Tuesday, June 24, 2003

Supremes rule on U of M affirmative action cases


In previous posts dated Tuesday, May 06, 2003 entitled "More on affirmative action" and Monday, May 05, 2003 "Affirmative action and Asian-Americans" I discussed some of the issues surrounding the oral arguments and possible analysis about the cases.

I forecasted the following:

"As for the case before SCOTUS, I think they will strike down the Michigan admissions protocols but their ruling will be casted narrowly. The case has been made that diversity is a compelling interest but that the specific program in question is unconstitutional. "

Not surprisingly a closely divided court split the loaf. The undergrad scheme will have to be reworked but the law school admissions system was left intact.

The full text of the Gratz v. Bollinger (the undergrad case) and the Grutter v. Bollinger (the law school case) are posted on the SCOTUS web page.

Idealogues on both sides have reasons to crow and to harp. Affirmative action supporters point to the fact that diversity as a compelling interest was largely upheld. However, they may not be too happy with the knock down of the U of M undergrad scheme. Likewise opponents of affirmative action are claiming that the noose around affirmative action is tightening and that it is just a matter of time before it eventually will go. Of course they felt the court missed the chance to sweep it away now.

WaPo offers this analysis which I excerpt below:
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A recent survey by the Pew Research Center, for example, found that Americans approve of, by 2 to 1, "programs designed to increase the number of black and minority students."

But the same people disapprove of, by 3 to 1, "giving [minorities] preferential treatment."
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Six of the nine justices agreed that the goal of diversity is sufficiently important to justify "narrowly tailored" programs to admit minority students to higher education in place of other students with better grades or higher test scores. But the justices struck down number-based scorecard programs, in which every minority applicant automatically received bonus points. And, like Americans around water coolers from coast to coast, they argued over exactly how narrow the tailoring must be.
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It was no accident that the court came down roughly in line with public opinion. Scores of friend-of-the-court briefs were filed in the Michigan cases, and while an array of conservative groups offered arguments in favor of colorblind policies, the friends in support of affirmative action included the pillars of the American mainstream: big business, big labor, major colleges, the military and so on. General Motors, the AFL-CIO, Massachusetts Institute of Technology and retired Gen. H. Norman Schwarzkopf all urged the court to preserve affirmative action.

In a passionate dissent, Justice Clarence Thomas, the court's only black member, denounced the "faddish" approval of affirmative action among these "know-it-all elites." But his side lost -- at least in part because of the support for affirmative action among key institutions. And now race-conscious admissions programs are on firmer legal ground than they have been in a generation.

Justice Sandra Day O'Connor cited the views of corporate, military and academic leaders in her decisive opinion. "Major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints," she wrote. "High-ranking retired officers and civilian leaders of the United States military," she added, tied diversity among the officer corps to the very safety of the nation.
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She plainly was wrestling in this instance with a conundrum that has perplexed the public since the dawn of affirmative action nearly 40 years ago: How do you make things fair for oppressed groups while continuing to treat people as equal individuals?

O'Connor's answer: good faith, and flexibility.

"A university's admissions program must remain flexible enough," she wrote, "to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature."

The court ended by setting a deadline for the end of affirmative action: 25 years. This target is not binding, but it is sure to be cited as the debate continues, as it inevitably will. Writing an expiration date on a Supreme Court decision is not how it is normally done, but here, too, a middle-of-the-road decision hewed to the center stripe.

Conservatives on the court said it was too long a time. The liberals doubted it would be long enough.

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