Affirmative action upheld, but justices set some limits

WASHINGTON (BP)--The U.S. Supreme Court has ruled in favor of affirmative action as a constitutional method of establishing racial diversity in higher education while at the same time setting limits on such programs.

In opinions released June 23, the justices affirmed by 5-4 the University of Michigan Law School's use of race as a factor in admitting students, but they rejected by 6-3 the same school's undergraduate admissions program, which grants 20 points of a maximum possible of 150 to racial or ethnic minorities.

The Michigan Law School uses a narrowly tailored approach to satisfy a "compelling interest in attaining a diverse student body," Associate Justice Sandra Day O'Connor wrote in the court's opinion in Grutter v. Bollinger. In rejecting the university's undergraduate admissions system, Chief Justice William Rehnquist said the guidelines are too broad in seeking to achieve diversity and therefore violate the equal protection clause of the 14th Amendment.

President Bush commended the court for seeking to achieve "a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law. There are innovative and proven ways for colleges and universities to reflect our diversity without using racial quotas. The court has made clear that colleges and universities must engage in a serious, good-faith consideration of workable race-neutral alternatives. I agree that we must look first to these race-neutral approaches to make campuses more welcoming."

Conservatives generally expressed displeasure with the court, some more fervently than others.

"The court did make it clear in its 6-3 undergraduate decision that heavy-handed, race-norming quotas based on automatic points just for being a member of a particular ethnic group were clearly beyond the pale of the Constitution's guarantee of equal protection under the law. That's the good news," said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. "The bad news is that in its 5-4 decision in the Michigan Law School case the justices made it clear that they still consider it constitutional to use race as a factor in admissions.

"They did at least make it clear that consideration of race as a factor must be done on an individual basis. This hopefully would mean that if an African American or Hispanic doctor's son were being considered for admission that he would not be given extra consideration based on his ethnicity as opposed to an African American or Hispanic janitor's son," he said.

Abigail Thernstrom, a member of the U.S. Commission on Civil Rights, told, "The court should be ashamed of itself, and this nation should be ashamed of itself for celebrating. We have just signed on to quotas for the foreseeable future and for decades to come. We're going to have race-driven decision making from now on with the moral legitimacy of the court. It's disgusting."

Proponents of racial preferences welcomed the support for affirmative action.

University of Michigan President Mary Sue Coleman said in a written release the court delivered "a tremendous victory for the University of Michigan, for all of higher education and for the hundreds of groups and individuals who supported us. The court has provided two important signals. The first is a green light to pursue diversity in the college classroom. The second is a road map to get us there. We will modify our undergraduate system to comply with today's ruling, but make no mistake: We will find the route that continues our commitment to a richly diverse student body."

Ralph Neas, president of People for the American Way, called it a "victory for America's march from our segregated, racist past. Today, the court gave us a signal that affirmative action can stay in order to promote diversity. I hope they provided enough guidance to make other programs workable."

In the court's assessment of the law school program, O'Connor said the justices were satisfied it did not operate on a quota system in which a fixed number of slots are reserved for certain minorities. The school's "goal of attaining a critical mass of underrepresented minority students does not transform its program into a quota," she wrote.

A school's admissions system "must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application," O'Connor wrote. The law school's program differs from the undergraduate system in that it "awards no mechanical, predetermined diversity 'bonuses' based on race or ethnicity," she wrote.

In his dissent, however, Rehnquist called the law school's program a "naked effort to achieve racial balancing."

The Supreme Court first upheld race-conscious admissions policies 25 years ago in Regents of University of California v. Bakke, and O'Connor said in her opinion the justices hope 25 years from now "the use of racial preferences will no longer be necessary to further the interest approved today."

Joining O'Connor in the majority were John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Antonin Scalia, Anthony Kennedy and Clarence Thomas joined Rehnquist in dissenting.

O'Connor, however, joined Rehnquist and four others in a judgment against the university's undergraduate admissions program.

The point system utilized by the university violates the equal protection clause of the Constitution, as well as the Civil Rights Act of 1964, Rehnquist wrote for the majority. The automatic crediting of 20 points to every minority applicant demonstrates the system fails to provide "individualized consideration," he wrote. This aspect conflicts with the high court's guidelines established in the 1978 Bakke opinion, Rehnquist said.

Land said, "These cases reveal the fact that America at every level, from the Supreme Court down, is still deeply divided about this issue. One would hope that universities and others considering affirmative-action programs would continue to seek for better race-neutral alternatives to achieve the desired goal of diversity. For example, if economic deprivation had been used at the Michigan Law School as opposed to racial factors, it would have achieved a diversity almost identical to the one achieved by using race and ethnicity as factors."

Scalia, Kennedy, Thomas and Breyer joined Rehnquist and O'Connor in the judgment of the court in the undergraduate case, which is Gratz v. Bollinger. Stevens, Souter and Ginsburg dissented.

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