Breyer speaks out on affirmative action

by Zachary Goldstein | 10/14/03 5:00am

The U.S. Supreme Court was back in session last week with a new slate of cases ready to be tried in the upcoming term, but this weekend one of the nine Justices was not in the nation's capital, choosing instead to venture up north to Hanover.

Justice Stephen Breyer gave a speech Sunday afternoon put on by the Rockefeller Center, in which he discussed his career as a Justice and his view of the role of the Supreme Court in public policy. On his way out of town, yesterday morning, Breyer elaborated on his views on several more specific issues " most notably the June decisions in the two cases filed against the University of Michigan dealing with racial preference as a factor in college admissions.

"Yes, I was satisfied. I was in the majority on both cases," Breyer said. "I think that in effect what the Court said was there had to be individualized consideration of applications, but race could be used as a factor."

In the two cases " one against the undergraduate school and one against the law school " the court ruled 5 to 4 in favor of the law school's program, which uses race as one factor in the admissions decision, while ruling 6 to 3 against the specific point-based system used for Michigan undergraduate admissions.

The decisions have been widely interpreted as a statement of approval for the use of race in higher education admissions, in effect approving admissions systems based on individualized assessment of applicants, similar to those used at Dartmouth and at many other selective institutions across the country.

"It also said that in 25 years the Court expected that the need for affirmative action would diminish or disappear," Breyer said.

Based on the numbers given in briefs filed with the court, Breyer said that it would seem that "there's more segregation in public schools than there was 25 years ago," necessitating a "tremendous effort" in all levels of education to fix these disparities.

"Segregation means that minority students are often in poorer schools, they're often without the resources, they're often in bad neighborhoods, and quite obviously it would be necessary, if the need for affirmative action is to diminish in the next 25 years, that people do something about that," Breyer said. "So I think that is a considerable challenge for everyone in the United States."

Even though the legality of the use of race in admissions was upheld in the decisions, the overturning of the undergraduate program does leave some legal ambiguity as to how those means can be achieved. According to Breyer, however, that is "not something that will be directly in front of us as a court."

"I think that people who choose are quite capable of using factors as what that is " a factor " without necessarily being able to give it a precise numerical weight," Breyer said. "I imagine that admissions officers are able to do that. I assume when people say this is how they're doing their job that's how they do it. They tell the truth about it. I think probably we'll take at face value what the universities tell us. I do."

As the upcoming term unfolds Breyer expects the pending campaign finance cases to be "very interesting and very important."And he leaves Dartmouth having enjoyed his time here. "I thought the students were lively, the faculty were very interesting -- and great fun."