ANN ARBOR, MICHIGAN -- The Supreme Court finally agreed this week to hear Gratz v. Bollinger and Grutter v. Bollinger, two lawsuits challenging the use of race in the admissions policies of both the University of Michigan and its law school. The cases have been pegged as candidates for certiorari since they were filed in the 1997, in response to the 5th Circuit's decision in Hopwood v. Texas, which struck down the University of Texas' law school admissions policy.
At the law school here in Ann Arbor, where I am enrolled as a first-year student, the attitude is, oddly, ecstatic. Odd because the law school's admissions policy was affirmed in the most recent appellate decision -- and a denial of cert would have secured the policy for several years to come. But it would have been a tenuous security at best, as it has been for the last five years. The stark difference between Hopwood and opinions in other circuits (and between the wings of the circuits themselves) -- not just on the issue of race in admissions, but also regarding the proper interpretation of pluralist Supreme Court opinions in which the "majority" disagreed about the rationale behind its holding (Bakke v. Regents of California, the court's only opinion on race in college admissions, being a prime example) -- constitutes a classic "circuit split." High court intervention was inevitable.
Besides, for the law school "cert" means a place in the history books, not to mention more mentions in the newspapers, more "60 Minutes" profiles, more CNN coverage. (One of my classmates has already had the special opportunity to flub a torts question in front of national TV news cameras.) The school's administrators also seem breezily confident that Supreme Court review will follow the 6th Circuit ruling -- rather than the earlier district court, which delivered a firm rebuke to the university. "We remain confident that our admissions policy is constitutional," the law school Dean wrote in an e-mail. "We believe that the Supreme Court should not, and will not, use this lawsuit to change the law and prohibit what is now permitted." Another email from the university's president sounds like the school is gearing up to face Michigan State -- "we will prevail" -- not the Supreme Court.
The problem with the 6th Circuit decision is that it was handed down 5-4 along "party lines," and followed hard upon by a powerful dissent. If this party line formula holds at the Supreme Court, obviously the university is in trouble. The school seems to want to believe that this is not a "party" issue; or alternatively, as a statement on its website suggests, that the conservative base is all but wrapped up: "Secretary of State Colin Powell and former President Gerald Ford have spoken out in support of our admissions policy, as have General Motors, 3M and 30 other major corporations." Of course, if Colin Powell and Gerald Ford were the guiding lights of conservative politics -- well, I would be one happy liberal.
In fact, both cases have been nurtured since their inception by conservative legal groups -- in particular, the Center for Individual Rights -- that are ecstatic at the grant of certiorari. Roger Clegg, general counsel of the Center for Equal Opportunity, has argued that once the Supreme Court cleans up the mixed interpretive legacy of Bakke -- wherein Justice Lewis Powell's "diversity" rationale, unendorsed by the other justices, somehow became the law of the land -- race-conscious admissions policies won't have a leg to stand on. In the 6th Circuit decision, Clegg found the majority's reliance on Bakke to be "a weak reed" next to the ringing indictment in Judge Boggs' scholarly dissent.
Ann Arbor, we have a problem? Maybe, maybe not. A number of factors that have surfaced but not yet fully come into play throughout this legal debate may prove decisive in its final stage. For one, the doctrine of stare decisis -- the Court's reluctance to overrule previous doctrine -- may emerge as a decisive dark horse argument, much as it did in a similarly climactic constitutional confrontation over abortion in the 1992 case, Planned Parenthood v. Casey. In Casey the Court felt obliged to consider "the cost of a rule's repudiation" along with the rule's constitutional underpinnings. That is, the Casey majority might have contested that Roe v. Wade was correct constitutional law in 1972 -- but 20 years later, it acknowledged that overturning what had effectively become the law of the land in the intervening quarter century would carry significant costs.
The Casey court is still mostly intact, and it is possible that this court will adopt a similar approach. Bakke, though a bit of a legal mess, is hardly Plessy v. Ferguson, and Powell's "diversity" rationale, though perhaps constitutionally problematic in 1978, has since deeply saturated the legal and cultural discourse and achieved wide acceptance. (Why even General Motors thinks so!) In fact, many courts that have struck down admissions policies have first acknowledged that diversity does constitute a legitimate "compelling interest" -- before explaining that the particular policies themselves are not "narrowly tailored" to its achievement.
The diversity rationale is also supported by more empirical evidence than ever before. Grutter in particular was unique in its reliance on a detailed study -- compiled from "multi-institutional national data, the results of an extensive survey of students at the University of Michigan, and data drawn from a specific classroom program" -- which supported the conclusion that "students who experienced the most racial and ethnic diversity in classroom settings and in informal interactions with peers showed the greatest engagement in active thinking processes, growth in intellectual engagement and motivation, and growth in intellectual and academic skills." College diversity experience also led to more "racially and ethnically integrated lives in the post-college world." Michigan law school also conducted an exhaustive survey of its minority alumni between 1970 and 1998, and found no statistically significant difference between them and a comparative pool of white alumni in income level, job satisfaction or other measures.
Ultimately the Supreme Court will be left with two facts: First, schools want -- and deserve -- racially diverse student bodies; and second, given the testing gap between black and white applicants, a flexible, race-conscious admissions policy is the best -- and only -- way to presently achieve this. The schools -- and social science in general -- admit ignorance as to the underlying causes of the testing gap. The conservative position holds that until blacks "fix" this testing gap themselves -- that is, get their act in gear -- any recourse to institutions is futile and counterproductive. Indeed, the right's continued lack of faith in the ability of institutions to bring about broad change through affirmative programs is reminiscent of a similar argument the Court made in its Plessy ruling more than 100 years ago:
Legislation is powerless to eradicate racial instincts or abolish distinctions based upon physical differences, and attempts to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other, civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane.
Of course, the picture then -- as now -- was considerably more complicated than the Court would have had the public believe. There are, no doubt, explanations for the testing gap, but they are numerous, often invisible, complex and likely self-reinforcing. The tests themselves are not inviolate measures of worth; indeed, given the wide range of talents appreciated by and useful to society, larger questions about test-guarded elitism in higher education still remain. Until the puzzle is solved there may be many essential things that institutions can do to further social aims. Schools themselves are more or less asking for the ability to make do.
The unforgivable sin of Plessy was the blind eye it turned to manifest inequality that, for whatever reasons (invisible, complex, self-reinforcing), gave the lie to the "separate but equal" doctrine. In the cases now before the Court, to look past the substantial benefits of diversity in admissions and the problems associated with the testing gap in favor of the sort of damn-the-consequences proclamation of equality that "reverse discrimination" conservatives prefer -- to demand a nationwide, numbers-only admissions policy -- could have disastrous repercussions. There is reason to believe -- to hope -- that this Court will be cautious.
Aaron Marr Page is a first-year student at the University of Michigan Law School.
