Affirmative Action’s Big Win Always Had an Asterisk

From The Chronicle of Higher Education:

Ted Spencer still looks back. No one who lives through a grueling legal saga defined by questions about race, equity, and the Constitution could ever board up the windows to the past.

Spencer was director of admissions at the University of Michigan at Ann Arbor when the U.S. Supreme Court in 2003 decided two cases challenging the institution’s race-conscious admissions policies. The justices handed one plaintiff a victory in Gratz v. Bollinger. But Michigan won the day because the court’s ruling in a companion case, Grutter v. Bollinger, affirmed that colleges could continue considering applicants’ race and ethnicity as one of many factors. The landmark decision shored up the foundation on which a generation of admissions practices would stand. And many people in academe rejoiced.

But for Michigan, the celebration was fleeting: The opponents of affirmative action soon extinguished the university’s victory with a successful ballot initiative that banned the use of racial preferences throughout the state.

What Spencer sees in those momentous events is complicated: a triumph with a 10-foot-tall asterisk, a backlash presaging the lawsuits now looming over academe. This fall, the Supreme Court will hear two cases challenging the constitutionality of race-conscious admissions policies at Harvard University and the University of North Carolina at Chapel Hill. The court’s 6-3 conservative majority has been hacking down precedents such as Roe v. Wade. So there’s a good chance that it will shred Grutter, ending the longstanding use of race in admissions throughout the land.

You might dread that outcome or welcome it. Either way, Grutter matters because it invites the nation to consider what’s really at stake in the age-old debate over race-conscious admissions. It’s something more consequential than whether Becky with the Good Grades gets into her dream college. Grutter matters because it poses a fundamental question about fairness, asking us which kind of society we want to live in: one that clings to the ideal of colorblindness at all costs, or one that recognizes the ongoing struggle of integration? Because Grutter’slegacy might soon disappear into the whooshing downspout of history, it’s worth taking a look back.
Spencer, now retired, believes that many people have forgotten what the Michigan cases were all about, if they ever even knew: “I would tell colleagues, You can’t just say ‘Michigan was sued.’ You have to explain why, the background.”

His own story entwines with that background and the essential questions that Grutter poses. It’s the story of a Black man raised in the Deep South during segregation who became a leader in a field long dominated by white men.

Link to the rest at The Chronicle of Higher Education

PG notes that, while Gratz and Grutter were important affirmative action cases, the one that started it all was the US Supreme Court case titled Regents of the University of California v. Bakke, handed down in June of 1978.

The Bakke story stretches back to Brown v. Board of Education (1954) and the Civil Rights Act of 1964, which continued the process of desegregating schools and outlawed discrimination on the basis of race. Although Congress officially ended segregation, there was a reluctance to actually integrate schools, and a disparity in college-preparedness remained between races.

Here’s how The National Constitution Center describes Bakke:

The Bakke story stretches back to Brown v. Board of Education (1954) and the Civil Rights Act of 1964, which continued the process of desegregating schools and outlawed discrimination on the basis of race. Although Congress officially ended segregation, there was a reluctance to actually integrate schools, and a disparity in college-preparedness remained between races.

Thus, colleges like the University of California, Davis School of Medicine adopted policies of racial favoritism, policies designed to compensate for unfair disadvantages. Specifically, the school established a program to designate 16 of the 100 spots in each class for minority students.

Allan Bakke, a white male in his thirties, twice applied for admission at the school but was rejected, partially because of his advanced age. Bakke’s interviewer considered him “a very desirable candidate”; his GPA was comparable to other admittees and his MCAT scores were all significantly greater. Compared to the special admittees of UC Davis’s affirmative action program, he beat every student in every metric in both of his application classes.

Bakke, exasperated by the rejections, filed suit, contending that the University of California violated the equal protection guarantee of the 14th Amendment and the Civil Rights Act. Ironically, he argued, a law that was passed to promote equality was being employed for the opposite purpose.

The case rose through federal courts to reach the Supreme Court of California, which struck down the admissions policy and ordered Bakke’s admission. Shocked at the surprising judgment from a traditionally liberal court, the frustrated university requested a stay of admission. Shortly thereafter, the U.S. Supreme Court accepted the case for its October 1977 term.

National interest in the case was enormous—58 amicus briefs were filed, setting a Court record until 1989, and reflecting the many and diverse arguments on the issue.

Ultimately, the Court was mixed in its decision: six different Justices wrote opinions on the case, with Justice Lewis Powell writing the controlling opinion and virtually splitting his vote between two groups of four Justices.

Affirming the lower court, Powell and four of his colleagues determined that specific racial quotas in university admissions are unconstitutional. In Powell’s words, “The fatal flaw in … [UC’s] preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment.”

The majority argued that, by explicitly differentiating racial groups for consideration, the university violated the Constitution’s guarantee of equal protection under the law. It was unfair, they said, that minorities were eligible for 100 spots in the class when whites could only vie for 84. Thus, the Court struck down racial quotas and ordered Bakke admitted.

Yet Powell also joined the remaining four Justices in affirming the legality of a program that considered racial background as one of many holistic factors in admissions decision. In his view, such a policy did not specifically exclude anyone from admission.

Discussing a Harvard race-awareness program, Powell argued that even though “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file … it does not insulate the individual from comparison with all other candidates for the available seats.” With each applicant considered for an array of qualities, someone like Bakke would not be “foreclosed from all consideration from [a] seat simply because he was not the right color or had the wrong surname.”

PG was just out of law school when Bakke was handed down and, when he read the decision, he had a sense he had that this decision hadn’t addressed all the issues it should have and would not stand the test of time. Basically, the Supreme Court kicked the can down the road.

Twenty-five years later, in the landmark case of Grutter v. Bollinger (2003), the Supreme Court affirmed its decision in Bakke by ruling that the University of Michigan Law School’s race-conscious admissions policy was constitutional because it did not involve the use of explicit quotas. But Bakke remains fundamental precedent on affirmative action.

Link to the rest at The National Constitution Center

When one encounters a Supreme Court decision in which “six different Justices wrote opinions,” one can be assured that the Court agreed on the outcome, but couldn’t agree exactly what legal theory or theories supported that outcome. A skeptical observer might conclude that the affirming justices knew the outcome they desired, but weren’t quite sure about how statutes and cases could be put together in a way that indicated those justices weren’t pulling a Constitutional right out of thin air.

Many reasonable people can and do agree that the Supreme Court caused a good outcome for a group of Americans that had been treated quite badly for a very long time.

Freeing them from slavery was an enormous and brutal undertaking that imposed an extremely high cost on both the North and the South. As PG has previously written, the Civil War, a war killed more Americans than were killed all the other wars in which the nation had engaged during its existence combined up to part-way through the Vietnam War, when, after over a hundred years, the death toll of American soldiers in all those other wars finally exceeded the death toll in the Civil War.

This coming November, over 50 years since the Bakke decision was handed down, the Supreme Court is scheduled to hear challenges to the consideration of race in the admissions process at Harvard and the University of North Carolina in two separate cases. More than a few court watchers think the Court will decide that what is now called affirmative action and/or diversity in college in the selection of applicants who are admitted to a college or university is unconstitutional if it is a lightly disguised version of racial discrimination against students of one or more races to favor students of another race.

One of the changes that has occurred over the past couple of decades is that affirmative action places a greater burden on applicants of Asian descent than it does on applicants who are white. To the best of PG’s recollection, admission of Asian students was not a factor considered by the Supreme Court in any of its previous major decisions on the topic of race and college admissions.

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