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January 13, 2003
In the spring of 2003, the U.S. Supreme
Court will heard arguments in two cases that will profoundly impact
the future of affirmative action in higher education. The lawsuits
against the University of Michigan’s Law School (Grutter
v. Bollinger) and the undergraduate College of Literature, Science,
and the Arts (Gratz v. Bollinger), both challenged policies
that consider race/ethnicity as one factor among many in their admissions
decisions. The decisions handed down in these cases, heard
concurrently, will affect access to colleges and universities for
minority students for years to come.
The potential rulings threaten to reverse the Supreme
Court’s decision in Regents of the University of California
v. Bakke (1978) where the Court concluded that “the goal
of achieving a diverse student body is sufficiently compelling to
justify consideration of race in admissions decisions . . .”
Most colleges and universities continue to follow the guidelines
of Bakke, arguing that student body diversity is a critical
element in achieving the institution’s mission and that the
consideration of race/ethnicity in admissions is needed to achieve
that diversity.
Faced with the lawsuits, the
University of Michigan (UM) has fought vigorously to maintain
race/ethnic considerations in their admissions processes. UM and
prominent social scientists have produced powerful evidence that
a diverse student body enriches the experience of all students.
On January 18, 2003, UM released a statement titled "Why
Michigan's Admissions Systems Comply with Bakke and Are Not Quotas"
in response to recent
declarations made by President Bush arguing that the use of
quotas by UM in admissions processes should be deemed unconstitutional.
Recent court challenges have led to the split among
the lower courts that the Supreme Court is expected to resolve in
the Michigan cases. In 1996, the Fifth Circuit Court of Appeals
in Hopwood v. Texas effectively ended all considerations
of race in admissions, recruitment, and scholarships at the undergraduate
and graduate school level in all public institutions in the Fifth
Circuit (Texas, Mississippi and Louisiana).
In Johnson v. Board of Regents (2001), the
Eleventh Circuit struck down the University of Georgia’s race-conscious
admissions policy as unconstitutional; the court assumed that promoting
educational diversity was a compelling interest, but ruled that
the policy was unconstitutional because it was not narrowly tailored
to advance the interest. Conversely, in Smith v. University
of Washington Law School (2001), the Ninth Circuit found the
Bakke case to be binding precedent and rejected a challenge to the
law school’s race-conscious admissions policy.
Recent legislative and executive policies at the state
level have also led to the elimination of affirmative action programs.
In July of 1995, The California Board of Regents passed SP-1, a
resolution that ended the university system’s use of race,
religion, sex, color, ethnicity, or national origin in admissions
considerations effective January 1, 1997 (this decision was repealed
in 2001). In 1996, California voters passed Proposition 209, legislation
that also eliminated affirmative action in education, employment,
and contracting throughout the state. Washington voters passed Initiative
200 in November 1998, which restricts the use of race/ethnicity
in employment, education, and contracting decisions. And in 1999
in Florida, affirmative action was not ended by a ballot initiative
or by litigation, but by executive order from Governor Jeb Bush.
In separate challenges to the undergraduate admissions
policy and law school admissions policy at the University of Michigan,
the trial courts yielded inconsistent decisions. The district court
in the University of Michigan undergraduate case, Gratz v. Bollinger,
found social science evidence to be persuasive because it suggested
that (1) students learn better in a diverse environment, (2) students
are better prepared to be active participants in a pluralistic society,
and (3) diversity serves to break down historical patterns of racial
segregation.
The trial court in the Grutter case, while
acknowledging the educational benefits of diversity, nevertheless
struck down the law school’s policy as unconstitutional, ruling
that promoting diversity is not a compelling interest and the law
school’s whole-file review policy was not narrowly tailored.
Both the law school case and the undergraduate
case were appealed to the Sixth Circuit, which issued an opinion
in May 2002 reversing the trial court in the law school case and
finding that Bakke is still binding precedent and that the law school
policy is narrowly tailored. Although the Sixth Circuit had not
yet issued an opinion in the undergraduate case, the plaintiffs
filed petitions for certiorari for both cases before the U.S. Supreme
Court. On December 2, 2002, the Supreme Court agreed to hear the
appeals in both the undergraduate case and the law school case.
Briefs are being submitted to the Court in January and February
of 2003, with oral arguments to be held in March of 2003.
Decisions
in the cases were made on June 23, 2003. For a review and joint
statement of constitutional law scholars, visit Court
Decisions of our Policy Action section.
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