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March 20, 2003
By Angelo Ancheta1
The upcoming decisions of the United States
Supreme Court in two major cases – Gratz v. Bollinger and
Grutter v. Bollinger – are expected to have broad effects
on the future of race-conscious affirmative action in the United
States. In these cases, the Supreme Court will address the constitutionality
of admissions policies at the University of Michigan that are
designed to promote educational diversity in both the University’s
undergraduate college and its law school. Hanging in the balance
are the admissions policies of dozens of selective colleges and
universities – both public and private – as well
as the boundaries of race-conscious policy making in areas such
as voluntary desegregation in K-12 education; government contracting;
and recruitment, hiring, promotion, and layoff practices in private
and public sector employment.
Like the admissions policies at many highly selective colleges
and universities, the University of Michigan’s policies draw
legal support from the U.S. Supreme Court’s 1978 ruling in
Regents of the University of California v. Bakke2, in which a closely
divided Court upheld the use of race as a factor in higher education
admissions. The Supreme Court’s revisiting of the Bakke decision
in the University of Michigan cases, designed to reconcile a split
among the lower federal courts over the vitality of Bakke as a
legal precedent, has generated extensive public attention and the
participation of scores of individuals and institutions both inside
and outside of higher education. Over eighty amicus curiae (friend
of the court) briefs have been filed in the University of Michigan
cases, including briefs from the United States government, several
state governments, elected officials, the military, major corporations,
leading colleges and universities, civil rights organizations,
academic and research associations, advocacy groups, and students
from across the country.
The issues in these cases are complex, and the outcomes are far
from certain. Colleges and universities have relied on the guidelines
established in Justice Powell’s opinion in Bakke for nearly
twenty-five years, but the upcoming rulings in the University of
Michigan cases could seriously disrupt the current legal landscape.
A majority of the Supreme Court could vote to uphold Bakke, to
overturn it, to modify it in some way, or to develop entirely new
standards for evaluating race-conscious admissions policies in
higher education. Moreover, in applying its legal standards to
the actual policies in question, a Court majority might vote to
uphold both the undergraduate and the law school policies, to strike
down both sets of policies, or to differentiate the policies and
uphold one set and not the other.
This Briefing Paper is designed to clarify several
issues at stake in the University of Michigan cases, and focuses
on two major
areas: (1) the constitutional questions before the Court, and (2)
recent research findings that are directly relevant to answering
these constitutional questions. The issues of constitutional law
revolve around a legal test known as the “strict scrutiny” standard,
a rigorous test applied to race-conscious policies in which the
courts evaluate both the importance of the underlying goals of
an institution’s policy and the necessity of the policy in
advancing those goals. Research findings focusing on the educational
benefits of diversity in higher education and on the effectiveness
of race-conscious admissions policies have a direct bearing on
the Supreme Court’s analysis of whether the University’s
interest in promoting diversity is, in the language of the law,
a “compelling governmental interest” and whether the
University’s race-conscious admissions policies are "narrowly
tailored" to advance that interest.
The Briefing Paper is divided into four parts. Part
I provides information on the Bakke case and the more
recent cases challenging the Bakke ruling. Part II examines
the basic legal and constitutional questions at stake in the University
of Michigan cases. Part III
highlights research findings relevant to the question of whether
promoting diversity in higher education is a "compelling governmental
interest." Part IV examines research findings addressing "narrow
tailoring" requirement, including the effectiveness of race-conscious
and race-neutral admissions policies.
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To view the COMPLETE BRIEFING
PAPER
and study conducted by The Civil Rights Project go to:
Revisiting Bakke and
Diversity-Based Admissions: Constitutional Law, Social Science
Research, and the University
of Michigan Affirmative Action Cases
(in PDF Format)
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