Supreme Court Endorses Affirmative Action in Admissions
 
November 3, 2003
 

In a pair of decisions issued in June, the U.S. Supreme Court upheld the use of affirmative action programs in college and university admissions. The Court found that the affirmative action program at the University of Michigan Law School was constitutional, but struck down a less individualized admissions plan for the university’s undergraduates. The decisions marked the Supreme Court’s first unequivocal statement that affirmative action in admissions is permissible under the Fourteenth Amendment, and they provided a road map for colleges and universities that wish to adopt or maintain such programs. Nevertheless, the Court made it clear that affirmative action plans must be carefully designed and implemented in order to comply with the Constitution.

This article reviews the factual background of the University of Michigan’s affirmative action cases and the holdings of the Court, and outlines a strategy for adopting a permissible affirmative action plan following these decisions.

Background

The lawsuits began in 1997 when white students – who had been denied admission to the University of Michigan’s Law School and to the university’s undergraduate College of Literature, Science, and the Arts – filed separate complaints alleging that the university’s affirmative action plans violated the Constitution and other federal anti-discrimination statutes. The students claimed that because the plans gave preferential treatment to minority applicants, they violated the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause prohibits a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.”

The law school based its affirmative action program on a plan endorsed by Justice Powell in the 1978 case of Regents of the University of California v. Bakke. That was the only previous Supreme Court decision to directly address the constitutionality of affirmative action in admissions. Bakke involved a challenge to the admissions program at the University of California at Davis Medical School, which set aside sixteen places in the class for minority applicants. A majority of five Justices concluded that this system was an impermissible quota. Four of the five justices in the majority viewed Davis Medical School’s affirmative action policy as a clear violation of Title VI of the Civil Rights Act of 1964. The fifth member of the majority, Justice Powell, wrote a separate opinion in which he concluded that the Davis Medical School’s policy was unconstitutional, and that its affirmative action program could not be used to remedy societal discrimination. Justice Powell went further, however, finding that affirmative action was not always unconstitutional, and that universities could use race as a “plus” factor in an admissions policy designed to admit a diverse group of students. Justice Powell reasoned that universities have a compelling interest in admitting a diverse class of students, and that race could be taken into account for the purpose of achieving diversity. In Justice Powell’s view, compliance with the Fourteenth Amendment meant that each applicant had to be considered individually, and that no person or group could be removed from competing with the entire applicant pool for a place in the class. In endorsing the affirmative action plan used, Justice Powell indicated that a university could have a goal of admitting “more than a token number” of minorities as long as it did not establish a rigid quota.

Consistent with Justice Powell’s opinion in Bakke, the University of Michigan Law School’s affirmative action plan takes race into account as one factor in a policy that seeks to enroll a diverse class of students. The law school’s plan does not define diversity solely in terms of race or ethnicity, but rather explicitly aims to enroll a “critical mass” of students who are members of racial groups that traditionally have been under-represented at the law school. Under the plan, admissions officials evaluate each applicant based on all of the information available in the applicant’s file, including grades, test scores, essays, letters of recommendation and other “soft variables.” As Justice O’Connor wrote in her majority opinion in the law school case, Grutter v. Bollinger, “The hallmark of [the law school’s admissions] policy is its focus on academic ability coupled with a flexible assessment of applicants’ talents, experiences, and potential ‘to contribute to the learning of those around them.’”

The goal of the affirmative action policy for the University of Michigan’s undergraduate College of Literature, Science, and the Arts (LSA) was also to achieve diversity, but the method adopted for achieving this goal was different from that adopted by the law school. Students applying to the LSA were ranked through a system in which the maximum possible score was 150 points. A score of 100 was required to ensure admission. Under the LSA’s affirmative action plan, minority applicants were automatically awarded 20 points, or one-fifth of the amount needed to gain admission.

The Decisions

When a state institution, or a private institution that receives federal funds, adopts a policy that explicitly considers race in a decision-making process, the Supreme Court analyzes the constitutionality of the policy under a two-part “strict scrutiny” test. First, the Court decides whether the race-based policy serves a “compelling interest.” Second, the Court determines whether the policy is “narrowly tailored” to meet that compelling interest.

A majority of the Supreme Court in Grutter v. Bollinger found that the University of Michigan Law School’s affirmative action plan passed both parts of the “strict scrutiny” test. Adopting Justice Powell’s view in Bakke, the majority concluded that admitting a diverse student body was a compelling interest of a public university. In justifying this conclusion, Justice O’Connor noted that student body diversity benefits all students, it helps break down racial stereotypes, and it promotes the development of a diverse and integrated leadership class.

The majority also found that the law school’s affirmative action plan was a narrowly tailored approach to achieve student diversity. Because the system considers each applicant individually, and uses race as only one of many factors that determine whether an applicant is admitted, the Court found that nonminority applicants were not unduly burdened by the plan. The Court rejected the argument that admitting a “critical mass” of minority students was equivalent to a quota, and noted that the actual number of minority students who were admitted to the law school had varied over the course of several years. The Court accepted the notion that the law school could attempt to admit enough minority students so that underrepresented groups would not feel isolated, or be perceived as spokespersons for their race.

In contrast, the Court held in Gratz v. Bollinger that the undergraduate affirmative action program was unconstitutional. Unlike the law school plan, the LSA’s plan did not provide individualized consideration to every candidate, but instead simply gave all minority applicants 20 additional points. Students with other qualities that would contribute to a diverse student body, such as artistic talent, could receive substantially fewer points. The Court noted that the consequence of the LSA’s approach was to grant admission to virtually every minimally qualified minority candidate.

Strategies for Adopting Permissible Affirmative Action Plans

Colleges and universities wishing to adopt an affirmative action plan that will survive a legal challenge must carefully review the decisions in the University of Michigan cases. These cases make it clear that affirmative action plans must be crafted with care to survive a constitutional challenge. Schools should consider taking the following steps in implementing a lawful affirmative action plan:

1. Begin by formulating written objectives for the plan. The main rationale should be to admit a group of students that is not only racially diverse, but diverse in other ways.

2. Before devising an affirmative action plan, formally consider the race-neutral alternatives. For example, a lottery system, or system that admits a fixed percentage of students from schools whose students apply, might theoretically achieve a diverse class of students. The University of Michigan successfully argued that these alternatives were impractical for the law school. Nevertheless, to ensure that a plan meets the “narrowly tailored” test, it is useful to show that an institution formally considered the possibility of achieving diversity through race-neutral means.

3. Develop admissions criteria in which each candidate’s entire application file is considered, and where race is only considered as a “plus” factor that is weighed along with an applicant’s other qualities. Race should not be considered as a separate and potentially determinative factor. Point systems, if they are permissible at all, should not single out race as a factor that is separate from other qualities that contribute to the diversity of the student body. Schools that adopt affirmative action programs should be prepared to hire additional personnel to implement a constitutionally permissible admissions process.

4. Avoid formulating rigid objectives for the number of minorities admitted. Quotas are clearly unconstitutional. A school that repeatedly admits close to the same number of minorities from one year to the next could become a target for allegations that its admissions process does not provide bona fide individual review.

5. Reconsider the need for an affirmative action program on a regular basis. The requirement that a race-based plan be narrowly tailored arguably obliges schools to reexamine the need for the program every few years. The majority’s decision in the law school case suggested, perhaps optimistically, that affirmative action programs might not be needed to achieve diversity 25 years from now. While the decision did not impose a specific time limit on affirmative action plans, such programs cannot be treated as permanent solutions to achieving diversity. Thus, schools should formally plan to reconsider the necessity of their affirmative action programs every few years.

For more information e-mail Doug Phillips at doug.phillips@hklaw.com or call toll free, 1-888-688-8500.