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Walking a Thin Line: Supreme Court to decide fate of affirmative action...maybe

By Jen Chamberlain

During the first week in April, the Supreme Court heard arguments in the case of Grutter vs. Bollinger. According to court transcripts, Barbara Grutter has brought a suit against the University of Michigan based on the grounds that she applied for admission to the law school with a “personal right guaranteed by the Constitution that she would not have her race counted against her,” and that the law school violated that right.

The law school argues that it is constitutional to consider race as one factor among many in decisions regarding who is admitted to the program. Representatives for the school also contend that its use of race is very limited when making admission decisions.

The Supreme Court will also hear arguments about the University of Michigan’s undergraduate admissions policy, which utilizes a 150-point system to determine a student’s admittance.

Categories like “personal achievement,” “leadership and service” and quality of essay have a one to three point spread, while the category of “underrepresented racial/ethnic minority identification or education” can earn a student 20 points automatically.

Opponents of the plan say it puts emphasis on the wrong qualities for admission to the school, and also say the point system acts as a disguised quota.

The school says the weight given to categories in point system is necessary to achieve a diverse student body, which is constituionally permissable.

In order to understand what's really being decided, it is necessary to look to the case that set the precedent on which the law school's program is based.

Before 1978, diversity was a word foreign to admissions officers. It was the Supreme Court's decision in the Bakke case in 1978 that brought the issue of diversity to the forefront of elite institutions' admissions policies.

In 1972, Alan Bakke, a 32-year-old mechanical engineering major, applied for admission to the University of California at Davis Medical School. Despite his excellent academic record, he was rejected two years in a row. Both times his admissions prospects had been limited by a special program reserving 16 of the 100 places in each class for blacks, Latinos, Asians and Native Americans. It was found that there were two tracks in the school's admissions policy: one for minorities and one for whites. Bakke, who is white, sued the university on the grounds that students less qualified than he, but of minority status, had been admitted over him, which he believed to be discrimination.

The Supreme Court ruled the Davis program was unconstitutional for two main reasons. One is that reserving a specific amount of space in each class specifically for minorities constitutes a quota, which is not permissible. The second is that the university did not consider applications equally and instead treated the applications of minorities and whites differently. Bakke gained admission to the medical school, so in essence he “won.” But the Court also deemed that race could still be used as a factor in college admissions.

The crucial swing vote on a divided panel came from Justice Lewis Powell, who said that a school “must use a unitary admissions system that passes on all applicants regardless of race or ethnicity.” This meant the school's policy of examining minority applications and white applications separately was unconstitutional.

Powell also said that race may be taken into account as a “plus” in admission policy that sometimes “tips the balance” in an applicant's favor, the idea being that if all things are equal between two students, race can tip the scales to favor minorities.

For the four justices who sided with the U.C. Davis program, affirmative action served as a remedy for societal discrimination, while for Powell it was a way of achieving educational diversity. Though Powell was the only Supreme Court Justice to advocate that race was a way of achieving diversity, his decision became the country's precedent.

Because of Powell's decision, universities may not give advantages to minorities on the basis of past or societal discrimination, a reason most people can get behind. Instead preference is given to minorities on the basis that they provide needed “diversity,” a term of serious ambiguity, and one that is a major source of contention among the camps for and against affirmative action.

One of the most compelling arguments for using race as a way to achieve diversity is that minorities living in the United States have different life experiences than whites do, and those experiences will enrich the lives of other students. Another is that without race being considered as a factor in admissions policies at elite institutions, minority enrollment may drop significantly. This is because, as a general rule, white students score higher than minority students do on standardized tests like the SATs. At elite institutions, these types of test scores play a substantial role in admissions. There is speculation regarding the reason for the gap in test scores between minorities and their white counterparts.

According to a study conducted by Joel Myerson and Mark Rank for the University of Washington, “research shows that many blacks, even those from higher-income families, have less access than whites to quality K-12 education.” It is important to keep in mind, however, that the argument is that a drop in minority enrollment will happen at elite institutions (think Harvard and Princeton) and not necessarily at all colleges and universities in the country.

Opponents to this way of thinking say that race is not a proxy for diversity. They maintain that a person's skin color does not necessarily mean they will think in specific ways or believe in specific values. Factors like political ideology, socioeconomic status and life experiences will better represent the value system of a person than race will. Many also believe that basing admission decisions on skin color is unconstitutional and in violation of the Fourteenth Amendment of the United States, which gurantees equal protection under the law, as well as Title VII of the 1964 Civil Rights Act.

Judge Boggs of the Court of Appeals for the Sixth Circuit, where Barbara Grutter's case was argued before going to the Supreme Court, said, “The fact that some might think this society would be a better one if more governmental benefits were allocated, because of their racial or ethnic status, to blacks, Hispanics, or Native Americans and less to whites, Asians, or Jews, or vice-versa, does not make those policies permissible under our Constitution. Instead, the framers of the Fourteenth Amendment decided that our government should abstain from social engineering through explicit racial classifications.”

The Supreme Court will not reach a decision in the case until this summer, and until then supporters and detractors of affirmative action will be speculating on the potential outcome. Many believe that Justice Sandra Day O'Connor, who usually tries to take the middle ground, will assume the role that Justice Powell did in the Bakke case: the swing vote. This may be difficult to do, for in the Bakke case, Powell split the middle on a very narrow line and there may be no middle ground left to walk. If that happens, O'Connor may be forced to decide whether to continue with affirmative action or to dismantle it.

Jen Chamberlain is a senior Journalism major who will one day sit on the Supreme Court and will rule us all as her minions. Email her at: jchambe2@ithaca.edu