Journal of College and University Law
Winter, 2001
Article
*709 SURVEYING THE CURRENT LEGAL LANDSCAPE FOR AFFIRMATIVE ACTION IN
ADMISSIONS
Victor G. Rosenblum [FNa1]
Copyright ©
2001 by National Association of College & University Attorneys;
Victor G. Rosenblum
I. INTRODUCTION
The current legal landscape for affirmative action is bleak, yet not entirely
barren. Because of its invocation of and dependence upon racial classification,
affirmative action encountered the Supreme Court's suspicion, recurrent hostility
and imposition of the barrier of strict scrutiny to judicial approval,
notwithstanding the benign nature of its motivation.
Affirmative action proponents were dealt a definitive blow by the Bakke
decision's rejection of dual admission tracks or racial set asides, [FN1] yet were
left with a residue of comfort by the narrow facet of the Court's ruling in Bakke
that allowed inclusion of race as one among many explicit admissions factors.
Negative post-Bakke responses to municipal and federal government affirmative
action plans governing contracting in the Croson [FN2] and Adarand [FN3] cases left
affirmative action supporters with such fears that the worst is yet to come that
they preferred settlement and withdrawal of the Taxman case from the Supreme
Court's agenda after certiorari was granted by the Justices, rather than risk
anticipated rejection of a diversity justification for a racial preference in
employment retention. [FN4] Even the status and scope of Bakke's truncated
allowance of race as an admissions factor in a single-track system that can serve a
state's compelling interest in diversity have not gone without challenge, the Fifth
Circuit's Hopwood [FN5] opinion invalidating the affirmative action admissions
program at the University of Texas serving as prime example. [FN6]
Instances of racial quotas, racial set asides and separate racial tracks for
admission having been ruled definitively beyond the legal pale, the proponents of
affirmative action have had to find current comfort in judicial intimations of what
may still constitute compelling governmental interests that may, with requisite
narrow tailoring, in particular circumstances warrant affirmative *710 action and
thereby trump the presumption that strict judicial scrutiny of any racial
classification will lead to its invalidation.
Typical of affirmative action proponents' current stances is the statement by
U.S. Commission on Civil Rights Chair Mary Frances Berry that "[n] otwithstanding
the legal and rhetorical challenges to its validity as public policy, affirmative
action is still the law of the land, upheld by the Supreme Court's 1978 Bakke
decision." [FN7] Surveying the current legal landscape for affirmative action in
admissions requires analyses of the Bakke rulings' criteria and rationale for
permissible uses of race in admissions and of pertinent judicial decisions on
affirmative action in the intervening years to estimate whether and to what extent
they have overridden, corroded, reinforced, or left the Bakke rulings dangling in
limbo. At bottom, an answer must be sought to whether the Bakke rulings and
rationale retain precedential clout that can uphold the constitutionality of
current single-track affirmative action programs using race as one of multiple
factors in admissions against carefully articulated challenges that would erect
tombstones over them.
II. The Bakke Rulings' Criteria for Permissible Uses of Race in Admissions
Precisely what affirmative action programs did the Bakke case rulings authorize?
Alternative readings of the Court's answers to that basic question are feasible-indeed necessary--given the fact that none of the diverse, detailed opinions in the
case commanded a majority. Justice Powell, whose judgments prevailed, reasoned
essentially for himself. Only Section V-C of his opinion containing his ruling was
joined by Justices Brennan, White, Marshall and Blackmun to constitute a majority
for reversing the California court's judgment prohibiting the university from "any
consideration of the race of any applicant" in its admissions program.
The full text of Part V-C states:
In enjoining petitioner from ever considering the race of any applicant,
however, the courts below failed to recognize that the State has a substantial
interest that legitimately may be served by a properly devised admissions program
involving the competitive consideration of race and ethnic origin. For this reason,
so much of the California court's judgment as enjoins petitioner from any
consideration of the race of any applicant must be reversed. [FN8]
*711 Taken alone, this ruling by a majority in Bakke would allow a single-track
admissions system explicitly considering race and ethnic diversity together with
other indicators of applicants' suitability and competence to pass constitutional
muster regardless of whether or not use of race is corrective of established past
racial discrimination. If taken in conjunction with their statement construing the
issue before the Court and describing the majority's ruling on it at the outset of
the separate opinion by Justices Brennan, White, Marshall and Blackmun, however,
some findings of past racial discrimination for which the challenged racial
classification serves as a corrective or remedy seem required to precede or
accompany any use of the racial classification. They defined the issue the Bakke
Court had to decide as "whether Government may use race conscious programs to
redress the continuing effects of past discrimination;" and they viewed the
"central meaning of today's opinion[]" as allowing Government to take race into
account when it acts "to remedy disadvantages cast on minorities by past racial
prejudice, at least when appropriate findings have been made by judicial,
legislative, or administrative bodies with competence to act in this area." [FN9]
Unlike Brennan, White, Marshall and Blackmun, Justice Powell was careful to make
clear the distinction in his opinion between what would constitutionally be
required to justify a facial intent to discriminate racially, as was evident in the
university's two track program in Bakke, and constitutional justification when no
such facial infirmity exists. The State discriminates facially when it establishes
"a classification that aids persons perceived as members of relatively victimized
groups at the expense of other innocent individuals;" [FN10] such discrimination
cannot pass constitutional muster "in the absence of judicial, legislative, or
administrative findings of constitutional or statutory violations." [FN11] In order
to invoke these findings to justify establishing a racial classification, "a
governmental body must have the authority and capability to establish, in the
record, that the classification is responsive to identified discrimination." [FN12]
Justice Powell proceeded to maintain:
No such facial infirmity exists in an admissions program where race or ethnic
background is simply one element -- to be weighed fairly against other elements-in the selection process ... And a court would not assume that a university,
professing to employ a facially nondiscriminatory admissions policy, would operate
it as a cover for the functional equivalent of a quota system. In short, good faith
would be presumed in the absence of a showing to the contrary in the manner
permitted by our cases. [FN13]
*712 Where the university operates a facially nondiscriminatory admissions
program, no threshold findings by an authoritative governmental body are necessary
to justify it. Rather, the challenger of that program must bear the burden-pursuant to the standards set forth in cases such as Washington v. Davis [FN14] and
Village of Arlington Heights v. Metropolitan Housing Development Corporation
[FN15]--of proving the university's intent to discriminate racially.
*713 It is puzzling that Justices Brennan, White, Marshall, and Blackmun did not
echo Justice Powell's distinction between facial and non-facial discriminatory acts
in setting forth "the central meaning of today's opinions." Instead, as we have
already seen, they trumpeted as that "central meaning" that the many opinions of
the Justices "should not and must not mask" a required nexus between taking race
into account and remedying disadvantages cast on minorities by past racial
prejudice, "at least when appropriate findings have been made by judicial,
legislative or administrative bodies with competence to act in this area." [FN16]
The thrust of this statement was that some findings of past racial prejudice are
invariably necessary to justify any taking of race into account, a point arguably
at odds with Justice Powell's position.
At least equally puzzling was the failure of Justices Brennan, White, Marshall
and Blackmun to join Justice Powell in declaring diversity in education a
compelling state interest. Although it would not have contradicted any of their
other statements or arguments to declare diversity compelling, there was simply no
discussion or even mention by them of diversity as a factor in admissions. The
closest they came was their statement of agreement with Justice Powell that a plan
like the "Harvard plan [which sought a diverse student body] is constitutional
under our approach." [FN17] Given the sweeping breadth of the position they did
explicitly endorse-- that a state government "may adopt race conscious programs if
the purpose of such programs is to remove the disparate racial impact its actions
might otherwise have and if there is reason to believe that the disparate impact is
itself the product of past discrimination, whether its own or that of society at
large" [FN18] -- one might maintain that, a fortiori, they also accepted Justice
Powell's narrower race-as-one-component of diversity standard. But the fact remains
that they said nothing about diversity, leaving Justice Powell as sole explicit
advocate for diversity as a compelling interest.
With only Section V-C of Powell's opinion adopted by a majority of the Court, can
Bakke's otherwise fragmented views on permissible uses of race be fused or
reconciled persuasively to state a concrete holding? The Supreme Court's
instruction a year before the Bakke rulings for reading its fractured opinions
helps. In Marks v. United States, [FN19] the Justices declared, "[w]hen a
fragmented Court decides a case and no single rationale explaining the result
enjoys the assent of five Justices, the holding of the Court may be viewed as that
position taken by those members who concurred in the judgments on the narrowest
grounds." [FN20] I believe the panel of the Ninth Circuit that recently upheld the
constitutionality of the University of Washington Law School's affirmative action
program [FN21] applied the Supreme Court's instruction authoritatively and
convincingly when it concluded that "Justice Powell's analysis is the narrowest
footing upon which a race- conscious decision *714 making process could stand."
[FN22] The text of Section V-C together with Justice Powell's narrow criteria
(rather than Justice Brennan's broad criteria) for applying it become, pursuant to
the Marks instructions, Bakke's concrete holding governing permissible uses of race
in admissions.
III. Status of Justice Powell's Bakke Rationale in Post-Bakke Decisions
on Affirmative Action
A. The Hopwood Majority's Rejection of Powell's Bakke Rationale
In definitively rejecting diversity as a compelling state interest in the 1996
Hopwood case, the majority of the Fifth Circuit panel invoked Supreme Court rulings
in the Croson and Adarand cases to claim that diversity had been rejected by the
Justices as a compelling interest. Notwithstanding Justice O'Connor's language in
her concurring opinion in the earlier Wygant decision [FN23] stating that "although
its precise contours are uncertain, a state interest in the promotion of racial
diversity has been found sufficiently 'compelling,' at least in the context of
higher education, to support the use of racial considerations in furthering that
interest", [FN24] the majority in the Hopwood case maintained that O'Connor's
language in subsequent cases showed that she did not approve of or accept diversity
as a compelling interest. [FN25] O'Connor's "Adarand- vindicated dissent in Metro
Broadcasting" was unequivocal:
Modern equal protection doctrine has recognized only one [compelling state]
interest: remedying the effects of racial discrimination. The interest in
increasing the diversity of broadcast viewpoints is clearly not a compelling
interest. It is simply too amorphous, too insubstantial, and too unrelated to any
legitimate basis for employing racial classifications. [FN26]
Furthermore, O'Connor's opinion for the plurality in Croson stated that "[c]
lassifications based on race carry a danger of stigmatic harm. Unless they are
strictly reserved for remedial settings, they may in fact promote notions of racial
inferiority and lead to a politics of racial hostility." [FN27]
The Hopwood majority, while constitutionally ruling out any and all racial
classifications in admissions, nonetheless made its own determination to bless a
wide range of factors other than school records and test scores of applicants as
bases for admissions decisions. Without justifying or explaining how he came to
compile the list of factors he allowed university officials to rely upon in
choosing one applicant over another, Judge Smith-- after reiterating that *715 "the
use of race per se is proscribed" -- admitted that some of his permissible factors
"may have some correlation with race" but said nothing more specific or
enlightening about them. A university, he declared:
may properly favor one applicant over another because of his ability to play
the cello, make a downfield tackle, or understand chaos theory. An admissions
process may also consider an applicant's home state or relationship to school
alumni. Law schools specifically may look at things such as unusual or substantial
extracurricular activities in college, which may be a typical factor affecting
undergraduate grades. Schools may even consider factors such as whether an
applicant's parents attended college or the applicant's economic and social
background. [FN28]
Judge Wiener's special concurrence in the Hopwood case agreed with the majority
opinion of Judge Smith that the University of Texas failed to establish the
existence of present effect of past discrimination sufficient to justify the use of
a racial classification; [FN29] but he differed with the majority's view that
diversity can never be a compelling state interest. "I would assume arguendo,"
Wiener maintained, "that diversity can be a compelling interest but conclude that
the admissions process here under scrutiny was not narrowly tailored to achieve
diversity." [FN30] The main reason Judge Wiener could not go along with the panel's
conclusion that remedying vestigial effects of past discrimination is the only
compelling interest that can ever justify racial classification was that
I do not read the applicable Supreme Court precedent as having held squarely
and unequivocally either that remedying effects of past discrimination is the only
compelling state interest that can ever justify racial classification, or
conversely that achieving diversity in the student body of a public graduate or
professional school can never be a compelling governmental interest. [FN31]
Enlarging on this point in a footnote, Wiener stated:
[U]nlike the panel opinion, which jettisons Justice Powell's Bakke opinion
because of its singularity, I find that singularity to be precisely the factor that
makes Justice Powell's opinion the most pertinent Supreme Court statement on this
issue. Therefore, when and if the Supreme Court addresses the case or its analog,
the Court will have no choice but to go with, over, around, or through Justice
Powell's Bakke opinion. [FN32]
*716 Stating that education provides a "unique context" for compelling interest
analysis, Wiener continued:
This unique context ... differs from the employment context, differs from the
minority business set aside context, and differs from the redistricting context; it
comprises only the public higher education context and implicates the uneasy
marriage of the First and Fourteenth Amendments. Consequently, we play with fire
when we assume an easy crossover of Fourteenth Amendment maxims pronounced in cases
decided in other contexts. [FN33]
These clearly articulated conflicts between the opinions of Judge Smith and Judge
Wiener in Hopwood question significantly in my judgment the authoritativeness of
Hopwood's proclamations disrespecting diversity and proscribing race as an
admissions factor except when narrowly tailored to remedy effect of specific
findings of past discrimination.
B. The Taxman Panel's Rejection of Diversity to Justify Racial Preference in
Teacher's Job Retention
Comprehensive probing by the Third Circuit of the diversity issue and of the
bearing on it of the line of cases from Bakke to Hopwood might have been expected
when Taxman v. Board of Education of Piscataway was decided en banc in August 1996
by a nine-to-four vote. [FN34] But the diversity analyses proved less than
exhaustive despite the School Board's reliance on diversity as primary
justification for retaining an African-American in preference to a Caucasian
teacher when the two were deemed identically well qualified otherwise. The majority
noted that the "board recognizes that there is no positive legislative history
supporting its goal of promoting racial diversity 'for education's sake,' and
concedes that there is no caselaw approving such a purpose to support an
affirmative action plan under Title VII." [FN35]
The Third Circuit refused to accept as relevant to the non-remedial diversity
goal judges' statements extolling the educational value of exposing students to
persons of diverse races and backgrounds in cases involving corrective or remedial
efforts to confront racial segregation. [FN36] Justice Powell's reasoning in Bakke
was held to be "inapposite," [FN37] apparently because, in arguing in Bakke that
universities "must be accorded the right to select those students who will
contribute to the 'robust exchange of ideas,"' Powell invoked a countervailing
constitutional interest, that of the First Amendment, that is not present here.
[FN38] In dismissing the bearing of Bakke on Taxman, the Taxman majority concluded
that "Bakke's factual and legal setting, as well as the diversity that universities
aspire to in their student bodies, are, in our *717 view, so different from the
facts, relevant law and the racial diversity purpose involved in this case that we
find little in Bakke to guide us." [FN39] As to the bearing of Hopwood on Taxman,
the majority merely took note of the reasoning of the Hopwood panel after finding
that "the issues resolved differ from that before us." [FN40] When the Hopwood
court ruled that the need for student body diversity in higher education can never
serve as a compelling justification for racial classifications, the Hopwood judges
were, according to the Taxman majority, "[h]olding what the Supreme Court has never
explicitly held." [FN41] In the final analysis, though, the Taxman majority
followed the Hopwood panel's conclusion that a racial classification can be a
compelling interest only if remedial: "Although we applaud the goal of racial
diversity, we cannot agree that Title VII permits an employer to advance that goal
through non-remedial discriminatory measures." [FN42]
Of the four dissenters in the Taxman case, only Judges Scirica and Sloviter
emphasized Justice Powell's reasoning in Bakke to support the School Board's nonremedial action on diversity. They invoked his statement that "'the nation's future
depends upon leaders trained through wide exposure to the ideas and mores of
students as diverse as this Nation of many peoples"' [FN43] and that a "'great deal
of learning occurs ... through interactions among students of both sexes, of
different races, religions and backgrounds."' [FN44] The wisdom of Powell's
statements on diversity, they maintained, "resonates as strongly as ever." [FN45]
They concluded that Title VII does not prevent "a school district, in the exercise
of its professional judgment, from preferring one equally qualified teacher over
another for a valid educational purpose." [FN46]
C. The Wittmer Panel's Approval of a Racial Preference in Prison "Boot Camp"
Employment
Dealing with the highly particularized employment needs of a county prison "boot
camp" for young criminals, the Seventh Circuit ruled in Wittmer v. Peters [FN47]
that racial preference given a black male applicant for a lieutenant's job did not
deny equal protection to white male applicants who scored higher on the qualifying
test.
Writing for Judges Eschbach, Evans, and himself, Chief Judge Posner was careful
to spell out in detail what the panel did and did not hold. It rejected the "role
model" argument for reverse discrimination [FN48] and denied that prison
authorities were "entitled to take steps to make the racial composition *718 of the
security staff mirror that of the inmate population." [FN49] In addition, it did
not hold "race is (or is not) a proper factor to take into account in staffing an
ordinary prison, in which the guards do not interact with the inmates in the same
fierce intimacy as in a boot camp." [FN50]
The panel concluded only that "[t]he black lieutenant is needed because the black
inmates are believed unlikely to play the correctional game of brutal drill
sergeant and brutalized recruits unless there are some blacks in authority in the
camp." [FN51] Expert evidence that plaintiffs did not rebut "backed up" this
position. [FN52]
Narrow as its holding was, the panel extended a broad invitation to academic
research, particularly on the "urgency" of social experimentation in the area of
race. [FN53] The opinion was also noteworthy for its particularized spelling out of
the criteria for strict scrutiny analysis for all racial classifications:
While we may assume that a practice that is subject to the skeptical,
questioning, beady-eyed scrutiny that the law requires when public officials use
race to allocate burdens or benefits is not illegal per se, it can survive that
intense scrutiny only if the defendants show that they are motivated by a truly
powerful and worthy concern and that the racial measure that they have adopted is a
plainly apt response to that concern. They must show that they had to do something
and had no alternative to what they did. The concern and the response, moreover,
must be substantiated and not merely asserted. [FN54]
As to plaintiffs' invocation of the Hopwood panel's insistence that the only
racial classification that can survive strict scrutiny is one demonstrably designed
to cure the ill effects of past discrimination by the public institution that is
asking to be allowed to try this dangerous cure, Judge Posner consigned and
confined it to the realm of dicta. "The weight of judicial language depends on
context," he emphasized. It "would be unreasonable to conclude that no other
consideration except a history of discrimination could ever warrant a
discriminatory measure unless every other consideration had been presented to and
rejected by" the judge. [FN55]
*719 D. The Brewer Panel Majority's Affinity for Powell's Bakke Opinion
Differences expressed by Judge Wiener with the Hopwood majority and by Judges
Scirica and Sloviter with the Taxman majority about the meaning and current legal
status of Justice Powell's rulings in Bakke on diversity were echoed in the Second
Circuit panel's decision in May 2000 involving the denial of transfer of a white
student from her city school to a suburban elementary school solely on the basis of
race. [FN56] Vacating and remanding the district court's issuance of a mandatory
preliminary injunction ordering that the student be allowed to transfer, the
majority of the Second Circuit panel disagreed with the District Court's
expressions of doubt that the defendants could demonstrate a compelling
governmental interest in denying the transfer. The panel agreed with the District
Court that the student could be irreparably harmed in the absence of an injunction
[FN57] but did not agree that the plaintiffs met their burden to demonstrate a
clear likelihood of success on the merits. The panel majority disputed in
particular the District Court's acceptance of the Fifth Circuit's ruling in Hopwood
that remedying past wrongs by the governmental entity involved is the only
compelling state interest to justify racial classifications. The majority of the
Brewer panel maintained that reducing racial isolation inorder to ameliorate
arguably de facto segregation in the schools might serve a sufficiently compelling
governmental interest to justify a racial classification in the absence of proving
past wrongs by the school authorities. [FN58] The Fifth's Circuit's ruling in
Hopwood, that remedying its past wrongs is the only compelling interest to justify
a governmental entity's use of a racial classification, was found to be at odds
with the First Circuit's acknowledgment that "[t]he question of precisely what
interests government may legitimately invoke to justify race-based classifications
is largely unsettled." [FN59] The Seventh Circuit had similarly found the issue
"unsettled," [FN60] and the Fourth Circuit found remaining "unresolved" the issue
whether diversity is a compelling interest. [FN61]
Some courts, the Brewer panel noted, "continue to accept race based schemes that
are not linked to remedying past discrimination by the governmental entity at
issue." [FN62] The Second Circuit not only has not previously *720 taken the
position that diversity or other non-remedial state interests can never be
compelling in the educational setting; binding precedent explicitly establishes
that combating de facto segregation serves a compelling government interest. [FN63]
The dissenting judge in Brewer, although favoring Justice Powell's opinion in
Bakke identifying consideration of race in achieving a diverse student body as a
compelling state interest, noted that "the Supreme Court never has adopted that
position." [FN64] In any event, the Program failed the narrow tailoring component
of strict scrutiny [FN65] in his judgment.
To the argument that the Supreme Court's Croson decision--holding that a racebased set aside program in the construction industry could not be justified where
there was no "identified discrimination in the Richmond construction industry"
[FN66]--confined compelling government interests that justify a racial
classification to those needed to remedy the government entity's established record
of racial discrimination, the Brewer majority responded that Croson did not deal at
all with whether a non-remedial purpose could constitute a compelling government
interest. "[B]ecause the classification at issue in Croson was only defended as
necessary to remedy past discrimination" it would be "questionable" to cite the
decision for concluding that no other consideration except a proven history of
discrimination by the government entity establishing the racial classification
could ever warrant a discriminatory measure. [FN67]
E. Recent Rejection of Powell's Bakke Rationale by the District Court in Johnson v.
Georgia
The most recent court ruling to clone the Hopwood majority's rejection of Justice
Powell's opinion in Bakke was that by U.S. District Court Judge Edenfield in
Johnson v. Board of Regents of the University Systems of Georgia on July 24, 2000.
[FN68] Judge Edenfield held that the University of Georgia violated Title VI by
granting minority applicants additional points under its system in which admission
was dependent on point total. In sharp contrast with Justice Powell's positions
that "[t]he freedom of a University to make its own *721 judgments as to education
includes the selection of its student body" [FN69] and that "[t]he atmosphere of
'speculation, experiment and creation' -- so essential to the quality of higher
education -- is widely believed to be promoted by a diverse student body," [FN70]
Judge Edenfield maintained that "the very concept of 'diversity' has become so
malleable that it can instantly be conscripted to march in any ideologue's army,
and exploited by government officials to avoid answering tough questions." [FN71]
Charging that the effort to justify racial classification as necessary to achieve
diversity serves the "procrustean presumption" that all members of a particular
minority race will think and act differently from whites and thus contribute to the
student body's overall educational experience, Judge Edenfield ruled the
presumption invalid and any racial classification "prohibited." [FN72] As though
lecturing Powell on the alleged inconsistency between Powell's endorsement of
student body diversity as a compelling interest and his reiteration of the
principle that Fourteenth Amendment rights are personal rights "guaranteed to the
individual," not group rights, [FN73] Edenfield stressed that a "policy relying on
the crude, and dangerous, proxy of race for ideological diversity sits in antipathy
to this principle." [FN74] He concluded that "the promotion of student body
diversity in higher education is not a compelling interest sufficient to overcome
Title VI's prohibition against racial discrimination." [FN75]
F. Recent Acceptance of Powell's Bakke Rationale by the Ninth Circuit in Smith v.
Washington
The most recent court ruling to dispute and refute the Hopwood majority's
rejection of Justice Powell's opinion in Bakke was that by a panel of the Ninth
Circuit in Smith v. University of Washington Law School on December 4, 2000. In
affirming the district court's denial of partial summary judgment to challengers of
the law school's affirmative action program, Judges Fernandez, Reavly and Thomas,
rejected plaintiffs' claim that race can be used as a factor in achieving
educational diversity only when it demonstrably serves certain limited remedial
purposes. [FN76]
Insisting that "at our level of the judicial system Justice Powell's opinion
remains the law," [FN77] the panel acknowledged that its decision contradicted
Hopwood [FN78] and explained its adherence to Powell's Bakke opinion by applying
the Justices' directive on reversing precedents in Agostini v. Felton. [FN79] Judge
Fernandez's opinion for the unanimous panel read Justice Powell in *722 Bakke as
authorizing race as a factor in educational admission decisions "even where that
was not done for remedial purposes." [FN80] Although he was "well aware of the fact
that much has happened since Bakke was handed down" and that the Supreme Court "has
not looked upon race-based factors with much favor," [FN81] that Court "has not
indicated that Justice Powell's approach has lost its vitality in that unique niche
of our society." [FN82] Because the Justices directed lower courts in Agostini not
to "conclude [that] our more recent cases have, by implication, overruled an
earlier precedent," [FN83] the Ninth Circuit panel insisted, regarding Bakke, that
"regardless of what we think the Supreme Court might do, we must let it decide."
[FN84] Judge Fernandez declared:
We, therefore, leave it to the Supreme Court to declare that the Bakke
rationale regarding university admissions policies has become moribund, if it has.
We will not. For now, therefore, it ineluctably follows that the Fourteenth
Amendment permits University admissions programs which consider race for other than
remedial purposes, and educational diversity is a compelling governmental interest
that meets the demands of strict scrutiny of race-conscious measures. [FN85]
IV. DEFERENCE TO EDUCATORS' JUDGMENT AS A DECISIONAL FACTOR
The mood and tone of post-Bakke affirmative action cases range from overtly
hostile to and rejective of the challenged governmental actions, to acceptance and
replication of Justice Powell's rationale. These disparate, diverse reactions to
Bakke - taken together with the Justices' consideration of, and occasional
deference to, the different legal status of higher education from that of industry
or commerce and to the professional judgment of educators - invite supporters of
affirmative action to stay in the legal fray with legitimate anticipation that
Justice Powell's positions in Bakke (that diversity is a compelling interest and
race is one of multiple acceptable factors in a single-track admissions system) can
be sustained.
Remaining unsettled in the wake of seemingly contradictory opinions are
continuing issues of whether diversity is a compelling interest in education and
whether findings of past racial discrimination for which a challenged racial
classification serves as a corrective must invariably precede or accompany any use
of a racial classification. [FN86] Open as well is the legal status of *723 Justice
Powell's differentiation between facial and non-facial racial classifications in
education.
Can what Judge Wiener in his Hopwood opinion referred to as education's
"unique
context" for compelling interest analysis enable racial classifications in
admissions that conform to Powell's Bakke criteria pass muster in today's Supreme
Court? My answer is a guarded "yes," bolstered in considerable part from comparison
of the treatment accorded educators' judgment by the Justices in the VMI [FN87] and
Wisconsin [FN88] cases.
A. Factors in the Supreme Court's Rejection of Educators' Judgment to Justify
Single Sex Education in the VMI Case.
Virginia sought to justify VMI's single-sex admissions policy on the basis that
diversity in education, including allowance of room for single sex institutions, is
desirable and that educators found that VMI's "adversative method" of training
provides benefits that could not be made available unmodified to women without
destroying VMI's program. Calling into question and then proceeding to refute the
empirical validity of Virginia's claim, the Court insisted that claims made to
justify official classification based on gender must be "exceedingly persuasive"
and "must be genuine, not hypothesized or invented post hoc in response to
litigation. And it must not rely on overbroad generalizations about the different
talents, capacities or preferences of males and females." [FN89] It is not
disputed, Justice Ginsberg maintained in her opinion for the Court, "that diversity
among public educational institutions can serve the public good. But Virginia has
not shown that VMI was established, or has been maintained, with a view to
diversifying, by its categorical exclusion of women, educational opportunities
within the Commonwealth." [FN90] In actuality, VMI's program, while serving
liberally the State's sons, "makes no provision whatever for her daughters." [FN91]
Had Virginia been able to present proof of "purpose genuinely to advance an array
of educational options," [FN92] the Court would have been more receptive to its
claim. Similarly, the notion that admission of women would destroy the adversative
system of training "is a judgment hardly proved, a prediction hardly different from
other 'self-fulfilling prophecies' once routinely used to deny rights or
opportunities." [FN93] In short, to qualify for deference, assertions about
educators' professional judgments must be supported by the empirical record, and
the concern and the response must be substantiated (calling to mind Judge Posner's
criteria in Wittmer), not merely asserted in a post hoc rationalization.
*724 B. Factors in the Supreme Court's Acceptance of Educators' Judgment to Justify
Mandatory Student Fees in the Wisconsin Case
As I perceive the context and conclusions in the Supreme Court's recent unanimous
decision upholding the constitutionality of mandatory student fees and reversing
the Seventh Circuit's unanimous invalidation of those fees at the University of
Wisconsin on First Amendment grounds, what stands out initially is a dramatic
difference between the Justices and the Seventh Circuit panel [FN94] over whether
the judiciary can define and delimit the mission of higher education. An equally
dramatic difference emerges between the conclusion by the Justices here, as
contrasted with United States v. Virginia and the Seventh Circuit panel, that the
Court should defer to educators' professional judgments. These differences have
important potential bearing on the constitutionality of using a racial factor in
university admissions today.
The Seventh Circuit's 1998 ruling in University of Wisconsin, repudiating the
view that supporting an array of student groups with revenue from fees is an
important part of a University's educational mission, had contained what the
Chronicle of Higher Education described as "one of the most sweeping rebukes of
such fee policies ever issued by a federal court." [FN95]
The Seventh Circuit panel, comprised of Judges Manion, Bauer and Harlington Wood,
ruled that "forcing objecting students to fund private organizations which engage
in political and ideological activities violates the First Amendment." [FN96] They
maintained that the principle of "germaneness" as formulated and repeatedly
endorsed by the Supreme Court in cases such as Abood v. Detroit Board of Education,
[FN97] Keller v. State Bar of California, [FN98] and Lehnert v. Ferris Faculty
Association [FN99] governed and invalidated the constitutionality of the assessment
of the University of Wisconsin's mandatory student fee.
"Lehnert's three prong analysis is the test today," [FN100] the panel stressed,
analogizing the assessment and allocations of the student fee to assessment and
expenditure of union dues. The Lehnert analysis called for determination by the
reviewing court of whether the mandatory fee is germane to some otherwise
legitimate governmental scheme, whether the challenged expenditures are germane to
the government's asserted interest and whether the expenditures add significantly
to the burdening of free speech. "'Germaneness,"' the panel concluded, "cannot be
read so broadly as to justify the compelled funding of private organizations which
engage in political and ideological advocacy, activities and speech." [FN101]
Furthermore, "[t]he mere incantation of the rubric 'education' cannot overcome a
tactic, repugnant *725 to the Constitution, of requiring objecting students to fund
private political and ideological organizations." [FN102] The panel's summation of
its ruling that the Wisconsin mandatory student fee policy cannot constitutionally
stand was emphatic: Germaneness was for courts, not educators, to determine; and
"[f]unding of private organizations which engage in political and ideological
activities is not germane to a university's educational mission and even if it
were, there is no vital interest in compelled funding, and the burden on the
plaintiffs' First Amendment right to 'freedom of belief' outweighs any governmental
interest." [FN103]
Reversing unanimously, the Supreme Court ruled that the applicable Constitutional
test here was not germaneness, and that, in any event, germaneness of educational
programs to higher education goals was not for courts to decide. While the Abood
and Keller cases were held to identify the interests of the protesting students,
the Justices ruled that the means of implementing First Amendment protections
adopted in those decisions "are neither applicable nor workable in the context of
extra curricular student speech at a university." [FN104]
Justice Kennedy explained for the Court that in Abood and Keller the
constitutional rule the Justices applied "took the form of limiting the required
subsidy to speech germane to the purposes of the union or bar association. The
standard of germane speech as applied to student speech at a university is
unworkable, however, and gives insufficient protection both to the objecting
students and to the university program itself." [FN105]
In the public university setting, Kennedy continued, "the State undertakes to
stimulate the whole universe of speech and ideas." [FN106] In the program before
the Court, "[t]he speech the University seeks to encourage ... is distinguished not
by discernable limits but by its vast, unexplored bounds. To insist upon asking
what speech is germane would be contrary to the very goal the University seeks to
pursue. It is not for the Court to say what is or is not germane to the ideas to be
pursued in an institution of higher learning." [FN107]
Unlike the Seventh Circuit, the Justices deferred to the university's judgments
about the goals it seeks to pursue. Justice Kennedy stated:
The University may determine that its mission is well served if students have
the means to engage in dynamic discussions of philosophical, religious, scientific,
social, and political subjects in their extracurricular campus life outside the
lecture hall. If the University reaches this conclusion, it is entitled to impose a
mandatory fee to sustain an open dialogue to these ends. [FN108]
*726 The proper measure, for protecting students' First Amendment interests in
not being required to pay subsidies for the objectionable speech of others, Justice
Kennedy concluded, "is the requirement of viewpoint neutrality in the allocation of
funding support," [FN109] as set forth in the Court's Rosenberger decision. [FN110]
Needless to say, constitutional issues surrounding validity of the assessment and
expenditure of mandatory university student fees differ in key respects from those
surrounding the validity of university admissions programs and practices. The
relationship between university officials' discretion and the First Amendment is
central to the fee issue, whereas the relationship between university judgment and
both the First and Fourteenth Amendments is at the core of the affirmative action
issue. Major common components of these issues, nonetheless, are the nature and
scope of university discretion in making educational judgments and the degree of
deference courts accord such professional judgments.
There can, of course, be no certainty that the University of Texas and University
of Georgia decisions rejecting diversity in admissions as compelling will not
prevail in today's Supreme Court. Nor can it be certain that the Ninth Circuit's
explicit approval in the University of Washington case of race as a component of a
multi-factor, single-track university admissions program will pass ultimate
constitutional muster. But the readiness of the unanimous Justices in the Wisconsin
fees case to defer to the university's authority to define its mission and goals
and to disclaim the courts' competence to determine "what is or is not germane to
the ideas to be pursued in an institution of higher learning" renews a context for
a decision, evident in Powell's Bakke opinion and absent (except for Judge Wiener's
concurrence) in Hopwood v. Texas and Johnson v. Georgia, that can be construed
optimistically as an augury of acceptance.
This aura of deference to the university's self-determination of its goals and
implementing programs, as long as the asserted goals are empirically substantiated,
suggests strongly that the Supreme Court's ultimate approach to adjudicating the
affirmative action in university admissions issues will not simply replicate the
limits imposed in Croson and Adarand in contracting cases, as did Judge Smith in
Hopwood and Judge Edenfield in the University of Georgia case. One can anticipate
instead that, as in the Wisconsin fees *727 case and Powell's opinion in Bakke, due
recognition will be accorded the special status and goals of higher education and
the appropriateness of deference to empirically manifested professional judgments.
The views on affirmative action of Judge Wiener in Hopwood, Judges Scirica and
Sloviter in Taxman, Judge Posner in Wittmer, the Second Circuit majority in Brewer
and the unanimous Ninth Circuit panel in University of Washington add textual and
contextual support to the constitutional viability of Powell's Bakke rationale.
C. Conjecture About Litigation in Process: The University of Michigan As Testing
Ground
With the acerbic observation, "His timing was not great," Nicholas Lemann of the
New Yorker began his recent article about Lee Bollinger's ascension to the
presidency of the University of Michigan in 1997. [FN111] Several months into
Bollinger's tenure as president,
the university was hit with two lawsuits by white applicants who said they had
been rejected because of their race. These cases, which ... are likely to come
before the United States Supreme Court eventually, are an attempt to abolish
affirmative action in university admissions, not just at Michigan but nationally.
[FN112]
The starting point for evaluation of the constitutionality of Michigan's program
will, no doubt, be reexamination of Justice Powell's Bakke rulings and rationale.
To repeat, Justice Powell's key positions on constitutionally permissible
affirmative action were that:
• diversity in the student body of a university is a compelling state interest
that justifies a narrowly tailored, single-track admissions program utilizing
racial and ethnic classification in conjunction with multiple other factors
relevant to quality, aptitude and diversity in making decisions on admissions.
• as long as every applicant competes for admission with every other applicant
in the single-track system drawing upon multiple relevant admissions factors,
consideration of the racial or ethnic factors will be deemed non-facial
discrimination and will be upheld unless the challenger demonstrates that the
admissions program has a racially or ethnically discriminatory purpose.
• as long as the University does not establish a facially discriminatory
program and is not otherwise shown to intend to discriminate racially or ethnically
in its use of multiple admission factors that include race and ethnicity, courts
should defer to university officials' professional judgment about the objectives
and operations of their admissions program.
*728 What could derail Michigan's program constitutionally?
• rejection by the Court of Justice Powell's view that diversity of the student
body is a compelling state interest.
• insistence by the Court that the Croson and Adarand rulings on contracting
apply as well to university admissions, and hence, that a proven past record of
racial discrimination by the university must be found by an authorized government
entity in order to justify any use of a racial or ethnic classification.
• rejection by the Court of Justice Powell's distinction between facial and
non-facial racial discrimination.
• rejection by the Court of Justice Powell's views (and, arguably those of the
Court in University of Wisconsin v. Southworth) on judicial deference to the
professional judgment of university officials about the objectives and operations
of their programs.
In support of Justice Powell's reasoning and conclusions in Bakke, and with
invocations of pertinent precedent and empirical evidence, the Michigan case
includes carefully crafted amicus briefs from educational and business
organizations such as the Association of American Law Schools (AALS) and General
Motors (GM), and Expert Reports from individual educational experts such as
Vanderbilt Law Dean Kent Syverud, former Harvard President Derek Bok and Michigan
Psychology Professor Patricia Gurin.
The briefs and Expert Reports endeavor to pierce the assumption, declared most
recently by Judge Edenfield in Johnson v. Georgia, that including race as a factor
in university admissions depends on stereotyping and relies on "the crude, and
dangerous, proxy of race for ideological diversity." [FN113] The amicus brief filed
by the AALS, the National Association of State Universities and Land Grant Colleges
and the Committee on Institutional Cooperation makes clear that pursuit of a
racially and ethnically diverse student body
is not based on the assumption that individuals who share a common racial or
ethnic background will also share common viewpoints .... Rather, each individual
member of such a group will have unique perspectives and the range of these unique
perspectives will be broader -- and the educational experience of all students
correspondingly richer-- if individuals with diverse backgrounds are included in
the composition of the student body. [FN114]
The brief cites Sweatt v. Painter, [FN115] the Supreme Court's 1950 invalidation
of racial segregation at the University of Texas Law School, for the proposition
that "[t]he law school ... cannot be effective in isolation from the individuals
*729 and institutions with which the law interacts." [FN116] The AALS brief also
invokes the Supreme Court's language in San Antonio School District v. Rodriguez
[FN117] emphasizing the court's "lack of specialized knowledge and experience"
[FN118] in educational policy and maintaining that "the judiciary is well advised
to refrain from imposing on the States inflexible constitutional restraints"
regarding educational policy. [FN119]
The General Motors amicus brief--in what may well contain the most detailed
rationale and data ever presented by a major corporate or business entity in
support of affirmative action in educational admissions--stresses its need for
personnel skilled in dealing with multiple races, ethnic groups and cultures and
maintains that "diversity throughout all the ranks of a company augments both
efficiency and profitability." [FN120] Striving for a work environment that fosters
"idea flow,"which the brief describes as "an interactive process of creative
brainstorming unhindered by titles and positions," GM reports that idea flow
"cannot be achieved across barriers of racial and cultural discomfort or among team
members who are unable to accept diverse views." [FN121] The brief reasons "in sum"
that
the graduates whom businesses recruit from top academic institutions, such as
the University of Michigan, to serve as managers and professionals will shape the
corporate cultures and reputations for diversity of those businesses in the years
to come. Graduates who lack sensitivity to and understanding of perspectives
influenced by race will be ill-equipped to meet the fundamental challenge of
attracting, retaining, and managing the human capital that businesses will need to
survive. [FN122]
*730 The Expert Report of Dean Kent Syverud adds to the empirical case for racial
diversity in the classroom through his experiences as a teacher in a diverse
classroom environment. "Common assumptions about viewpoints of different races are
constantly confronted by frank discussion," he summarizes, "that at times confirms
and at times profoundly confounds those assumptions." [FN123] Syverud's correlation
of racial and ethnic diversity with positive educational experiences is reinforced
by findings of the Harvard Civil Rights Project and Gallup Poll that 89% of Harvard
Law students and 91% of Michigan Law students in 1998 and 1999 believed that the
racial diversity of their schools affected their education positively, particularly
through enhanced cross cultural understanding and improved opportunities for
cognitive development. [FN124]
A particularly salient contribution to the University of Michigan's case by
former Harvard President Derek Bok is his refutation of affirmative action
challengers' presumption that excellent grades and test scores are sufficient in
themselves to establish a virtual entitlement to admission. Not so, Bok testifies.
In deciding which individuals to admit from among those who have very strong
qualifications,
a school does not start from the premise that any applicant has a "right" to a
place in a college or university. Instead, the starting premise is that a school
has an obligation to make the best possible use of the limited number of places in
each entering class so as to advance as effectively as possible the broad purposes
the school seeks to serve. [FN125]
Hence, the task of an admissions office
is not simply to decide which applicants offer the strongest credentials as
separate candidates ...; the task, rather, is to assemble a total class of
students, all of whom will possess the basic qualifications, but who will also
represent, in their totality, an interesting and diverse amalgam of individuals who
will contribute ... to the quality and vitality of the overall educational
environment. [FN126]
*731 Professional judgment about the connection between the attributes of
individual applicants and the academic priorities of the institution determines the
particular diversity characteristics that the school chooses to value. [FN127]
Further empirical support for positive educational consequences of diversity in
admissions runs throughout the comprehensive Expert Report by Professor Patricia
Gurin of the University of Michigan's Psychology Department and Institute for
Social Research. Her professional credentials and social- scientific research lend
authority to her findings. [FN128] Particularly pertinent to this case are her
projects showing that the degree to which students of color have been represented
in the student body has had positive educational and societal effects, including
living and working in diverse settings after college. [FN129]
Overall, the materials thus far introduced in Gratz v. Bollinger [FN130] and
Grutter v. Bollinger [FN131] on behalf of the University of Michigan offer the most
comprehensive, systematic documentation of professional experience, educational
expertise and research findings yet assembled in support of affirmative action in
university admissions. Central in the university's approach has been recognition
that its opponents have formidable legal skills and arguments that have prevailed
in other institutional settings. In any event, Michigan has mobilized comprehensive
professional resources to leave no presumption or interpretation by its opponents
about legal precedents, policies or research uncorrected or unchallenged.
*732 D. The District Court's Decision on Undergraduate Admissions in Gratz v.
Bollinger
Judge Patrick Duggan of the U.S. District Court, announcing his decision in
Gratz v. Bollinger [FN132] on December 14, 2000, rejected the Hopwood panel's
reasoning and echoed the conclusion of the Ninth Circuit in the University of
Washington case in upholding the constitutionality of the University of Michigan's
current affirmative action program instituted in 1999. Judge Duggan invalidated
Michigan's program that had been in operation from 1995 through 1998, maintaining
that the program during those years veered from Justice Powell's requirement in
Bakke of a competitive single-track for all admissions decisions.
While this Court does not necessarily agree with the Ninth Circuit's conclusion
that Justice Powell's "analysis is the narrowest footing upon which a raceconscious decision making process could stand," this court reaches the same
ultimate conclusion of the Ninth Circuit, i.e., that under Bakke, diversity
constitutes a compelling governmental interest in the context of higher education
justifying the use of race as one factor in the admissions process, albeit through
somewhat different reasoning. [FN133]
Critical of the Hopwood panel's conclusions because "none of the cases relied
upon by the Fifth Circuit involved the issue of whether the educational benefits
that flow from a racially and ethnically diverse student body can ever constitute a
compelling governmental interest in the context of higher education," [FN134] Judge
Duggan agreed explicitly with Judge Wiener's position in his concurring opinion in
Hopwood that "the public graduate or professional school context is distinguishable
from the employment, minority business set-aside, and redistricting contexts in
that, unlike the other cited contexts, the higher education context implicates 'the
uneasy marriage of the First and Fourteenth Amendments."' [FN135]
Duggan cited and relied upon the "solid evidence regarding the educational
benefits that flow from a racially and ethnically diverse student body" contained
in the amicus briefs and Expert Reports filed in Michigan's behalf. [FN136] He
maintained that the only brief rebutting Michigan's assertions about educational
benefits from a diverse student body came from the National Association of Scholars
(NAS) in support of the view that "intellectual *733 diversity bears no obvious or
necessary relationships to racial diversity." [FN137] Categorizing the NAS
arguments as addressed to whether the means employed are narrowly tailored rather
than whether educational benefits that flow fromdiversity constitute a compelling
interest, Judge Duggan concluded that "[t]his Court is persuaded, based upon the
record before it, that a racially and ethnically diverse student body produces
significant educational benefits such that diversity, in the context of higher
education, constitutes a compelling interest under strict scrutiny." [FN138]
As to the District Court's distinction between the constitutionality of the preand post-1999 admissions programs, Judge Duggan maintained that the earlier program
sought to admit a predetermined number of minority students through what was, in
operation, a two-track system, whereas the current program -- allowing minority
applicants twenty points on a 150 point scale for admission -- does not establish a
quota or double track system and does not set seats aside or insulate minority
applicants from competitive review with all other applicants. [FN139] Such use of
race operates as "nothing more than the 'plus' spoken of with approval by Justice
Powell in Bakke." [FN140]
E. The District Court's Decision on Law School Admissions in Grutter v. Bollinger
Contrary to his colleague Judge Duggan, Judge Bernard Friedman of the United
States District Court, announcing his decision in Grutter v. Bollinger [FN141] on
March 27, 2001, endorsed the Hopwood panel's reasoning to conclude that the
admissions program is unconstitutional. Judge Friedman ruled that diversity is not
a compelling interest and that the University of Michigan's program, in any event,
is not narrowly tailored to meet constitutional requirements. There is "no
principled difference," he maintained, between reserving a fixed number of seats
for minority students, which the Supreme Court rejected in Bakke, and utilizing a
fixed minimum percentage figure for minority students, which he found the law
school to have done. He construed the evidence in the case to show "that race is
not, as defendants have argued, merely one factor which is considered among many
others in the admissions process. Rather, the evidence indisputably demonstrates
that the law school places a very heavy emphasis on an applicant's race in deciding
whether to accept or reject." [FN142]
*734 Countering the argument that a race conscious admission policy is necessary
to prevent "resegregation," Judge Friedman insisted that "[i]f undesirable
consequences are likely or even certain to occur, the answer is not to retain the
unconstitutional racial classification but to search for lawful solutions, ones
that treat all people equally and do not use race as a factor." [FN143]
To avoid such "undesirable consequences," he conjectured, "[o]ne such solution
may be to relax, or even eliminate, reliance on the LSAT." [FN144] He challenged
defense counsel's assertion that the Association of American Law Schools and the
American Bar Association will not accredit law schools which do not require
applicants to submit a Law School Aptitude Test score. Neither accrediting
organization requires law schools to require applicants to take the LSAT, he
insisted. "While the ABA does require law schools to 'require all applicants to
take an acceptable test,' such as the LSAT, it does not require that law schools
give the test results any particular weight." [FN145]
Another solution to prevent "resegregation," he urged, "may be for the law school
to relax its reliance on undergraduate GPA." [FN146] So long as the law school
acknowledges that obstacles individual applicants have had to overcome "may
confront an applicant of any race, consideration might be given to such things as
growing up in difficult family circumstances, attending underfunded public schools,
or learning English as a second language." [FN147]
Reduction or elimination of preferences now given to sons and daughters of
University of Michigan alumni could also avoid perpetuating past imbalances that
have no connection to merit, Judge Friedman asserted. "Whatever solution the law
school elects to pursue, it must be race neutral." [FN148] Judge Friedman did not
explain how his mandating of a "race neutral" solution comports with Section V-C of
the Bakke court's majority ruling that "so much of the judgment as enjoins
petitioner from any consideration of the race of any applicant must be reversed."
[FN149]
Needless to say, the University of Michigan is appealing Judge Friedman's ruling.
Whether the University of Michigan ultimately wins or loses, both President
Bollinger and his opponents from the Center for Individual Rights warrant
appreciation for having spared no effort in explaining and justifying their
positions on the objectives and interests of higher education in affirmative
action. I believe that renewed probing of Justice Powell's Bakke opinion, together
with careful appraisal of the wide range of post-Bakke judicial opinions on this
and related themes capped by Judge Duggan's approval of Michigan's undergraduate
program, will -- in the context of reaffirmation by the Supreme Court of deference
to educators' judgment in the Wisconsin fees case -- raise the odds in favor of
Michigan's winning.
[FNa1]. Nathaniel L. Nathanson Professor of Law, Northwestern University. My
research assistants Ian Logan and Andrew Matthews contributed valuable initiatives
and insights to the preparation of the article.
[FN1]. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
[FN2]. City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
[FN3]. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
[FN4]. Taxman v. Board of Educ. of Piscataway, 91 F.3d 1547 (3d Cir. 1996), cert.
granted, 521 U.S. 1117 (1997), cert. dismissed, 522 U.S. 1010 (1997).
[FN5]. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).
[FN6]. "We agree with the plaintiffs that any consideration of race or ethnicity
... for the purpose of achieving a diverse student body is not a compelling
interest under the Fourteenth Amendment." Id. at 944.
[FN7]. Mary Frances Berry, How Percentage Plans Keep Minority Students Out of
College, CHRON. HIGHER EDUC., Aug. 4, 2000, at A48.
Commissioner Berry added,
The Hopwood case in Texas, California's Proposition 209, and decisions by the
state regents are recent examples of legal challenges to affirmative action. State
University systems across the country should work toward creating affirmative
action policies that are narrowly tailored and can withstand possible legal
challenges. In response to lawsuits, states should be prepared to finance the
defense of such programs in court.
Id.
[FN8]. 438 U.S. 265, 320 (1978).
[FN9]. Id. at 324-25.
[FN10]. Id. at 307.
[FN11]. Id.
[FN12]. Id. at 309.
[FN13]. Id. at 318-19. This presumption of the university's "good faith" was an
element of Justice Powell's willingness to defer to professional judgments of
educators in the absence of facial discrimination. Indeed, Justice Powell's
classification of diversity as "compelling in the context of a university's
admission program," id. at 314, was an outgrowth of his view that "The freedom of a
university to make its own judgments as to education includes the selection of its
student body." Id. at 312. He emphasized that "a University must have wide
discretion in making the sensitive judgments as to who should be admitted" but
reminded us as well that "constitutional limitations affecting individual rights
may not be disregarded." Id. at 314. His references to the university's freedom and
wide discretion in making "its own judgments as to education" echoed his earlier
invocation of discretion and deference to professional judgment in cases like
Youngberg v. Romeo, 457 U.S. 307 (1982). In this case involving the substantive
rights of a retarded person under the Fourteenth Amendment, Justice Powell
maintained that the balancing of individual liberty interests against the relevant
state interests "cannot be left to the unguided discretion of a judge or jury." Id.
at 321. Instead, "[w]e emphasize that courts must show deference to the judgment
exercised by a qualified professional." Id. at 322.
[FN14]. 426 U.S. 229 (1976). Pertinent to the standards set forth are these
sections of Justice White's opinion: "[O]ur cases have not embraced the proposition
that a law or other official act, without regard to whether it reflects a racially
discriminatory purpose, is unconstitutional solely because it has a racially
disproportionate impact." Id. at 239.
"The school desegregation cases have also adhered to the basic equal protection
principle that the invidious quality of a law claimed to be racially discriminatory
must ultimately be traced to a racial discriminatory purpose." Id. at 240.
"This is not to say that the necessary discriminatory racial purpose must be
express or appear on the face of the statute, or that a law's disproportionate
impact is irrelevant in cases involving Constitution-based claims of racial
discrimination. A statute, otherwise neutral on its face, must not be applied so as
invidiously to discriminate on the basis of race." Id. at 241.
"Necessarily, an invidious discriminatory purpose may often be inferred from the
totality of the relevant facts, including the fact, if it is true, that the law
bears more heavily on one race than another." Id. at 242.
"Nevertheless, we have never held that a law, neutral on its face and serving
ends otherwise within the power of government to pursue, is invalid under the Equal
Protection Clause simply because it may affect a greater proportion of one race
than of another. Disproportionate impact is not irrelevant, but it is not the sole
touchstone of an invidious racial discrimination forbidden by the Constitution."
Id.
[FN15]. 429 U.S. 252 (1977). Essentially an echo of Washington v. Davis's doctrine,
the following language from the Arlington Heights opinion typifies its thrust: "Our
decision last Term in Washington v. Davis made it clear that official action will
not be held unconstitutional solely because it results in a racially
disproportionate impact." Id. at 264-65 (citation omitted).
"Proof of racially discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause." Id. at 265.
"Determining whether invidious discriminatory purpose was a motivating factor
demands a sensitive inquiry into such circumstantial and direct evidence of intent
as may be available." Id. at 266.
"Sometimes a clear pattern, unexplainable on grounds other than race, emerges
from the effect of the state action even when the governing legislation appears
neutral on its face." Id.
[FN16]. Bakke, 438 U.S. at 325.
[FN17]. Id. at 326 n.1.
[FN18]. Id. at 369.
[FN19]. 430 U.S. 188 (1977).
[FN20]. Id. at 193.
[FN21]. Smith v. University of Wash. Law Sch., 233 F.3d. 1188 (9th Cir. 2000).
[FN22]. Id. at 1200.
[FN23]. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 284
concurring).
[FN24]. Id. at 286.
(1986) (O'Connor, J.,
[FN25]. See Hopwood v. Texas, 78 F.3d 932, 945 (5th Cir. 1996).
[FN26]. Metro Broad., Inc. v. Federal Communications Comm'n, 497 U.S. 547, 612
(1990) (O'Connor, J., dissenting).
[FN27]. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).
[FN28]. 78 F.3d at 946.
[FN29]. See id. at 962 (Wiener, J., specially concurring).
[FN30]. Id.
[FN31]. Id. at 964. See also Judge Wiener's discussions of "Strict Scrutiny" and
"Is Diversity A Compelling Interest" at 963-65. He reads Justice O'Connor's opinion
in Adarand primarily as an acknowledgment that Bakke "left things unresolved" and
not "as an order to throw out Bakke-bath water, baby and all." Id. at 964 n.18.
[FN32]. Id. at 965 n.18.
[FN33]. Id. at 973 n.21.
[FN34]. 91 F. 3d 1547 (1996).
[FN35]. 91 F.3d at 1558.
[FN36]. See id. at 1561.
[FN37]. Id.
[FN38]. Id. at 1562 (quoting Bakke, 438 U.S. at 313).
[FN39]. Id.
[FN40]. Id. at 1562 n.13.
[FN41]. Id. at 1562.
[FN42]. Id. at 1567.
[FN43]. 91 F.3d at 1576 (Scirica, J., dissenting) (quoting Bakke, 438 U.S. at 313).
[FN44]. Id. (quoting Bakke, 438 U.S. at 312-13 n.48).
[FN45]. Id.
[FN46]. Id. at 1577.
[FN47]. 87 F. 3d 916 (7th Cir. 1996).
[FN48]. See id. at 919-20.
[FN49]. Id. at 920.
[FN50]. Id.
[FN51]. Id.
[FN52]. Defendants' experts
opined that the boot camp ... would not succeed in its mission of pacification
and reformation with as white a staff as it would have had if a black male had not
been appointed to one of the lieutenant slots. For them a security staff less than
6 percent black (4 out of 71), with no male black supervisor, would be
administering a program for a prison population almost 70 percent black in a prison
the staff of which is expected to treat the inmates with the same ... lack of
considerateness, that a marine sergeant treats recruits at Parris Island.
Id.
[FN53]. See id.
[FN54]. Id. at 918.
[FN55]. Id. at 919.
[FN56]. Brewer v. West Irondequoit Cent. Sch. Dist., 212 F.3d. 738 (2d Cir. 2000).
[FN57]. See id. at 744-45.
[FN58]. See id. at 747.
[FN59]. Wessmann v. Gittens, 160 F.3d 790, 795 (1st Cir. 1998).
[FN60]. McNamara v. City of Chicago, 138 F.3d 1219, 1222 (7th Cir. 1998).
[FN61]. Eisenberg v. Montgomery County Pub. Sch., 197 F.3d 123, 130 (4th Cir.1999).
The Fourth Circuit ruled that the challenged school transfer program was not
narrowly tailored because, inter alia, race was the only factor that affected the
decision on Jacob Eisenberg's transfer application and the Montgomery County
transfer plan did not allow every applicant to be eligible for every available
spot. The court ordered the school district to reconsider Jacob's application
without regard to race. See id. at 133-34.
[FN62]. Brewer, 212 F.3d at 748 (citing Hunter v. Regents of Univ. of Cal., 190
F.3d 1061 (9th Cir. 1999), cert denied 121 S.Ct. 186 (2000) (holding that
California had a compelling state interest justifying considerations of
race/ethnicity in operating a research oriented elementary school dedicated to
improving the quality of urban public schools and that such consideration was
narrowly tailored to serve a compelling interest)).
[FN63]. See Parent Ass'n of Andrew Jackson High Sch. v. Ambach, 598 F.2d 705 (2d
Cir. 1979) and 738 F.2d 574 (1984) (concluding the school authorities had a
compelling interest in combating de facto segregation, justifying a racial
classification to remedy that segregation in their schools).
[FN64]. Brewer, 212 F.3d at 756 (Miner, J., dissenting).
[FN65]. See id. at 757.
[FN66]. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 505 (1989).
[FN67]. 212 F.3d at 748. It is at least arguable that the Croson decision might not
require a proven history of discrimination when there is a "great enough"
statistical disparity between minority contractors who are eligible and those who
are contract recipients. See id. "If the statistical disparity between eligible
[minority contractors] and [minority contractor] membership were great enough, an
inference of discriminatory exclusion could arise. In such a case, the city would
have a compelling interest in preventing its tax dollars from assisting these
organizations in maintaining a racially segregated construction market." See 488
U.S. at 503.
[FN68]. 106 F. Supp. 2d 1362 (S.D. Ga. 2000).
[FN69]. Id. at 1368 (quoting Bakke, 438 U.S. 312).
[FN70]. Id.
[FN71]. Id. at 1371.
[FN72]. Id.
[FN73]. Bakke, 438 U.S. at 289.
[FN74]. Johnson, 106 F. Supp. 2d at 1374.
[FN75]. Id. at 1375.
[FN76]. Smith v. University of Wash. Law Sch., 233 F.3d. 1188 (9th Cir. 2000).
[FN77]. Id. at 1201.
[FN78]. Id. at 1200 n.9.
[FN79]. 521 U.S. 203, 237 (1997).
[FN80]. Smith, 233 F.3d at 1196.
[FN81]. Id. at 1200.
[FN82]. Id.
[FN83]. Agostini, 521 U.S. at 237.
[FN84]. Smith, 233 F.3d at 1200.
[FN85]. Id. at 1200-01 (footnote omitted).
[FN86]. Consider Croson; Adarand; the various Third Circuit opinions and aborted
certiorari in Taxman; the contrasting opinions about Bakke of Judge Smith and Judge
Wiener in Hopwood; the ranges of interpretation of affirmative action precedents by
the Seventh Circuit in Wittmer and by the Second Circuit in Brewer; Judge
Edenfield's rejection of Powell's Bakke opinion in Johnson v. Georgia; and the
Ninth Circuit's acceptance of Powell's rationale in Smith v. Washington.
[FN87]. United States v. Virginia, 518 U.S. 515 (1996).
[FN88]. Board of Regents of Univ. of Wis. v. Southworth, 120 S.Ct. 1346
(2000).
[FN89]. Virginia, 518 U.S. at 533.
[FN90]. Id. at 535.
[FN91]. Id. at 540.
[FN92]. Id. at 539.
[FN93]. Id. at 542-43 (footnote and citation omitted).
[FN94]. Southworth v. Grebe, 151 F.3d 717 (7th Cir. 1998).
[FN95]. Peter Schmidt, Supreme Court Unanimously Endorses Constitutionality of
Mandatory Fees, CHRON. HIGHER EDUC., Mar. 31, 2000, at A29.
[FN96]. Southworth, 151 F.3d at 718.
[FN97]. 431 U.S. 209 (1977).
[FN98]. 496 U.S. 1 (1990).
[FN99]. 500 U.S. 507 (1991).
[FN100]. Southworth, 151 F.3d at 724.
[FN101]. Id.
[FN102]. Id. at 725.
[FN103]. Id. at 735.
[FN104]. Southworth, 120 S.Ct. at 1354.
[FN105]. Id. at 1355.
[FN106]. Id.
[FN107]. Id.
[FN108]. Id. at 1356.
[FN109]. Id.
[FN110]. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833
(1995). In a spoken ruling from the bench on December 8, 2000, United States
District Court Judge John Shabaz ordered the University of Wisconsin to change what
he saw as viewpoint bias in student government distribution of funds to campus
groups. On March 15, 2001, Judge Shabaz rejected changes proposed by the University
to correct the faults he had found, maintaining that the changes do not prevent
viewpoint discrimination. "Differentials in funding amounts have no objective
root," he ruled, "but reflect only the discretionary judgment of the student
government." Kristin Wieben, Board of Regents Appeals Seg-Fees Ruling, BADGER
HERALD, Mar. 26, 2001, available at http://
www.badgerherald.com/content/2001/spring/news/032601news1.shtml (citing Southworth
v. Board of Regents of the Univ. of Wis., Order 96-C-02992, Mar. 26, 2001 (W.D.
Wis.)).
[FN111]. Nicholas Lemann, The Empathy Defense: Can the University of Michigan Save
Affirmative Action?, NEW YORKER, Dec. 18, 2000, at 46.
[FN112]. Id. Lemann analyzes concisely the background, issues, players and
strategies involved in the Michigan litigation.
[FN113]. Johnson v. Board of Regents of the Univ. Sys. of Ga., 106 F. Supp. 2d
1362, 1374 (S.D. Ga. 2000).
[FN114]. Amicus Brief of AALS et al. at 5-6, Grutter v. Bollinger, 16 F. Supp. 2d
797 (E.D. Mich. 1998) (No. 97-75928) and Gratz v. Bollinger, 122 F. Supp 2d 811
(E.D. Mich. 2000) (No. 97-75231), available at www.aals.org/aalspub.html (last
visited Mar. 2, 2001).
[FN115]. 339 U.S. 629 (1950).
[FN116]. Id. at 634. The Court added, "Few students and no one who has practiced
law would choose to study in an academic vacuum, removed from the interplay of
ideas and the exchange of views with which the law is concerned." Id.
[FN117]. 411 U.S. 1 (1973).
[FN118]. Id. at 42.
[FN119]. Id. at 43.
[FN120]. Amicus Brief of GM 28, Gratz v. Bollinger, 122 F. Supp 2d 811 (E.D. Mich.
2000) (No. 97-75231), available at http://www.gm.com/company/news_ events/press_
releases/uofmbrief.doc (last visited Mar. 2, 2001).
[FN121]. Id. at 15. The GM brief adds:
A corporate management comprising individuals who have never before experienced
the challenges of interracial and cross-cultural interactions that they will
confront in the workplace poses great risks to efficiency and productivity. First,
low-level unease between managers and employees of different races, ethnicities,
and cultures may impede productivity and prevent the formation of the close working
relationships that make business "hum." Second, managers unskilled in considering
diverse perspectives may fail to recognize excellent ideas when they come from
unexpected sources. A lack of exposure to persons of different races and
ethnicities may also result in economically inefficient, and improper, hiring and
promotion decisions, influenced by false stereotypes rather than an objective
assessment of true merit. Such decisions not only destroy morale, but deprive the
business of the benefit of excellent workers' untapped potential.
Id. at 15.
[FN122]. Id. at 16.
[FN123]. Expert Report of Kent Syverud, Gratz v. Bollinger, 122 F. Supp 2d 811
(E.D. Mich. 2000) (No. 97-75231), available at www.umich.edu/°
urel/admissions/legal/expert/syverud.html (last updated Jan. 15, 2001).
[FN124]. Gary Orfield & Dean Whitla, Diversity and Legal Education: Student
Experiences in Leading Law Schools, Harvard University Civil Rights Project (1999),
available at http://
www.law.harvard.edu/groups/civilrights/publications/bwsurvey.html (last visited
Feb. 8, 2001).
[FN125]. Expert Report of Derek Bok at 3, Grutter v. Bollinger, 16 F. Supp. 2d 797
(E.D. Mich. 1998) (No. 97-75928), available at http:// www.umich.edu/°
urel/admissions/legal/expert/bok.html (last updated Jan. 15, 2001).
[FN126]. Id. at 4. Bok repeats this point in returning later to "the much
misunderstood concept of merit" in college admissions.
Many people suppose that all students with especially high grades and test
scores "deserve" to be admitted and that it is unfair to reject them in favor of
minority applicants with lower grades and test scores. But selective colleges do
not automatically offer admission as a reward for past performance to anyone. Nor
should they. For any institution, choosing fairly, "on the merits," means selecting
applicants by criteria that are reasonably related to the purposes of the
organization. For colleges and universities, this means choosing academically
qualified applicants who not only give promise of doing well academically, but who
also can enlarge the understanding of other students and contribute after
graduation to their professions and communities.
Id. at 6.
[FN127]. See id.
[FN128]. Professor Gurin's Expert Report draws upon her thirty-four years of
experience in social psychological research and teaching on themes of intergroup
relations. Author of eight books and monographs and numerous articles dealing with
relationships between group identification and the personal and social outcomes of
members of racial, ethnic, gender, age, and social class groups, she has probed
student experiences with diversity intensively and extensively. In addition, she
has chaired the University of Michigan's Department of Psychology and has served as
the university's Interim Dean of the College of Literature, Sciences and the Arts.
[FN129]. Expert Report of Patricia Gurin, Grutter v. Bollinger, 16 F. Supp. 2d 797
(E.D. Mich. 1998) (No. 97-75928) and Gratz v. Bollinger, 122 F. Supp 2d 811 (E.D.
Mich. 2000) (No. 97-75231), available at http:// www.umich.edu/°
urel/admissions/legal/expert/gurintoc. html. Plaintiffs in the Michigan litigation
dispute Gurin's reasons for why students who attend diverse schools later settle in
diverse communities. Stephan Thernstrom (co-author of AMERICA IN BLACK AND WHITE
(1997), which argues against racial preference in college admissions) has, for
example, cautioned against interpreting basic constitutional principles "on
fragile, small-scale social science." He maintains that the dynamic of settlement
in diverse communities may merely be a function of many students settling close to
home after their college years. See Jacques Steinberg, Defending Affirmative Action
With Social Science, N.Y. TIMES, Dec. 17, 2000, at 29.
[FN130]. 122 F. Supp. 2d 811 (E.D. Mich. 2000).
[FN131]. 16 F. Supp. 2d 797 (E.D. Mich. 2000).
[FN132]. 122 F. Supp. 2d 811 (E.D. Mich. 2000).
[FN133]. Id. at 820. In explanation of "his somewhat different reasoning," Judge
Duggan said "Recognizing that neither the Supreme Court nor the Sixth Circuit have
definitively held that diversity can never be a compelling interest under strict
scrutiny, this Court is satisfied that the University's argument remains viable."
Id. at 820 n.9.
[FN134]. Id. at 821.
[FN135]. Id. (citing Hopwood v. Texas, 78 F.3d 932, 965 n.21 (5th Cir. 1996)).
[FN136]. Id. at 822. Judge Duggan cited in particular research findings of
Professor Gurin that students experiencing the most diversity "showed the greatest
engagement in active thinking processes ... and growth in intellectual and academic
skills." Id.
[FN137]. National Association of Scholars brief at 3, Gratz v. Bollinger, 122 F.
Supp. 2d 811 (E.D. Mich. 2000) (No. 97-95231), available at http://
www.nas.org/reports/gratz_amicus/gratz_amicus.pdf (last visited Mar. 2, 2001).
[FN138]. Id. at 824.
[FN139]. See id. at 827. Other point awards in the
addition to those for academic records and grades,
socioeconomic status, 20 points for athletes, five
six points for geographic factors, four points for
points for an outstanding essay.
current admissions program, in
include 20 points for
points for leadership skills,
alumni relationship and three
[FN140]. Id. at 828.
[FN141]. No. 97-CV-75928-DT, Slip (E.D. Mich. Mar. 27, 2001), available at
http://www.umich.edu/° urel/admissions/legal/ (last visited Apr. 2, 2001).
[FN142]. See slip op. at 31.
[FN143]. Id. at 85.
[FN144]. Id.
[FN145]. Id. at 86-87.
[FN146]. Id. at 87.
[FN147]. Id.
[FN148]. Id. at 88.
[FN149]. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 320 (1978).
END OF DOCUMENT