With Monday's Supreme Court rulings in the two cases against the University of Michigan, the use of race in higher education admissions received a much-anticipated statement of approval. Ruling 5 to 4 in favor of the Michigan Law School's program to achieve diversity, the Court in effect approved admissions systems based on individualized assessment of applicants, similar to those used at Dartmouth and at many other selective institutions across the country.
At the same time, the High Court struck down 6 to 3 the specific point-based system used for Michigan undergraduate admissions.
While both supporters and opponents of affirmative action have publicly claimed victory in the decisions, the impact of the Court's ruling affirms the legality of race as a consideration factor in higher education admissions.
"This is what I think universities have been craving: a road map," said former Dartmouth President James O. Freedman after the decisions were announced. "This legitimates legally what we all thought was educationally appropriate."
University of Michigan President Mary Sue Coleman interpreted the rulings similarly.
"The court told us that the law school system that we use is perfectly legal," Coleman told the Associated Press. "They upheld it completely, and so in that sense, they've given us a road map for changing our undergraduate system ... we're so happy because the central principle is affirmative action can be used, and that's what we were fighting for."
Affirming Precedent
In endorsing the Michigan Law School's admissions program, the Supreme Court effectively confirmed its landmark 1978 Bakke decision, in which Justice Lewis Powell, who cast the tie-breaking vote in the case, contended that it was constitutional for an admissions office to consider an applicant's race as a "plus" in an admissions decision.
The overall ruling in Bakke, however, deemed quotas an unconstitutional method for achieving diversity. Powell was just one of six opinions, and he stood mostly alone in his assertion that race could be used as a plus factor in an individualized assessment.
However, Monday's ruling extended support of Powell's opinion to the majority of the court, giving admissions officers the legal green light to proceed as most -- including Dartmouth's -- already had done in the post-Bakke era.
In the majority opinion in the law school case, Justice Sandra Day O'Connor declared that the Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."
"Today we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions," O'Connor continued.
At another point in the decision she reiterated Powell's emphasis that "truly individualized consideration demands that race be used in a flexible, non-mechanical way."
O'Connor also sided with the Court majority in the case against the undergraduate school in deeming the point-based system unconstitutional, as contrasted with the law school's program, describing it as "non-individualized" and "mechanical."
Chief Justice William Rehnquist, in his majority opinion in the undergraduate case, also relied on the precedent set forth by Bakke 25 years ago.
"Nothing in Justice Powell's opinion in Bakke signaled that a university may employ whatever means it desires to achieve the state goal of diversity without regard to the limits imposed by our strict scrutiny analysis," Rehnquist said.
Dissenting Voices
However, despite the Bakke ambiguity being clarified in the law school decision, Justice Antonin Scalia argued that this decision would result a new set of questions and ambiguities which would have to be answered in "future lawsuits" probing whether an applicant had received "enough evaluation 'as an individual.'"
Though four dissenting votes were filed in the law case, it was clear that only Scalia and Justice Clarence Thomas objected explicitly to the constitutionality of affirmative action in general, not just to its use in the specific law school example.
"Every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all," Thomas said in a dissenting opinion that Scalia also signed.
Rehnquist wrote the principal dissenting opinion in the law school case. Speaking for all four dissenters, including also Justice Anthony Kennedy, he attacked the law school's admissions system less for its premise and more for how it works in practice, calling it no more than "a carefully managed program designed to ensure proportionate representation of applicants from selected minority groups."
Despite the warnings and objections of the dissenters, the 5 to 4 ruling in the law school case represents a "huge victory for higher education," said Maureen Mahoney, defense attorney for the Michigan Law School.
A Blueprint for the Future
Not only does the decision verify the constitutionality of race as a factor in admissions decisions, as set forth by Powell in Bakke, but it also establishes a blueprint for institutions for how to set up a constitutional affirmative action program, Mahoney said.
While programs at most selective institutions will probably not have to be modified, the biggest impact, she said, will be at very large public institutions where they have tried to use more efficient and cost effective procedures for achieving diversity -- such as the points system used for Michigan's undergraduate admissions. Those schools will need to change their programs to be more individualized.
Though some critics have described the decision as a "split decision" because the cases resulted in majorities on opposite sides, the effective result of the joint decision is in fact a "ringing endorsement for race-conscious admissions," Mahoney said.
Nor, according to Mahoney, were the justices as evenly split as they appeared.
"When you look at the decisions only two justices actually say that you cannot take race into account at all: Scalia and Thomas," Mahoney said. "And six justices said you could, though only five agreed with the specific program used by the law school."
Indeed, Kennedy expressed support for the premise of race as a factor in admissions, though he voted against both Michigan programs.
The Court's ruling on the law school case alone is sufficiently clear so as to preclude educational affirmative action litigation in the future, Mahoney sai-d.
"If a school follows the law school model which has been established as constitutional and adopts it in good faith it would be exceedingly difficult to challenge its constitutionality," she said.
Lee Bollinger, president of Columbia and former president of Michigan, described it as "misleading and inaccurate" to consider the decision a "split" or "murky" one. "It is about as clear as constitutional law gets," he said in a Washington Post editorial.
"By rejecting an absolutist argument -- by affirming the notion that race may be considered in an appropriate manner in the admissions process -- the court has helped ensure that public and private colleges and universities in the United States will remain accessible to all Americans of all backgrounds," Bollinger said.
And in what came as somewhat of a surprise to affirmative action supporters, the White House, for the most part, agreed.
Although he had previously filed a brief with the Supreme Court against Michigan in the two cases, President George W. Bush applauded the Court in a statement Monday, without mention of his previous brief for "recognizing the value of diversity on our nation's campuses.
"[Monday's] decisions," Bush said, "seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law."
