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In the Courts
Supreme Court Upholds Use of Race in Admissions Decisions
In a closely watched decision on affirmative action, the U.S. Supreme Court reaffirmed that universities may take race into consideration as one factor among many when selecting incoming students.
In a 5-4 opinion written by Justice O'Connor, the Court in Grutter v. Bollinger specifically endorsed Justice Powell's view in Regents of the University of California v. Bakke that student body diversity is a compelling state interest that can justify using race in university admissions.
"Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized, " the Court stated.
Wade Henderson, executive director of the Leadership Conference on Civil Rights, called the Supreme Court's decision "a great victory for America."
"In a close decision, the Supreme Court today reiterated America's commitment to affirmative action," said Henderson.
Ever since the Court's 1978 decision in Bakke, educational institutions throughout the country have utilized various affirmative action programs as a means of counteracting the effects of past racial discrimination and providing greater educational opportunities to racial and ethnic minorities.
Opponents of affirmative action, however, have attacked these policies in the federal courts with increasing frequency.
In Grutter v. Bollinger, the Court upheld the University of Michigan's law school's affirmative action program. Citing Brown v. Board of Education for the proposition that "Education…is the very foundation of good citizenship," the Court stated, "The diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity."
Many commentators noted the important role of the friend-of-the court briefs in the case. Why many of the briefs made very similar points, the LCCR/LCCREF brief, written primarily by Rob Weiner of Arnold and Porter and William Taylor, LCCREF's president, had several passages that were very similar to the language adopted by Justice O'Connor in the Grutter opinion.
Gratz v. Bollinger involved a separate challenge to the undergraduate admissions program used at the University of Michigan, which differs from the program used at the law school. The undergraduate program uses a system that assigns points for certain factors including race, while the law school took a more holistic approach, resulting in an overall score for each applicant. In a 6-3 opinion written by Chief Justice Rehnquist, the Court held in Gratz that the university's use of race in this program was not narrowly tailored to achieve the university's asserted interest in diversity.
The Bush administration argued that the Michigan programs were unconstitutional because there is no showing that diversity could not be achieved through a "race neutral" alternative.
The Leadership Conference on Civil Rights (LCCR) and the Leadership Conference on Civil Rights Education Fund (LCCREF) filed a friend-of-the-court brief in support of the University of Michigan's affirmative action programs. LCCR/LCCREF's brief argued that racial diversity serves national interests of the highest order, and can be counted among the nation's greatest strengths. LCCR/LCCREF contrasted America's success in weaving successive waves of immigrants into the social fabric of the country and creating a strong, unified nation, with the ethnic, racial, and religious violence that has erupted in the Balkans, the Middle East, Central Africa, and Northern Ireland.
The LCCR/LCCREF brief also met head-on the Bush Administration's argument that so-called "percentage plans" are a satisfactory racially neutral alternative, making the case that percentage plans are in fact ill-suited to achieving racial diversity and undermine diversity by relying on continued educational segregation. Briefs supporting the university were signed by more than 60 corporations, more than 100 universities, retired military leaders, labor unions, civil rights and religious groups and nearly 14,000 law students.
During oral argument of the cases, Justice O'Connor and Ginsburg, among others, cited the amicus curiae brief submitted by retired military leaders and their argument that they could not have a diverse officers' core without consideration of race in admission to the military academies. Justice O'Connor specifically cited the needs of the military in her opinion in Grutter. Solicitor General Olson was unable to say whether he thought the military policy was unconstitutional.
A great deal of attention had been focused on Justice O'Connor, widely regarded as a swing vote. O'Connor was the first to question the attorney challenging the Michigan policies, asking him why race should be singled out when the university was facing a serious problem with thousands of applications for only a limited number of slots, and needed to make admissions decisions based on a number of factors.
Justice Scalia, on the other hand, expressed skepticism about the university's assertion that diversity was a compelling state interest. According to Scalia, the university had succeeded in creating a very selective law school, and it was predictable that it would exclude many minorities. If the university wanted diversity, it could simply lower its standards, Scalia suggested. Scalia dissented in Grutter, and joined the majority in Gratz.
The university rejected the argument that it must choose between a quality law school and diversity. The issue, countered attorney Maureen Mahoney on behalf of the law school, is whether there is a sufficiently compelling interest in allowing for the best education of all students-a position that was ultimately validated by the Court.