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 antiaffirmative 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.
