Supreme Court Upholds Use of Race in Admissions Decisions

Civil Rights Monitor

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Summer 2003

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.

Supreme Court Decision (Grutter)

Leadership Conference Brief

"[M]ajor American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints. (Brief for 3M. et al.)" (p. 18)	"Corporate leaders - running businesses, selling products, and promoting innovation for a diverse populace - likewise require a practical appreciation of the differences and similarities of both their colleagues and their customers. See, e.g., Amicus Br. Of General Motors Corp&" (p.16)
"[S]tudent body diversity promotes learning outcomes and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals." (p.18)	["Writing for a unanimous Court, Chief Justice Burger recognized over 30 years ago that] educators should have discretion to take race into account 'in order to prepare students to live in a pluralistic society'&." (p. 16) "The contributions of a diverse learning environment to future leadership are significant in professional and graduate studies as well as college. Students preparing for professional practice benefit from training in environments that resemble the world in which they will work." (p. 16)
"We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to 'sustaining our political and cultural heritage' with a fundamental role in maintaining the fabric of society." Plyler v. Doe, 457 U.S. 202, 221 (1982). (p.19)	"Education promotes the civic values necessary to deal with the diversity of American society, to advance the historic goal of national unity, and to draw strength from the pluralism of our society&education helps to 'maintain[]the fabric of our society." Plyler v. Doe, 457 U.S. 202, 221 (1982).
"This Court has long recognized that 'education ... is the very foundation of good citizenship'. ...For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity." (p. 19)	"The unique place of education in American society, its centrality to the achievement of the national goals & and to tackling the challenges and opportunities posed by the pluralism of American society, substantially elevates the importance of diversity in education." (p. 13)
"[U]niversities, and in particular, law schools, represent the training ground for a large number of our Nation's leaders." Sweatt v. Painter" "Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States House of Representatives&The pattern is even more striking when it comes to highly selective law schools." (p. 20)	"Universities are the training grounds for the leaders of American society. Their mission is to produce young men and women equipped to deal with the challenges of modern life and to better our social order&" (p.13); Professional training enriched by the varied experiences of a diverse student body better prepares students to serve their communities. See, e.g., Sweatt v. Painter (p. 16). "Preserving diversity in legal education is particularly imperative given the leadership roles that attorneys historically have assumed in government and other civic contexts." (p. 17.)
"The Law School does not premise its need for critical mass on "any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue&To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School's mission and one that it cannot accomplish with only a token number of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual's views, so too is one's own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters." (p. 21).	"[As these institutions concluded] fostering a diverse student body creates an educational community of individuals who bring different personal histories to their social interactions, to their extracurricular activities, and to their studies. It does not assume that race and ethnicity correlate with viewpoint, any more than geography and economic status do. Rather by expanding the horizons of students who may not have previously interacted with those of different races and backgrounds, diversity in higher education enables students to share experiences and to learn firsthand how people are the same as well as how they differ." (p. 14)
"[Percentage plans] may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university." (p. 28)	"Percentage plans override the individualized judgment of educators and admissions officials...[They] are a far cruder alternative than considering race as one of many factors in admissions decisions." (p. 27)

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.