The U.S. Supreme Court Affirmative Action Decisions
Prepared by Professor Frank Cavico
The United States Supreme Court, in a very significant affirmative action decision in June 2003, involving the University of Michigan law school and undergraduate school, permitted the use of race as a preference factor in the college admissions process, but the court also issued a stern warning that colleges cannot use rigid affirmative action systems that resemble quotas and that they also must adopt race neutral policies as soon as practicable.
Justice Sandra Day O’Connor, writing for a 5-4 court majority, stated that the University of Michigan Law School did not violate the “equal protection” guarantee of the 14th Amendment to the Constitution. Significantly, Justice Sandra Day O’Connor, writing for the court’s majority, stated that the goal of creating a diverse student body was a sufficiently “compelling government interest” to justify the law school’s consideration of race as a beneficial admissions factor. She added, however, that race-conscious admissions policies should not go on forever. Twenty-five years from now, Justice O’Connor stated, the court would expect that racial preferences will no longer be necessary.
The University of Michigan’s undergraduate admissions policy– a point system that quantified the importance of race– did not survive the Court’s scrutiny in another companion case. In that case, Chief Justice William Rehnquist, writing for a 6-3 majority, stated the numerical policy made race the decisive factor in admissions decisions, and thus was unconstitutional.
Justice Clarence Thomas, the court’s only black member, issued a bitter condemnation of affirmative action as a well-intended but patronizing and ultimately discriminatory attempt by whites to help African Americans. Thomas’ dissent began with a quote from an address by Frederick Douglas, criticizing abolitionists in 1865 for interfering with blacks’ efforts to help themselves. Thomas stated that he believes that blacks can achieve success “without the meddling of university administrators.” He declared that a state’s use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause of the Constitution.
In the majority opinion in the law school case, Justice O’Connor rejected the argument of the Bush administration that race-neutral alternatives could be as effective in creating diversity as affirmative action. The Constitution, said Justice O’Connor, does not prevent the law school’s “narrowly tailored” use of race in admission decisions in order to achieve a compelling interest in obtaining educational benefits that are produced from a diverse student body. The Michigan law school uses race as a potential “plus” factor to promote diversity, stated Justice O’Connor. The goal of the law school affirmative action policy was to produce a “critical mass” of minority students on campus. She supported the decision by citing studies showing that diversity promotes learning outcomes and better prepares students for an increasingly diverse workforce, for society, and for the legal professions. Diversity is necessary, she maintained, for developing leaders with “legitimacy” in the judgment of the people. Moreover, she stated that effective participation by members of all racial and ethnic groups in the civic life of the nation is critical if the U.S. truly will achieve the goal of being one “indivisible” nation. She emphasized, in addition, that businesses have made it clear that the skills and knowledge essential in today’s increasingly global marketplace can only be created through contact and experience with widely diverse peoples, cultures, ideas, and views.
U.S. Solicitor General Theodore Olsen, however, condemned the Michigan policies as a “thinly disguised quota.” Some critics contended that the decisions mean that universities can still racially discriminate so long as they are not obvious about it. Civil rights advocates, however, hailed the decision as a major victory and claimed it not only strengthened affirmative action in a college setting, but also gives added impetus to the use of race in pursuit of diversity elsewhere, especially in employment.
The University of Michigan’s president, Mary Sue Coleman, said she was delighted by the decision because the principle of diversity was upheld, and she stated the school would fix its undergraduate policy so that it is not construed as a mechanical quota-based system. Unlike the law school, the undergraduate school awards a specific, predetermined number of points to applicants whose ethnicity or race is underrepresented on campus, specifically a 20-point bonus on a 150-point scale where 100 points guaranteed an admission. The majority of the Court found that this resembled a quota system, a practice previously struck down as unconstitutional. The undergraduate decision also could cause employers to rethink their reliance on quantitative evaluations of job applicants and employees. While the law school decision does allow colleges to consider race as a preferential factor in making decisions, the court made clear that diversity should not be defined solely in terms of race and ethnicity. Universities, therefore, will have to look more broadly at socio-economic factors, special talents and life circumstances, such as family background and income and education levels, in searching for a diverse student body. Justice O’Connor required that universities now must give applicants a personal “holistic” look.
The Supreme Court’s University of Michigan affirmative action cases in 2003, therefore, emerge as landmark decisions with wide-ranging implications not only for education but also for business and for society as a whole, especially so because the use of race has been upheld legally as a permissible component to an affirmative action preference plan.
The very difficult and contentious issue of affirmative action has again reached the U.S. Supreme Court, and also once again in the context of education. In December of 2006, the Supreme Court heard arguments in a secondary school desegregation case in which two school boards, one in Seattle, Washington, and the other in Louisville, Kentucky, are attempting to preserve voluntarily imposed race-based integration plans. The school board plans are controversial because race is used as a factor to assign students to schools in order to achieve more racially diverse schools. The school districts contend that racial integration is an essential component to a public school education; and that such an objective is a compelling government interest so as to justify a limited use of race in implementing policies that produce integrated schools. The parents that are challenging the race-based school assignment plans contend that the Equal Protection clause of the 14th Amendment to the U.S. Constitution as interpreted by the Court forbids any consideration of race in school enrollment decisions. However, proponents of the plan say that the limited use of race is necessary to redress the legacy of racism and school segregation in the United States. Moreover, proponents argue that there are positive benefits for the students and ultimately for society as a whole for students to attend racially diverse schools. Achieving a diverse student body, one recalls, was deemed to be a sufficiently “compelling” interest for the Court to uphold the University of Michigan’s law school’s affirmative action policy in which race was allowed to be used as one “plus” factor in an otherwise “holistic” evaluation of a candidate for admission. In the Seattle case, involving a city, it is important to note, which never imposed official segregation, students are allowed to enroll in any of ten high schools. However, if a particular high school has more applicants than seats, school official are empowered to use several tie-breaking factors, including race, in order to achieve an enrollment that approximately reflects the city-wide student population. In Seattle, whites account for 40% of the population, with blacks, Hispanics, Asians, and Native Americans accounting for the other 60%. In the Louisville case, the city once had a legally imposed dual, “separate but equal,” school system, in which certain schools were reserved for whites and others for blacks. As a result of civil rights litigation, a federal court in 1975 imposed the remedy of mandatory busing in order to achieve integration of the schools. However, in 2000, a federal judge dissolved the desegregation order, finding that the schools had been successfully integrated. In order to maintain integrated schools, school officials in Louisville decided to continue the desegregation policy, which seeks to keep black enrollment in each school between 15% and 50%. A parent whose child was denied admission to neighborhood schools, because the child’s enrollment would have an adverse effect on desegregation, sued because her child was assigned to a school impermissibly due to the child’s race. Even the initial questions and comments by the Justices of the Supreme Court reflected the conservative-liberal, Kantian-Utilitarian dichotomy to the Court. For example, the “liberal” members talk in terms of the benefits of diversity and emphasize the need and desirability of local school officials to develop policies that use race to achieve diversity in school composition. Whereas the “conservative” members assert that despite the laudable benefits of integration and diversity, the means used to attain these “good” ends must be race neutral, non-discriminatory, and thus moral ones. Of course, the key vote in, as well as author of, the Michigan law school, 5-4, decision, Justice Sandra Day O’Connor, is no longer on the Court. The key vote, according to legal experts, was Justice Anthony Kennedy, who appeared to be very reticent about using race as the classifying factor in admissions decisions. However, Justice Kennedy may have been willing to permit the use of race in a limited fashion in school racial composition determinations. Although it is always difficult to predict the Court, nonetheless legal experts expected that the Court would enunciate a “split decision” as in the precedential Michigan case. That is, it was thought that the Court most likely would strike down the Louisville plan since race is the sole factor in assigning students; but uphold the Seattle plan, where race is used as “merely” one factor, granted a potential “tipping” one, among a variety of criteria employed to determine school assignments.
However, in June of 2007, the Supreme Court, in a surprising, momentous, landmark, and very close 5-4 decision, struck down both the Louisville and Seattle affirmative plans as unconstitutional. The Louisville case was Meredith v. Jefferson County Board of Education; and the Seattle case was Parents Involved in Community Schools v. Seattle School District No. 1. Chief Justice John G. Roberts, Jr., writing for the majority, declared that the two school districts had failed to meet their “heavy burden” of justifying the “extreme means” the districts had chosen to classify children by means of their race when making school assignments. Chief Justice Roberts very succinctly explained, using Kantian logic, the Court’s reasoning: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Yet the decision may not entirely eliminate the use of race as a factor in making educational decisions. Justice Kennedy, joining the majority, but also writing a concurring opinion, opined that there might be some “narrow circumstances” that would allow the use of race as a criterion in education. Justice Kennedy also declared that “This nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. Nevertheless, the decision very likely will force educational institutions to devise race-neutral criteria, such as socio-economic factors, in designing affirmative policies and plans. As a matter of fact, in the majority opinion, Chief Justice Roberts stated that other means aside from race should be used to promote diversity in schools. Everyone seems to agree that classroom diversity is an important educational objective, but how to achieve it fairly and constitutionally is emerging as a daunting challenge – legally, morally, and practically.
Cavico, Frank C., and Mujtaba, Bahaudin G. (2008). Legal Challenges for the Global Manager and Entrepreneur. Dubuque, Iowa: Kendall-Hunt Publishing Company. Greenhouse, Linda, “Justices 5-4, Limit Use of Race For School Integration Plans,” The New York Times, June 29, 2007, pp. A1, A20; Mears, Bill, “Divided court rejects school diversity plans,” Law Center, CNN, http://www.cnn.com/2007/LAW, retrieved June 28, 2007; Sherman, Mark, “ Race-based school programs reined in,” The Miami Herald, June 29, 2007, pp. 1A, 2A; Stout, Dave, “Use of Race in School Placement Curbed,” The New York Times, http://www.nytimes.com, retrieved June 28, 2007.
Questions for Discussion:
1. Do you are agree with the Supreme Court’s Louisville and Seattle decisions – on legal and moral grounds? Discuss.
2. Did you agree with the Court’s earlier Michigan decisions – on legal and moral grounds? Discuss.
3. Which is the morally preferable approach to affirmative action pursuant to Utilitarian ethics? Why?
4. Which is the morally preferable approach to affirmative action pursuant to Kantian ethics? Why?
5. How would you advise school administrators to use race as a factor in academic admissions and assignments? Discuss.
6. What do you think Justice Kennedy had in mind when he opined that race could be used as a criterion in education but only in certain “narrow circumstances”? Discuss and provide examples.