Affirmative action -- Search for the middle ground Affirmative action -- Search for the middle ground
By Peter Schrag
Bee Columnist Published 2:15 a.m. PDT
Wednesday, April 9, 2003
If anything became clear in last week's oral arguments in the University of Michigan affirmative action cases, it's how shaky any absolutist position can be and how wise the Supreme Court's 1978 Bakke decision really was. That's not to defend Michigan's race-based admissions formulas, or those of the other selective colleges that have stretched the Bakke ruling out of all proportion.
But the collective message of the oral arguments, the scores of legal briefs in the case and the justices' own remarks amounted to a powerful reaffirmation of the wisdom of Justice Lewis Powell's tie-breaking 1978 opinion that while quotas violated the Constitution's equal protection clause, consideration of race as one factor among many in evaluating individual applications was acceptable.
As constitutional law, it provided no bright line, but as social policy in a nation with America's complex history of race relations and with its great uncertainty about the best way to get beyond it, Powell's split-the-baby decision re-emerged as the best route through the thicket of our ambivalence.
In their questions and comments last week, Justices Anthony Kennedy and Sandra Day O'Connor seemed to be searching for precisely the mid-course that, in Bakke, has been the law of the land for 25 years. Because of her own ambivalence, O'Connor has been the court's swing vote on questions of race preference. In 1978, too, the court was badly split -- the final decision was 5-4; in 1978, Powell played the role that O'Connor now is expected to play.
The Bush administration contends that the plans in California, Texas and Florida that replaced race preferences in selective public university admissions achieve ethnic diversity without race preferences. Texas admits the top 10 percent of graduates of every high school to the University of Texas and Texas A and M.
The University of California takes the top 4 percent; in Florida, it's the top 20 percent. But it was pretty clear that the O'Connor and the four so-called "liberals" on the court weren't buying. What particularly impressed them were the briefs from retired military officers, the evidence pertaining to the use of race preferences in admission to the nation's military academies and the success of those policies in producing an integrated officer corps for military services in which the enlisted men and women are disproportionately black.
Could race never be a factor in admissions, O'Connor asked Kirk Kolbo, the lawyer for the white students who brought the suit challenging Michigan's race preferences. When Kolbo replied that the Constitution didn't permit it, O'Connor rejoined that "you are speaking in absolutes, and it isn't quite that." And how, she asked, did her clients know that they were rejected because of the university's race preferences and not for other reasons?
But the lawyers for the university also were hard pressed to justify the Michigan undergraduate admissions system, which operates on a 150-point scale and automatically adds 20 points to any black or Hispanic applicant. It also grants 20 points to athletes and to students from poor families -- but never more than 20 points altogether, even if an applicant fell into all three categories. Didn't that mean, Justice Stephen Breyer wanted to know, that in a case where a white student from a poor family is a great athlete -- and thus gets only 20 points -- "the black student who has neither ties him?"
University lawyer John Payton acknowledged that it did. Justice Antonin Scalia, whose opposition to race preferences is well known, also wanted to know if Michigan hadn't created its own quandary by trying to be selective and inclusive at the same time. If it wanted to have more minority students without preferences, he suggested, it could simply lower standards. But neither Michigan nor the nation's other universities, public and private, want to make that choice, nor is it a choice great universities should have to make.
What got Michigan and many other colleges (including the University of California) into trouble in the past decade were the blatant race-based formulas that went far beyond what Powell and Bakke contemplated. The Michigan lawyers struggled to distinguish the "critical mass" of minority students the university was seeking from the numerical quotas the court had long forbidden. At the same time, Solicitor General Theodore Olson, arguing on behalf of the Justice Department to end Michigan's race preferences, acknowledged that diversity in enrollment was a desirable goal.
The decision will most probably fall into a middle ground. Since virtually the entire American establishment -- corporations, universities, the military -- supports some form of affirmative action, the most likely way for O'Connor and the court to go is precisely the way the Bakke court went 25 years ago when it struck down the University of California, Davis, Medical School quota: Make clear that no race-conscious formula will be tolerated, but reaffirm the plus-factor principle in judging individual applications that Bakke established.
Against the background of the war, it would be shocking if the court did anything else.
About the Writer
Peter Schrag can be reached at Box 15779, Sacramento, CA 95852-0779 or at pschrag@sacbee.com.
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