The Supreme Court's Divided Rulings in the University of Michigan Affirmative Action Cases:
What Does it All Mean?

This week, the Supreme Court upheld the use of race in admissions decisions by the University of Michigan Law School. But at the same time, it struck down as unconstitutional that same university's affirmative action program at the undergraduate level.

Understanding the differences between the constitutional law school program and the unconstitutional undergraduate program will obviously be critical to colleges and universities, as they re-examine their own policies to ensure they are on the legal side of the line.

But beyond these important practical implications, the two cases provide a window on the operation of the Court and even on the Justices' psyches.

Some Background: The Bakke Case and Its Legacy

The famous 1978 case of Regents of the University of California v. Bakke was the precedent on affirmative action in education with which the Court had to reckon when it decided the Michigan cases.

There, the Court invalidated the U.C. Davis Medical School's admission program--under which sixteen out of one hundred seats in the entering class were reserved for members of designated racial and ethnic minority groups. But it also reversed an injunction by the California Supreme Court that had barred all use of race in university admissions.

That led to an important question: If universities could not set aside specific seats for minorities as U.C. Davis had done, in what ways could they use race in admissions?

According to Justice Powell, who announced the Court's judgment in Bakke, universities could take account of race as a "plus factor" in evaluating a candidate as an individual whole. However, they could not insulate minority candidates from competition with non-minority candidates, as U.C. Davis had done by designating special minority seats.

Justice Powell wrote only on his own behalf in Bakke; no other Justice joined his opinion. As a result, over the succeeding twenty-five years, there has been some uncertainty over whether his views were binding.

Most lower courts treated them as dispositive. However, in recent years a number of courts had ruled that Powell's views either were never controlling, or if they were, that they had been superseded by subsequent Supreme Court cases.

Nevertheless, there has been general agreement, among universities and lower courts, as to what Powell's opinion means if it is binding: numerical quotas are forbidden; flexible targets based on pluses are permissible.

The Reason the Undergraduate Program Was Struck Down: Quantification

In this week's University of Michigan cases the Court, somewhat surprisingly, adopted Justice Powell's views, including the plus/quota distinction.

In the law school case, the Court found no quota. Each year, the law school sought a "critical mass" of disadvantaged minority students - instructing admissions officers that, in considering each file in its entirety, they should be on the lookout for generally qualified applicants who would contribute to that critical mass.

The plaintiffs demonstrated that, at the law school, other things being equal, disadvantaged minority applicants had a substantially better chance of being admitted than non-minority students. But that fact, the majority said, was consistent with a permissible plus-factor approach.

In the college case, the Court disapproved of the fact that admissions officers gave the same twenty-point bonus to all disadvantaged minority applicants. To process its large volume of applications, the undergraduate admissions office assigned points for various categories--such as high school grades, test scores, athletic prowess, and membership in a disadvantaged minority group.

That's not exactly a quota in the sense that Bakke condemned. No seats were designated as minority-only. And all applicants competed with one another, albeit on not exactly the same terms: a non-minority applicant who garnered twenty-one extra points elsewhere in the application could gain a seat in the class in preference to a minority applicant.

Nevertheless, the rigidity of the numerical approach, six Justices thought, denied the kind of individualized treatment that Powell's opinion in Bakke required of a permissible affirmative action program.

Does Focusing On Quantification Make Sense?

The result: attorneys for universities across the country will be advising their admissions offices that they can continue to use race as a plus factor. But what they must not do is to expressly quantify it. Linguistic benchmarks such as "critical mass" are acceptable. Point systems that give extra points for race are not.

Is that a sensible distinction? On the surface, it appears not to be.

Consider the perspective of the applicant: He or she predominantly cares about how much his or her chances of admission are enhanced or diminished by his or her race--and in the end, whether he or she will be admitted. Will I get the thin envelope or the fat envelope? In contrast, he or she will probably be indifferent as to whether the admissions officers assign a number based on race.

The evidence in the law school case showed that disadvantaged minority applicants received a substantial boost--they were predictably more likely, due to race, to get the fat envelope. Yet, under the logic of the Court's rulings, even a very small but fixed numerical constant boost for minority status is worse than a much larger flexible boost that is never formally quantified by admissions personnel.

Furthermore, as Justices Souter and Ginsburg argued in Gratz, a fixed numerical score for racial minority status has the virtue of honesty. These two Justices thought the law school program permissible. But interestingly, they actually preferred quantification, given the choice: If one were to distinguish between giving varying and fixed weights to race as a factor in admissions, they thought fixed weights are more objective and transparent, and thus a better idea.

Nonetheless, there is something to be said for the idea that calculations which are permissible if performed implicitly are impermissible when made explicit. For example, expressly putting a dollar figure on human life seems to many far worse than taking actions that are in some sense equivalent to doing so.

Consider the litigation concerning the Ford Pinto. Studies showed the Pinto was vulnerable to catching fire during rear impacts. What outraged the jury, however, was that Ford had consciously and expressly decided it was cheaper to pay damages to victims of future accidents than to change the car's design: As a result, the jury ordered Ford to pay punitive damages for its callousness.

Was the jury irrational, given that the safety/cost tradeoff is routinely made at large companies--albeit in more general terms? If not, there may be something to be said for avoiding express quantification in racial classifications, too.

Visible symbols can make a difference. For this very reason, the Supreme Court has invalidated bizarrely-shaped electoral districts in which race was "the predominant factor" in the decision to draw irregular boundaries. A legislature's subtly shifting boundaries to take account of race along with other factors is one thing, in the Court's view; but creating geographic monstrosities is another.

As Justice O'Connor stated for the Court in the 1993 case of Shaw v. Reno, "reapportionment is one area in which appearances do matter." The Michigan cases show that university admissions is another such area.

Judging Harmful and Beneficial Racial Classifications By the Same Standard

Besides resolving the question of what affirmative action programs universities could use, the Michigan cases also resolved a larger, lingering question: Will the Court treat racial classifications the same way when they benefit racial minorities, as when they burden them? (Prior cases over the last decade and a half had said yes, but always over substantial dissent.)

Justice Powell's answer in Bakke was yes: All racial classifications are subject to the most exacting level of judicial review--so-called "strict scrutiny." In the Michigan case, all nine Justices seemed to agree: every Justice joined at least one opinion that applied strict scrutiny to an affirmative action program.

The unanimity is deceptive, however. At least three of the Justices--Souter, Ginsburg and Breyer--questioned the Court's attachment to the proposition "that the same standard of review controls judicial inspection of all official race classifications."

These Justices were willing to apply strict scrutiny only if the standard means something different in affirmative action cases than it means in challenges to policies that deliberately disadvantage racial minorities.

Meanwhile the remaining members of the Grutter majority--Justices Stevens and O'Connor--in fact applied a not-so-strict version of strict scrutiny. As result, there is a five-Justice majority in favor of judging assertedly benign racial classifications under what is in practice a substantially more lenient standard than the Court would apply to, say, Jim Crow laws.

Is Diversity a "Compelling Interest"? Six or Seven Justices Say Yes.

There is another issue that has dogged the lower courts since Bakke: Do universities serve a "compelling interest" (the kind of interest necessary to permit a racial classification) when they attempt to assemble a racially diverse student body? And if so, what exactly is that interest?

In Bakke, Justice Powell said they did--and the interest was the First Amendment interest in promoting the expression of diverse viewpoints on campus. He reasoned that such expression in a university was part of academic freedom; that academic freedom is itself a constitutional value under the First Amendment; that viewpoint and background are connected (though not perfectly so); and thus that universities could use race as one factor among others in their efforts to compose a diverse student body. But controversy remained as to whether Powell's individual view was also that of the current Court.

In her majority opinion on the law school's program, Justice O'Connor formally and unambiguously endorsed Justice Powell's position. Justice Kennedy also agreed that diversity is a compelling interest. (Kennedy thought the law school program was not properly limited, but he indicated that he would be willing to uphold a different sort of affirmative action program, favorably citing an amicus brief filed by Amherst College and others.)

Meanwhile, even Chief Justice Rehnquist at least did not deny that diversity is a compelling interest. Instead, he simply acknowledged that the Court had deemed diversity compelling, and cagily declined to offer his own view.

That left only Justices Scalia and Thomas expressing the view that diversity is not a compelling interest. Six Justices--possibly seven, since Rehnquist did not touch on the question - believe it is.

Defining Diversity Even More Broadly Than Justice Powell Did In Bakke

Perhaps most intriguingly, Justice O'Connor advanced a conception of diversity that is more encompassing than the view taken by Justice Powell in Bakke.

To see why, it's necessary to first explore the subtleties of Justice Powell's opinion. At the same time that he embraced an interest in diversity, Justice Powell also rejected other arguments U.C. Davis made to justify its program.

Specifically, Davis argued that the medical school had an interest in remedying societal discrimination. Justice Powell did not deny that societal discrimination contributed to the disparities in numerical measures of qualifications. But he thought it unfair for non-minority applicants (who were not themselves responsible for societal discrimination) to have to bear the cost of the remedy, by foregoing the chance to compete for specific seats in the medical school class.

U.C. Davis also argued that it had an interest in educating minority doctors who presumably would be more likely to practice in under-served minority communities. But Justice Powell found insufficient evidence that this supposition was true.

Broadly speaking, Powell's Bakke opinion had come to be read for the proposition that a voluntary university affirmative action program cannot be justified by the external impact of the university's graduates. Rather, it must be sustained on the basis of the internal effect of the student body's composition.

That may not have been quite what Powell originally meant. In any case, this contention was easily mocked: Was the real reason for affirmative action, critics asked, so that the minority students could enhance the educational experience of the non-minority students? Were minority students merely there to provide a kind of cultural exchange program for the non-minorities?

To her credit, Justice O'Connor rejected the requirement that an affirmative action program be justified only by its internal effects. Citing briefs filed by business leaders, retired military officers and educators, she explained that universities could rightly be concerned about the racial composition of the highest ranks of business, the armed services, and government in composing their classes. Education, she recognized, is not an end in itself; it is preparation for the future, and universities could consider that fact.

Is Justice Thomas a Radical Egalitarian? No, He's Just Angry.

Every one of the nine Justices wrote at least one opinion in the two Michigan cases. Perhaps the most interesting was the dissent of Justice Thomas (joined by Justice Scalia) in Grutter. He argued, among other things, that the problem in the case was entirely of Michigan's own making.

Because the University of Michigan Law School is so good, it can afford to reject all but the most highly qualified applicants. Justice Thomas suggested that if the school admitted a higher percentage of its applicants--or admitted its applicants by some measure other than grades and test scores on which non-minority students outperform minorities--it could produce a diverse student body without resorting to race-based preferences.

This argument turns on Justice Thomas's further contention that because the University of Michigan Law School mostly educates non-residents who will overwhelmingly make their careers outside of Michigan, "the Law School's decision to be an elite institution does little to advance the welfare of the people of Michigan or any cognizable interest of the State of Michigan." If having an elite law school doesn't serve any state interest, it certainly serves no compelling interest, and if the law school itself serves no compelling interest, then a diverse student body in the school is not compelling either.

It is difficult to know whether Justice Thomas intends this argument to be taken seriously. Does he really mean to suggest that states derive no concrete benefit from having prestigious educational institutions located within their borders (and in the case of the University of Michigan, providing an admissions advantage and tuition discount to their residents)? Does the Massachusetts economy not benefit from being home to Amherst, Boston College, Boston University, Harvard, U. Mass, M.I.T., Northeastern, Smith, Wellesley, Williams and other institutions of higher education?

It might be objected that most of these are private institutions, but the difference is irrelevant in the current context. Under the Court's longstanding precedents, whatever rule of law applies to state institutions of higher education under the Equal Protection Clause applies identically to private ones under Title VI of the 1964 Civil Rights Act. So if there's no legally cognizable interest furthered by the excellence of the University of Michigan Law School, then there's no cognizable interest furthered by the excellence of any law school--or for that matter, of any university more generally. In the information age, that's a peculiar argument indeed.

In any event, the real heart of Justice Thomas's dissent in Grutter is more personal. He harbors an almost visceral hatred for what he terms "know-it-all elites." His dissent uses the word "elite" or "elites" no fewer than twenty times. How did this graduate of Yale Law School come to despise the sort of institution that opened so many doors for him?

The answer, it seems, is that he believes affirmative action stigmatizes not only its beneficiaries, but all people of color: "When blacks take positions in the highest places of government, industry, or academia," he asserts, "it is an open question today whether their skin color played a part in their advancement."

Certainly, Justice Thomas has a point. Unfortunately, many people do wrongly assume that African Americans with outstanding credentials and records do not deserve to be where they are, and that is a real cost of affirmative action. But, equally unfortunately, they might well continue to do so even if affirmative action were abolished.

For this and other reasons, most African Americans are willing to bear the cost of possible stigma in exchange for the benefit of increased likelihood of admission to elite educational institutions. Justice Thomas plainly disagrees, but what is most disappointing is that he fails to consider their arguments that affirmative action--though stigmatizing in the eyes of some--is still worthwhile.

Is Affirmative Action Forever? No, Just Another Twenty-Five Years.

Finally, the court's opinions offered one odd twist on prior law. The Court had previously made clear that affirmative action could not last forever. But now some believe--incorrectly, in my view--that it has added a specific sunset provision to such programs.

Justice O'Connor noted that the number of minority applicants with high grades and scores had increased in the twenty-five years since Bakke was decided. And she predicted that in another twenty-five years, racial preferences would no longer be necessary.

Legislatures occasionally include sunset provisions in the statutes they enact, but it is highly unusual for a court to do so. Moreover, the period of twenty-five years is completely arbitrary, seemingly drawn only from the fact that Grutter and Gratz came to the Court twenty-five years after Bakke. Accordingly, Justice O'Connor probably meant her reference to what would happen in twenty-five years as an aspiration or a rhetorical point.

Nonetheless, the dissenters took her to be expressing a rule of law: When racial preferences are no longer necessary, they will be unconstitutional (because they will not be "narrowly tailored" as required by strict scrutiny), and that will happen in twenty-five years.

Only time will tell if the Court truly believes that affirmative action programs have a twenty-five-year sunset provision. In the dissenters' opinion, the Michigan rulings will expire on June 23, 2028. We'll have to wait and see.