Court takes up racial preferences in landmark case

The undergraduate affirmative-action program is somewhat different from the law school's. Undergraduate minority candidates are awarded an automatic 20 extra points out of a possible 150 points. It is the same number of points awarded for the difference between a 4.0 grade point average and a 3.0 average. (At the law school, no automatic points are granted. Instead, the school seeks to admit a "critical mass" of minority students.)

Opponents of the undergraduate plan say the automatic boost amounts to a race-based double standard, with one set of qualifications for preferred minority candidates and another, tougher, set for everyone else.

Lawyers for the university counter that without such preferences, there wouldn't be enough minority students to achieve a desirable level of diversity.

The concept of diversity is at the center of both the law-school and undergraduate cases. It stems from the majority opinion written by then-Justice Lewis Powell in the landmark 1978 Bakke case. In that ruling, the high court struck down the use of rigid quotas in affirmative-action plans, but Justice Powell said in his opinion that race could be used as one of many factors in a selection process aimed at promoting diversity.

Powell drew a distinction between admission regimes that rely solely on race to achieve diversity and programs that treat each applicant as an individual. To achieve what Powell called genuine diversity, race must be relied upon only as a "plus factor" among an array of other characteristics, he wrote.

In Grutter's case against the law school, her lawyers say the minority admissions plan goes far beyond the individualized "plus factor" outlined by Powell.

Law-school data comparing applicants based on their LSAT test scores and college grades in 1995 show a sizable and consistent disparity between acceptance rates for minority applicants on one hand (that is, black, Hispanic, and native American) and white and Asian-American applicants on the other hand.

Minority applicants in the top tier - those with the highest LSAT scores - enjoyed a 96 percent acceptance rate, compared with an acceptance rate of 59 percent for whites and 63 percent for Asian-Americans, all with comparable test scores.

Among middle-tier applicants (such as Grutter), minorities had an 81 percent acceptance rate, while only 5 percent of whites and 4.7 percent of Asian-Americans were offered admission. In the bottom tier, 26 percent of minorities won admission, compared with 1.4 percent of whites and 1.6 percent of Asian-Americans.

Is this Powell's individualized "plus" factor at work, or evidence of a broad-brush effort to weed out whites and Asian-Americans to make room for enough minority candidates? Michigan Law School Dean Jeffrey Lehman says such statistics are deceptive. "Race is only one of many factors that go into this process," he says.

He adds, "Every year we regularly admit some white applicants who have lower grades and test scores than some African-American applicants who we reject."

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