Time to Phase out Affirmative Action

On June 23, 2003, the Supreme Court ruled by a 5-4 majority in favor of the University of Michigan Law School, the defendant in a suit alleging the denial of equal treatment under the law resulting from the law school’s racial preferences in admitting students. The case was titled Grutter v. Bollinger because the petitioner was a white woman, Barbara Grutter, and Lee Bollinger was president of the University of Michigan in 1996, when Grutter had been rejected for admission to the law school, and in December 1997, when Grutter filed her suit. According to Justice Sandra Day O’Connor, the author of the majority opinion, Grutter v. Bollinger was the first Supreme Court case to “directly address the use of race in the context of public higher education” since 1978, when it supported the petition of Alan Bakke, on the grounds that his rejection for admission by the medical school at the University of California at Davis was based on the school’s use of a quota for the admission of minorities and the use of quotas was unconstitutional. At the same time, the court ruled in the Bakke case that race could be considered as one factor in student admissions to achieve a diverse student body. In Grutter v. Bollinger, the court affirmed its decisions in the Bakke case and clarified, somewhat, why and how race can be considered in school admissions.

The University of Michigan Law School maintained that it considered race in admissions to achieve the educational benefits that derive from a diverse student body. The court stated, “Today, we hold that the law school has a compelling interest in attaining a diverse student body.” In other words, the court supported the findings of the law school, which no doubt reflect many other findings in the field of education, that a diverse student body contributes to the attainment of educational goals. Obviously, the court rejected many other findings that question the relationship between the diversity of a student body and the achievement of educational goals.

However, the court also limited the use of race in admissions decisions. It confirmed that the use of racial quotas is unconstitutional. It retained a requirement, apparently from the Bakke case, that a school must “narrowly tailor” the use of race. In other words, before considering race, a school must consider race-neutral measures to achieve its “compelling interest”. In the case of admissions, such measures might include lowering the grade point averages or test scores required for admission. The court ruled that the law school had considered such measures and had rejected them as detrimental to the educational goals of the school. Furthermore, the court required that race be considered only as a supplementary, or “plus” factor in achieving diversity, not as the only factor, or even the dominant factor. Race may also be considered only on an individual basis, not indiscriminately applied to a racial or ethnic group. The use of race must not shield an applicant from competition with other applicants. Thus, schools that use race in admissions decisions must monitor the effect of their practice on the student body. Finally, even the use of flexible, individualistic programs of affirmative action must be limited. The court suggested that such programs may not be justified for more than another 25 years.

The court’s decision in Grutter v. Bollinger will probably affect people in the United States in an immeasurably wide range of ways, depending on numerous factors, including their race, ethnicity, and political persuasion. The likely effects of the decision on institutions are almost equally unpredictable. Certainly, universities that wish to retain affirmative action programs in their admissions procedures will probably justify their programs in the name of achieving a diversified student body. They will have to attempt to achieve diversity through race-neutral means and to insure that applications are not screened according to fixed numbers, as these numbers will probably be deemed quotas. This projection is supported by the Supreme Court’s decision in Gratz v. Bollinger, on the same day as its Grutter v. Bollinger decision, that the University of Michigan’s undergraduate division had unconstitutionally used a numerical racial weighting system in its admissions procedure. Thus, a university will have to review each application in its entirety and apply a wide range of factors, not just race, in assembling a diversified student body. This may require the university to increase the size of its admissions department, and the budget for admissions. Since the Grutter v. Bollinger decision seems to be applicable mainly to universities and schools that are supported, even partially, by public funds, it is difficult to estimate its likely effect on companies or institutions outside academia. Presumably, such organizations