Options: End preferences or rewrite admission rules
By Jodi S. Cohen / The Detroit News
Wednesday, April 2, 2003
WASHINGTON -- The U.S. Supreme Court could deliver two different opinions in the University of Michigan admissions lawsuits argued Tuesday. Although many who are watching the cases hope the court makes a clear stand for or against the consideration of race when admitting students, legal experts suggest the outcome could be far more murky. The court, for instance, could weigh the two admissions systems against each other in deciding what advantage colleges can give to minorities. Under that scenario, the justices could uphold one policy and strike down the other. "That is one way this could happen," said Nathaniel Persily, a constitutional law professor at the University of Pennsylvania.
"If they both serve the same interest and one is less narrowly tailored than the other, then that one has to fail." The court will decide whether getting a diverse student body justifies the admissions advantage for minority applicants. But it also will decide whether U-M's policies are "narrowly tailored," meaning they consider an applicant's race in the least intrusive way possible. In the undergraduate system, African-American, Hispanic and native American applicants get 20 points on a 150-point scale, the equivalent of boosting a 3.0 grade-point average to a 4.0. Applicants who reach 100 points have a good chance of being admitted.
In the Law School, race is considered among other factors to get a "critical mass" of minority students. Minority students have made up at least 11 percent of every entering law school class since the policy was enacted 1992. "The Law School program looks somewhat timid by comparison," Persily said. Split decision in 1978 Some observers hope there is not a confusing split decision, similar to the court's last ruling on affirmative action in higher education. In the 1978 Bakke case, the court ruled 5-4 against reserving a specific number of seats for minorities, but allowed colleges to consider race as one of many factors to get a diverse student body. The nine justices filed six separate opinions in the case.
Those divisions have left people debating ever since how far colleges can go when taking race into account. "There is a lot of pressure on the court to say something more definitive about affirmative action. (A split decision) would be a last resort," said Temple University professor Mark Rahdert, a former clerk to Justice John Paul Stevens.
"That is a position they will arrive at only if the court is so sharply divided that they can't get a majority for any other resolution." Rahdert agreed that if one policy is to fail, it likely would be the undergraduate system because it "is more mechanical and puts a more forceful emphasis on race as a plus factor." U-M officials disagree.
They said an admissions official reads each application. The point system is a guide to breed consistency, U-M general counsel Marvin Krislov said. Clark Cunningham, a Georgia State University law professor who has written numerous articles about affirmative action, said swing-voter Justice Sandra Day O'Connor may approve of the Law School policy but not the undergraduate policy. Some experts believe that she won't want to abolish all affirmative action in admissions but will limit the extent to which colleges can consider race.
"It wouldn't surprise me if there were five votes saying that adding 20 points just because you are one of these three ethnic categories is too blunt a tool," Cunningham said. "They might say, 'Why not do what the Law School does?' " Coleman defends policies U-M officials have said they cannot get the same percentage of minority students without the current policies.
"If there were some other way to do it, we would have done it already," U-M President Mary Sue Coleman said. Minority students currently make up about 13 percent of the undergraduate student body, and without the 20 points, it would drop to between 3 percent and 5 percent, she said. The Center for Individual Rights, the law firm representing the plaintiffs, said it hopes the court writes a decision that strikes down both policies and states that race cannot be taken into account to achieve diversity.
"If the court were to strike down both of these admissions systems as unconstitutional, it is not clear what would be left for colleges to do," said Terry Pell, president of the Center for Individual Rights in Washington, D.C.
You can reach Jodi S. Cohen at (313) 222-2269 or jcohen@detnews.com.
Copyright © 2003 The Detroit News.
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