sure students learn in an integrated environment and that race can be used in a cautious and limited way to enroll a student body that is both academically excellent and racially diverse."
The funny thing is, however, that Caminker and Bush had been rooting for opposite outcomes: The White House had filed an amicus brief in favor of the white plaintiffs who were suing the University of Michigan for denying them admission. That both men could profess to be pleased with the outcome suggests that yesterday's decision was a victory for the moderate status quo. Indeed, the one thing that nearly everyone can agree on about the affirmative action rulings -- in which the Court declared that the University of Michigan's law school admissions program is constitutional while its undergraduate admissions program is not -- were neither a surprise nor a bold step in either direction. However, as tempting as it is to dismiss the decisions as so much anticlimax -- especially after hearing for months just how important they would be -- it's important to keep in mind that they do mean something: For the first time, the Supreme Court has unequivocally endorsed racial preferences.
The affirmative action debate of the past 25 years has taken place in the long but shifty shadow of the 1978 University of California Regents v. Bakke case. That decision was a particularly indecisive one: Six opinions were handed down, with five justices finding that the racial preferences in the University of California, Davis Medical School's admissions policy were unconstitutional and five justices finding that UC Davis was allowed to use race in its admissions decisions. For those of you doing the math in your head, yes, that doesn't add up to nine. The extra vote was Justice Lewis Powell's, who sided with both sides. He wrote in his decision that affirmative action was constitutional, but only on the grounds that it brought diversity to institutions (as opposed, for example, to the argument many of its defenders make that it served as a reparation for historical wrongs against certain minority groups) and only if it did not rely on quotas. This distinction, though not supported by any other justice, was treated as the ruling of the Court. It was hardly, however, a monolithic decision, and those who take issue with Powell's interpretation have proceeded in the years since to dismiss his as simply one among Bakke's discordant jangle of opinions.
Yesterday's ruling in Grutter v. Bollinger -- the case that concerned the law school admissions program -- gives the diversity argument a firm and unequivocal majority, and on a Court much more conservative than the one that heard the Bakke case. In her majority opinion, O'Connor put it as plainly as possible: "The Court endorses Justice Powell's view that student body diversity is a compelling state interest that can justify using race in university admissions." As University of Chicago Law School professor Cass Sunstein sees it, the decision is a welcome improvement over Bakke: "It is not a mess. There were strong majorities for both decisions. The status of Bakke has been very unclear for at least a decade; now that has been straightened out." Harvard Law School professor Randall Kennedy agreed. "The big highlight is that the court has embraced Justice Powell's Bakke opinion," he said, "putting an end to speculation as to whether it's controlling law."
The fight now shifts to the political arena. After all, the Court's decision doesn't require any school to keep its affirmative action program; it just allows it. And in practical terms, the invalidation in the Gratz v. Bollinger case of the Michigan undergraduate admissions program -- a "points" system that awarded 20 out of a total 150 points to candidates for being from an "underrepresented minority" -- means that schools must adopt individualized approaches that are much more time-consuming and costly, especially for universities dealing with large applicant pools. That alone may have a de facto chilling effect on affirmative action. Roger Clegg, chief legal counsel of the anti-affirmative action Center for Equal Opportunity, thinks so. Furthermore, for him, the Grutter decision "means this issue will have to be fought out school by school and state by state. We're going to use all the different weapons at our disposal." Ward Connerly, who led the successful effort to rid the University of California system of its affirmative action policies, has already pledged to take his fight to other states.
As important as the decision was, it was still handed down with a distinctly inconclusive air. Scalia, in an opinion dripping with disdain, foresaw only more litigation. "[T]oday's Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation," he wrote. Of course, Scalia no doubt would love nothing more than another shot at this issue. After all, this is a Court that's moving rightward, and should either Justice John Paul Stevens or O'Connor step down, the 5-4 Grutter majority will be gone. Indeed, many Court-watchers were surprised to see Justice Breyer, in the past a staunch supporter of affirmative action, join the majority in striking down the Michigan undergraduate admissions program. And Justice O'Connor's decision even came with an expiration date of sorts. To assuage her discomfort with the idea of a permanent preferences program, O'Connor, near the close of her decision, wrote, "The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
So, as Randall Kennedy put it, "the struggle goes on." But affirmative action's supporters can be thankful that now they're fighting from firmer judicial ground.
Drake Bennett is a Prospect writing fellow.
