Affirmative Action Survives the Test:
Racial and Ethnic Diversity a Benefit to Higher Education

By JOHN C. BRITTAIN

“There is nothing duller than a classroom of people whose backgrounds are identical.”
– Paul N. Courant, Provost, University of Michigan1

For the first time in 25 years, the United States Supreme Court decided a case clearly in support of affirmative action in the admission of racial and language minorities to colleges and universities. In deciding Grutter v. Bollinger,2 a bare majority of five justices answered the long awaited question in higher education by holding that the use of race in the admissions process to achieve a diverse student body is a sufficient compelling interest for the purpose of strict scrutiny under the Equal Protection Clause. As such a necessary interest, the government agency in this case, the University of Michigan Law School, satisfied the first part of the strict scrutiny test that permits it to use race for remedial purposes. In addition, the Law School’s affirmative action plan survived the second part of the constitutional test for the government’s use of race insofar as it was narrowly tailored by the consideration of race along with other non-racial factors in a non-quota system to make individualized determinations of applicants.
However, in a companion case, Gratz v. Bollinger,3 involving the UM College of Literature, Science and Arts (LSA), the Court found the undergraduate school’s affirmative action policy that automatically awarded 20 points for a minority applicant’s race or ethnicity (1/5 of total points) had a decisive effect on the outcome, and, therefore, was not narrowly tailored. Thus, the highest court in the land ruled decisively in favor of affirmative action in admissions of minority students for higher education and provided a prototype to guide universities in implementing affirmative action plans.
Virtually every college and university in the nation had a huge stake in the outcome of the University of Michigan cases because they had followed the singular decision of U.S. Supreme Court Justice Lewis Powell in Bakke v. Board of Regents of California.4 In that 1978 splintered decision involving the University of California at Davis Medical School, Justice Powell agreed with four other justices to permit the government to use race to remedy the past effects of discrimination against minorities such as African Americans. However, he carved out his own reason to only allow race as a factor in admissions for “the attainment of a diverse student body.”5 Similar to the juxtaposition in Grutter and Gratz, Justice Powell also held that the particular plan at the Medical School was an unconstitutional quota because it set aside sixteen seats for minorities in a class of one hundred first year medical students. Powell’s singular views were adopted as the virtual ruling of the Court by universities in creating affirmative action plans and by other courts, at least with no decision to the contrary by the U.S. Supreme Court. However, the Fifth Circuit Court of Appeals broke that 18-year trend when it decided Hopwood v. University of Texas in 1996, observing that Powell’s opinion did not represent the views of the Court in Bakke.6 But the Hopwood court was wrong. In deference to the academic judgment of the university in determining what is essential to its educational mission, the Grutter decision firmly holds that universities have “a compelling interest in attaining a diverse student body.”7

“We value the ideal of colorblindness and the ideal of integration, but given where we are in America today, we can’t have both.”
– Jeffrey Lehman, Dean of the
– University of Michigan Law School8


GRUTTER V. BOLINGER
Compelling State Interest
Rather than conclude that Powell’s views were entitled precedent in Bakke, the Court in Grutter articulated its rationale for diversity in higher education. Associate Justice Sandra Day O’Connor, as many predicted, provided the fifth and deciding vote for the majority consisting of Justices John Paul Stevens, David Souter, Ruth Bader Ginsberg and Steven Breyer. The Law School expressed an affirmative action policy of enrolling a “critical mass” of academically qualified and broadly diverse students for educational benefits. Justice O’Connor’s opinion adopted the findings of the district court that diversity “promotes cross-cultural understanding, helps to break down racial stereotypes, and enables [students] to better understand persons of different races.”9 In addition to these educational benefits, Justice O’Connor cited several friends of the court briefs (amici curiae) that extolled the virtues of diversity. For example, the Amicus American Educational Research Association referred to studies showing that diversity prepares students to coexist in a diverse workforce and society (W. Bowen and D. Bok’s book, “The Shape of the River;” and G. Orfield & M. Kurlaender, eds. 2001, “Diversity Challenged: Evidence on the Impact of Affirmative Action”). Another amicus, General Motors, on behalf of several corporations, asserted the real benefits of diversity. Managers learn effective business skills to compete in today’s global marketplace from exposure to diverse cultures and viewpoints. The amicus brief from retired Army General Julius W. Becton, Jr., on behalf of other high-ranking United States former military officers, expressed a strong belief that a racially diverse corps of officers was necessary to maintain the primary military mission of providing national security.
Even further, Justice O’Connor cited the legacy of Brown v. Board of Education10 for the proposition that, “effective participation by members of all racial and ethnic groups … is essential if the dream of one Nation, indivisible, is to be realized.” And since law school is the training ground for lawyers who occupy a large percentage of leadership roles in state, local and federal governments, “it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”11 To support this proposition, Justice O’Connor referred to Sweatt v. Painter12 as the case that outlawed segregation at the University of Texas School of Law (and indirectly created the historically all-Black law school now named the Thurgood Marshall School of Law at Texas Southern University). Therefore, the Court accepted the educational expertise of the university to “further its compelling interest in securing the educational benefits of a diverse student body.”13 Notwithstanding the sufficiency of the compelling interest, the Law School’s plan still had to be narrowly tailored.

Narrowly Tailored Means
The majority opinion in Grutter offered numerous factors in the blueprint of a constitutionally acceptable affirmative action plan. The plan must:
1. Not operate as a quota – no fixed percentages or automatic mechanical decisions predetermined by “soft variables” such as race;
2. Maintain flexibility to consider other non-racial variables such as geographic residence, foreign travel experience, fluency in languages or overcoming adversity;
3. Consider race as a factor only in the context of individualized determinations;
4. Examine in good faith, race-neutral alternatives, but it needs to exhaust every conceivable method such as a lottery and abandon its selectivity; and
5. Terminate in a reasonable time of no longer than 25 years.
These are the majority’s basic components, each of which are discussed at length in the opinion. Challenging the validity of these components, however, the dissent refuted the necessity for diversity in higher education and classifies the affirmative action plan at the law school as a quota similar to the quota found in Gratz.

“Diversity is no excuse for racism.”
– Sign held by student outside the U.S.
– Supreme Court in a demonstration.14

The Dissent in Grutter
The dissent, penned by Chief Justice William Rehnquist and joined by Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, attacked the Law School plan as a disguised quota system of racial balancing that failed the narrowly tailored test. To support its claim, the dissent compared statistics between the number of minority group applicants of African American, Hispanic and Native American and the number of each minority group admitted. The statistics revealed a close correlation between the percentage of minorities who applied and the percentage of minorities admitted to persuade the dissent to conclude that the Law School engaged in proportionate racial representation of applicants from selected minority groups.
Therefore, according to the dissent, the Law School used the “critical mass” goal to engage in an unconstitutional means of racial balancing in violation of the constitutional guarantee of equal protection of laws. Although Justice Kennedy dissented based upon an interpretation of the statistical data in the admissions process, he agreed with Justice Powell’s stance in Bakke that a university may “take account of race as one, non-predominant factor in a system designed to consider each applicant as an individual provided the program can meet the test of strict scrutiny by the judiciary.”15 Thus, Justice Kennedy might have provided a sixth vote in favor of the use of race as a factor in admission, but he felt that the majority of the Court failed to apply the proper strict scrutiny test.
Finally, to finish the analysis of Grutter, Justice Clarence Thomas dissented in a separate opinion that began with a quote from the famous African American statesman, former slave and abolitionist, Frederic Douglass:
“What I ask for the Negro is not benevolence, not pity, not sympathy, but simple justice. … Do nothing for us! Your doing with us has already played the mischief with us. Do nothing for us. And if the Negro cannot stand on his own legs. Let him fall also. All I ask is, give him a chance to stand on his own legs!”16
Thomas brands the Law School’s goals of achieving educational benefits from racial diversity as “classroom aesthetics.” As a result, he found no real proof of the educational benefit in racial diversity. In fact, he argued that the State of Michigan had no compelling interest in maintaining a law school because University of Michigan Law School’s 2002 graduates made up only 6 percent of the total applicants to the Michigan bar.
Thomas also argued that the Law School had no compelling interest to use highly selective admission criteria. He recalled the use of the German certificate system of selecting students from secondary schools certified by the university. Today, the modern form of the certificate system is the percentage plans featuring the acceptance of students to undergraduate school based on their graduation in the top percentile of their high school classes (i.e., Texas 10 percent, California 4 percent and Florida 20 percent).
Justice Thomas continued his dissent using sharp and divisive views on affirmative action and race. For example, he accused law schools with select admissions criteria of picking “racial winners and losers.”17 According to Justice Thomas, law schools use the LSAT, which produces racially disparate performance results and is of disputed validity in predicting success in law school. Then the schools apply race as a factor in the admissions process to correct for the underperformance of African Americans that the admissions process would otherwise exclude. Using this corollary, Justice Thomas questioned why a Supreme Court that forced the South to desegregate its schools was now afraid to make universities stop a racially discriminatory admissions policy that compensated for a minority student’s low LSAT score.
In what may be termed an extremist statement, Justice Thomas asserted that racial minority beneficiaries do not perform “at (or even near) the same level as those students who receive no preferences.” He stated that minority students are “unprepared” and “overmatched,” and “cannot succeed in the cauldron of competition.”18 Thus in his view, in addition to the harm on the “test subject” (meaning African American and Latino law students), affirmative action policies still continue to provoke resentment among non-minority persons who feel the government’s use of race discriminated against them in reverse. As Justice Thomas repeated his statement in Adarand v. Pena,19 affirmative action programs “stamps minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are entitled to preferences.”20
Finally, Justice Thomas agreed with the majority opinion in two respects. First, the majority decision did not consider any issues of discrimination among minority groups, such as using race to favor Latinos over Asians and African American applicants. Of course, the University denied engaging in such a practice. Second, he grudgingly accepted the 25-year limitation on the use of the criteria, though he expressed doubt that the racial gap in credentials would close during that period. According to Thomas, the gap will remain the same or even widen because African Americans will have no incentive to improve their LSAT scores above 155 (slightly over the national average) and affirmative action programs will guarantee them admission to law schools at the lower level.

GRATZ V. BOLLINGER
Narrowly Tailored Means
As stated above, the Gratz case concerned only the constitutionality of the University of Michigan College of LSA’s affirmative action program; the Grutter case decided the issue of race as a compelling state interest. Chief Justice Rehnquist, who wrote the dissenting opinion in Grutter, lead a majority of justices in Gratz in holding that the LSA affirmative plan was not narrowly tailored and violated the Equal Protection Clause of the Fourteenth Amendment. This time, Justices O’Connor and Breyer switched sides to form six votes along with the other dissenters in Grutter, namely, Justices Scalia, Kennedy and Thomas. Distilled to its essence, the Gratz majority held that the automatic allowance of 20 points to a minority student had the effect of making the factor of race decisive for virtually every minimally qualified, underrepresented minority applicant.21

Dissent in Gratz
In contrast to the majority in Gratz, Justices Souter and Ginzberg dissented on essentially the same point, that the undergraduate College of LSA uses a numbered scale to accomplish the same results as the law school’s “holistic approach.” Moreover, according to them, the 20 points was not a decisive factor, only a trigger for further review and an individualized determination in each case.
In addition, Justice Ginzberg laid out one of the strongest statements about race. She presented an array of data to portray a racially divided society in terms of unemployment, poverty, access to health care, segregation and poverty in education, income earnings, discrimination in employment, prejudice in housing and consumer transactions to justify special measures. And in the only reference to international law by the Court, Justice Ginzberg invoked the United Nations’ Convention on the Elimination of All Forms of Racial Discrimination, that was ratified by the United States in 1994. This document endorsed special measures to protect the rights of certain racial groups in the enjoyment of human rights and freedoms.

“Affirmative action is about access to schools, jobs and contracts. We cannot be caught in the contradiction of being on the front line of war in Iraq and the background of the schools, jobs and contracts. We cannot be caught in that crossfire.”
– Reverend Jesse Jackson22


Conclusion
When will the struggle over affirmative action end? Dean Lehman of the University of Michigan responded, “[w]hen we are able to have diversity without paying attention, without even trying.”23
Often battered and bruised in the last two decades, the legality of affirmative action has survived, despite the efforts of its opponents. With many in higher education pleading for deference in determining the best method of a college education inclusive of racial and ethnic diversity, the business community accentuating the economic benefits of diversity, and former military generals insisting on racial diversity in maintaining national security in the post 9/11 period, the Supreme Court satisfied those interests in the University of Michigan affirmative action cases. Whether the Law School affirmative action plan based on a holistic critical mass is more constitutional than the LSA undergraduate plan of a numerical point system with 20 automatic points for racial diversity is not that important. In the end, the Court found racial diversity in colleges and universities and a prototype plan featuring no fixed points, no quota, and a flexible consideration of racial and non-racial factors in making individualized determinations in admissions to colleges legally acceptable.
Although litigation addressing the implementation of affirmative action plans may arise, these decisions provide guidance for affirmative action plans for the next 25 years, though this country may not achieve true racial equality by year 2028. In 2003, the nation celebrated the 100th anniversary of W.E.B. DuBois’ profound prediction, “The problem of the twentieth century is the problem of the color line.”24 The Grutter and Gratz cases suggest that we should renew DuBois’ prediction for the twenty-first century too.

Endnotes
1. Greg Winter, University of Michigan Alters Admissions Use of Race, N.Y. Times, Aug. 29, 2003, at A12. 2. 123 S.Ct. 2325 (2003). 3. 123 S.Ct. 2411 (2003). 4. 438 U.S. 265 (1978). 5. 438 U.S. at 311. 6. Hopwood v. Texas, 78 F. 3d 932 (5th Cir. 1996) (Hopwood I); 236 F. 3d 256 (5th Cir. 2000) (Hopwood III); see also Johnson v. Board of Regents of Ga., 263 F. 3d 1234 (11th Cir. 2001) (same result as in the Hopwood cases). 7. 123 S.Ct. at 2339. 8. Rachel Hartigan Shea, What’s the Place of Race?, U.S. News and World Report, March 31, 2003, at 46. 9. Hopwood at 236 F.3d at 256. 10. 347 U.S. 483 (1954). 11. 339 U.S. 629 (1950). 12. 339 U.S. 629 (1950). 13. 123 S.Ct. at 2341. 14. Tony Mauro, Court Affirms Continued Need for Preferences, 229 N.Y. L.J. 223, 234-39 (2003). 15. Id. at p. 24. 16. “What the Black Man Wants: An Address Delivered in Boston, MA, on 26 January 1865,” reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) 17. Id. at 37. 18. Id. at 38. 19. 515 U.S. 200 (1967). 20. Id. at 39. 21. 123 S.Ct. at 2427 22. Scotty Ballard, How the Loss of Affirmative Action Could Affect You, 103 Jet, April 21, 2003 at 12. 23. Shea, supra note 8, at 47. 24. W.E.B. DuBois, “The Souls of Black Folks” (1903).


John C. Brittain is a professor of law and former dean at Thurgood Marshall School of Law at Texas Southern University. Mark Styles, a third-year law student, contributed to the research and editing of this article.

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