Race in admissions revised

Supreme Court does not ban use of race by universities, but says it must be limited.

American colleges and universities may continue to use race as a factor in college admissions, but not in the same way that the University of Michigan has used it to select its undergraduate students.

In two major split decisions announced Monday, the US Supreme Court struck down one affirmative action program and upheld another at the University of Michigan.

The vote to strike down the undergraduate admissions program was 6 to 3. The vote to uphold the law school program was 5 to 4.

The court struck down the undergraduate admissions program because the justices said it didn't provide an individualized assessment of all applicants. The justices upheld the second admissions program at Michigan's law school, saying it did not violate constitutional principles of equal protection and did not amount to illegal reverse discrimination.

The decisions are significant because even though the court refused to rule out any use of race to achieve diversity in college and other government programs, the majority justices nonetheless made clear that any use of race must be narrowly tailored.

Justice Sandra Day O'Connor played a key role in the outcome of both cases - staking out middle ground on an issue that has divided the nation and often seemed to defy compromise.

She wrote the majority opinion upholding the law school admissions program and provided a critical fifth vote while concurring in an opinion written by Chief Justice William Rehnquist striking down the undergraduate program.

She explained the difference between the law school and undergraduate cases in her written concurrence in the undergraduate case. "The law school considers the various diversity qualifications of each applicant, including race, on a case-by-case basis," Justice O'Connor writes. "By contrast, the Office of Undergraduate Admissions relies on the selection index to assign every underrepresented minority applicant the same, automatic 20-point bonus without consideration of the particular background, experiences, and qualities of each individual applicant."

She adds: "This mechanized selection index score, by and large, automatically determines the admissions decisions for each applicant. The selection index thus precludes admissions counselors from conducting the type of individualized consideration the court's opinion in [the law school case] requires."

In upholding the Michigan Law School admissions program, the justices have given other highly selective colleges a road map to follow in their efforts to continue to achieve a diversity of thought and experience on the nation's most elite campuses. But they also set a deadline. "We expect that 25 years from now, the use of racial preferences will no longer be necessary," writes O'Connor.

Those on both sides of the contentious debate over affirmative action claimed victory after the ruling. "This is a resounding affirmation that will be heard across the land - from our college classrooms to our corporate boardrooms," says Mary Sue Coleman, president of the University of Michigan.

Roger Clegg of the Center for Equal Opportunity had a different take. "It's clear that in at least some instances the use of racial and ethnic preferences is illegal." But he adds that the issue remains unresolved. "The Supreme Court has sent everyone back to the trenches, both sides, and we're happy to continue to fight there."

Some critics of race-based admissions policies saw the split decision in the two cases as a defeat. "It just means the quota system in US higher education will be in place probably for decades to come," says Abigail Thernstrom, a commissioner on the US Commission for Civil Rights, a longtime critic of affirmative-action plans.

Despite the urging of many conservatives, the high court did not overturn the landmark 1978 Bakke decision, which permits the use of race as a factor in achieving campus diversity. But in overturning Michigan's undergraduate affirmative-action plan, the court said that Justice Lewis Powell's controlling opinion in Bakke called for a more restrictive approach in the use of race in college admissions than Michigan's approach.

The court said that rather than relying on race as a mere "plus factor" in a competitive admissions process, Michigan's undergraduate affirmative-action program created a two-track admission process in which white applicants with higher academic qualifications were consistently rejected to make room for less qualified minority applicants. The program was justified by the university's compelling interest in providing a diverse student body.

But majority justices found that while diversity continues to be a significant reason to justify the use of race as a factor in admissions decisions, it does not justify undergraduate admissions program.

At the undergraduate level, minority applicants to the University of Michigan are automatically granted 20 extra points out of a scale of 100 points. It is the equivalent of boosting the grade point average one full point.

At the university's law school, the admissions staff sought each year to admit a "critical mass" of black, Hispanic, and native American students to ensure the population would reflect what the admission staff deemed an acceptable level of racial and ethnic diversity. Over the past decade, the critical mass amounted to about 10 to 20 percent of each entering class.

The court's decisions stem from two cases challenging Michigan's affirmative-action plans. In one, two white undergraduate applicants, Jennifer Gratz and Patrick Hamacher, sued, claiming the university engaged in illegal racial discrimination when they were denied admission in 1995 and 1997. The primary defendant in the case was then university president Lee Bollinger. In the other case, Barbara Grutter, a white mother of two who ran her own business, sued the law school after she was denied admission in 1997.

Linda Feldmann and Mark Clayton contributed to this report.

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