The Supreme Court, Affirmative Action, and Higher Education

Higher education will feel the ripples of the summer’s ruling on affirmative action.

By Robert O’Neil

The American higher education community found a curious mix of good and bad news in the U.S. Supreme Court’s ruling last summer, in Parents Involved v. Seattle School District and Meredith v. Jefferson County Board of Education, about the use of race-based policies by public elementary and secondary schools. The good news: "Grutter lives!" Most observers agreed that the ruling reaffirmed the high court’s 2003 Grutter v. Bollinger decision that had sustained race-sensitive admissions policies at the University of Michigan Law School. The bad news: it was far from clear just what legal principles "lived," because of sharp splits among the justices and pervasive ambiguities in the earlier ruling. More bad news emerged as the summer wore on. Observers realized that the Court’s curb on the use of race-based desegregation remedies in public schools would almost certainly reduce the pools of well-prepared applicants from minority groups that have historically been underrepresented in higher education (mainly African American and Hispanic students). Fewer qualified minority applicants will mean that achieving and maintaining diversity on college and university campuses will be even more challenging. In the end, the most recent ruling left open a host of questions of great importance to faculty and academic administrators.

Good News

 We should begin with the good news. While striking down most race-based remedies designed to achieve racial balance in the nation’s public schools (specifically addressing plans used in Seattle and Louisville), the Supreme Court took pains to distinguish, and thus implicitly to preserve, its 2003 ruling in favor of the Michigan Law School’s race-inclusive preferential admissions policy. Both the context and the process were readily distinguishable, explained Chief Justice John Roberts for a plurality of the justices. Higher education should be viewed very differently from elementary and secondary school education, he noted, recalling Justice Sandra Day O’Connor’s declaration in the Michigan case that "in light of ‘the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.’" The Grutter opinion, noted the chief justice, had stressed "a specific type of broadbased diversity" and "the unique context of higher education"— special qualities either inapplicable to or disregarded by the Louisville and Seattle school boards in their desegregation plans.
Moreover, in the Grutter decision, the Court emphasized the "educational benefits" of diversity for the Michigan Law School, but no such emphasis emerged in the new ruling in relation to elementary and secondary schools.

While the Michigan Law School admissions policy considered preferential factors other than race, involved no numerical quotas, and assessed applicants individually, the same could not be said of the public school plans that the Court has now rejected. Although the Louisville and Seattle dissenters argued that the Grutter decision should control the public school cases, at least in spirit, that claim met with little sympathy from the Roberts plurality (or from Justice Anthony Kennedy, whose slightly more sympathetic concurrence produced a majority). However, despite these qualifications and a less-than-sweeping validation of the 2003 ruling, there seems little doubt that "Grutter lives" for higher education, notwithstanding the probable demise of most race-based elementary and secondary desegregation plans. But that, unfortunately, is about the extent of the genuinely good news.

A Closer Look

It’s easy to forget that Grutter’s companion case, brought by a rejected undergraduate applicant named Jennifer Gratz, reached a very different conclusion. In that decision, the justices invalidated (on both constitutional and statutory grounds) the University of Michigan’s racially preferential undergraduate admissions policy, which could not be seen as free of numerical targets or quotas, lacked individualized review of all files, and reflected diversity by race as the dominant, if not the exclusive, desideratum.

In fact, we need to recognize that the Supreme Court has never sustained the preferential use of race as an admissions criterion at the undergraduate level. Justice Lewis Powell’s 1978 opinion in Regents of the University of California v. Bakke—universally cited for a bare majority view that race may be considered in the admissions process—validated by inference a Harvard University plan that was not before the Court but had been cited by amicus curiae briefs and secondary sources. Justice Powell used those materials to contrast the University of California, Davis, School of Medicine plan (which the Bakke majority invalidated for its mechanistic use of race) with a more flexible and benign use of ethnicity that marked the Harvard approach. But it is vital to recall that no undergraduate plan was before the Court; the only time the justices have ruled on such a plan, in the Gratz case, they found it constitutionally deficient.

A pessimist might even infer that undergraduate admissions plans can never comfortably invoke Grutter—not only because of the immense practical difficulty of proving that the requisite "individualized consideration" has occurred, but also because Justice O’Connor spoke so enthusiastically about the contribution of a racially diverse student body to preparing students for direct entry into the learned professions—law and medicine. Yet so narrow a reading of Grutter would be unwarranted. We can locate some prerequisites that both the Grutter Court and the current justices saw as necessary for an admissions policy to be constitutional: the inclusion and application of preferential admissions criteria other than race; year-to-year numerical variations that would show that no quota or fixed target was operating; individualized rather than group consideration of applicants’ files; and some palpable link between racial diversity and the institution’s mission. Any race-inclusive plan lacking such elements would be in serious trouble.

Several other features of the Michigan Law School plan also clearly appealed to Justice O’Connor, but they may not be essential components of an acceptable admissions policy. She noted with approval, for example, the law faculty’s own recognition that the inclusive use of race in admissions should be limited in time; she went on to suggest, quite specifically, that such plans should expire within a generation or a quarter century. The Grutter case also seems to have raised doubts about the notion that a "critical mass" of minority students is necessary to ensure the success of an institution or of the students themselves, even though that notion seems to have been approved as part of the Michigan Law School’s declared mission. Because of a possible implication that "critical mass" is a code for "quota," a September 2007 policy paper issued by the American Council on Education (ACE) cautioned that "institutions should use the concept of ‘critical mass’ carefully and base it on the educational benefits [of] enrolling a diverse student body." Moreover, Justice O’Connor strongly implied that any such race-inclusive policy must reflect a faculty’s "educational judgment," to which courts would appropriately defer. As a practical matter, it seems unlikely that any race-centered admissions policy would be established and thought capable of withstanding court challenge without such an underlying educational premise.
Perhaps the most perplexing of the factors that lead to our resounding "maybe" judgment of the recent Court decision is the role of nonracial alternatives designed to achieve the same goal. Grutter declared that institutions must give "serious, goodfaith consideration [to] workable race-neutral alternatives that will achieve the diversity they seek." Yet in his 2007 concurrence, Justice Kennedy noted that broad-based race-conscious programs that invoke various nonracial desiderata might not "demand strict scrutiny to be found permissible"—a conclusion with which the four dissenters would undoubtedly concur.

Finally, there is more than a hint that race-inclusive policies must demonstrate results consistent with their goals; the ACE paper emphasized that, while this element "is not explicitly demanded . . . the implication of the Court’s reasoning is that results matter" and that those results probably have to be more than minimal. Justice O’Connor in Grutter noted with clear approval that "these benefits [of diversity in the college student body] are not theoretical, but real." This expectation gains added force from the Court’s emphasis in the Seattle and Louisville ruling on continuing review of diversity-driven plans, including regular balancing of burdens and benefits.

Current Considerations

What, then, should a conscientious academic administrator or admissions committee member do in such a confusing (and evolving) legal environment?

The first, and perhaps easiest, area to address is admissions policies as such. The "musts" or imperatives imposed by the Supreme Court are, of course, indispensable for any institution that wishes its race-inclusive admissions policy to survive legal challenge. Quotas must be avoided, individual applicants must be individually appraised to the greatest possible extent, factors other than race must be articulated and consistently applied, and educational benefits as well as educational judgments must form the core of any such policy.

Clearly, many race-inclusive university admissions programs were carefully reviewed, and some were substantially modified, immediately after Grutter. That process will continue, and most likely will intensify, because of the Supreme Court’s reaffirmation of the Grutter principles four years later. More vigorous action may now be warranted; former ACE general counsel Sheldon Steinbach warned, right after the Louisville and Seattle ruling, that the initial post-Grutter modifications may not have been sufficient to withstand future challenges, even though technically the legal landscape has not changed.

The suggestions in Justice O’Connor’s Grutter opinion surely could be helpful in shaping admissions policies; they could be even more beneficial to a legal defense in the event of court challenge to admissions policies. Happily, incorporating the elements that Justice O’Connor deemed merely desirable but not essential should be easier than meeting the "musts." Establishing the link between racial sensitivity and institutional mission should not be difficult, nor should periodic and conscientious assessment of the impact of such a policy. The hardest of the imponderables may be that of time limitation: it is not clear that even Justice O’Connor—much less the more sympathetic justices who joined her in validating the Michigan Law School program—would really insist that race-inclusive policies cease to exist after 2028. Nonetheless, to assess the impact of any such program, one would have to consider the length of time such measures are likely to be needed and to remain in force. There is a strong argument, however, that Justice O’Connor’s call for flexibility and the avoidance of quotas would militate against setting a precise date by which it will be no longer vital to consider race to achieve and maintain diversity.

The next thing to keep in mind is that we need deal only with issues that have actually been litigated and have been the focus of definitive court rulings. A report issued by the Civil Rights Project soon after the 2007 decision noted the tendency of many colleges and universities to overreact to less than favorable judgments. Such a caution is wise and timely. Questions will undoubtedly arise about the legality of financial aid, minority outreach and counseling, and a host of other university programs designed to enhance diversity.

Nevertheless, some universities may believe that a distinct and different case could be made for more explicit use of race in such analogous areas. An institution might assume that the Court’s deep concern about race-driven admissions decisions at a highly selective institution does not necessarily— or even logically—carry over to financial aid and other benefits. Every reasonable effort should be made to avoid the understandable tendency to read court rulings on one particular facet of racial sensitivity as though they had broadly banned "affirmative action" in all aspects. Each of these issues will probably have its own day in court; until that day comes, prejudgment is unnecessary.

Bad News

There is another dimension to the recent ruling—one that also comes under the heading of bad news for higher education. While many observers were still celebrating the survival of Grutter, others in the higher education community sounded a more somber note. Gary Orfield, a professor at the University of California, Los Angeles, and codirector of the Civil Rights Project, and Erica Frankenburg and Liliana M. Garces, both research assistants at the Civil Rights Project, noted with alarm in Inside Higher Ed after the Seattle and Louisville ruling that "the dike protecting affirmative action has held but the river that brings diverse groups of students to colleges may be drying up as a result of the latest decisions." The pool of well-prepared minority high school graduates is shrinking, and the most selective institutions will be competing for them at an ever more vigorous pace. Longtime civil rights advocate Derek Bell made a similar point in even more ominous tones: "It is time," he wrote in the Chronicle of Higher Education, "to acknowledge that racial integration as the primary vehicle for providing effective schooling for black and Latino children has run its course."

Bell’s was an urgent manifesto to his university colleagues: actively support and enhance secondary school programs and after-school initiatives that effectively reach minority youths—they now offer the last, best hope of sustaining an applicant pool to which Grutter-based racial sensitivity might apply. Otherwise, higher education’s apparent victory in the Louisville and Seattle school cases will turn out to be Pyrrhic at best.

Cause for Hope

A final and far more hopeful dimension of the recent decisions has been almost wholly neglected: how valuable might the Roberts Court’s continued deference to the special character of higher education prove to be in other settings?

Nice words from the Supreme Court are, of course, hardly new for the American academic community. Fifty years ago in Sweezy v. New Hampshire, the first major academic freedom ruling, the justices clearly recognized the distinctive case for protecting free expression and inquiry on the college campus. A decade later, Justice William Brennan gave the strongest possible role to those liberties in striking down the New York State loyalty oath. The high court’s distinctive commitment to academic freedom has proved useful in other contexts—for example, in suggesting that university-based research deserves special protection, and differentiating for religious freedom purposes between elementary and secondary schools and universities. Such references are useful, but they turn out to have less practical import than might have been expected.

It is in admissions, however, that the special nature of universities may have garnered the most useful recognition. As far back as 1978, explaining in the Bakke case why he would validate race-sensitive admissions policies like those at Harvard, Justice Powell spoke eloquently of the value of academic freedom. Such recognition was the more welcome because it was in no way essential to Powell’s disposition of the case. Yet one sensed that a judge of scholarly temperament, quite familiar with both Harvard and the universities of his native Virginia, seized an opportunity to convey his high confidence in the governance of faculties and academic institutions. "Academic freedom," he proclaimed, "though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body." Even to those observers who hoped for at least a split ruling of the sort that Bakke provided, such an explicit and profound encomium for academic freedom was beyond reasonable expectation.

Justice O’Connor’s validation of race-inclusive policy a quarter century later in the University of Michigan admissions litigation not only reaffirmed but enhanced Justice Powell’s analysis. She was driven in substantial part by a high degree of judicial deference to such an "educational judgment" as well as by "the expansive freedoms of speech and thought associated with the university environment," leading to the conclusion that "universities occupy a special niche in our constitutional tradition."

One might well have expected that Justice O’Connor’s retirement would end such support for academic freedom and free inquiry. Chief Justice Roberts’s reaffirmation was the more surprising, then, because Roberts quoted the key language from Grutter and used it in the Seattle and Louisville cases, which lacked any of those qualities that warranted special treatment in "the unique context of higher education." The contrast between secondary and postsecondary education could easily have been explained without any explicit reference to academic freedom and free inquiry in the university setting. Perhaps we should simply be thankful for small favors; but, as we look at the situation as a whole, we may well conclude that we have been left with some that are not so small at all.

Robert O’Neil is professor emeritus of law at the University of Virginia and director of the Thomas Jefferson Center for the Protection of Free Expression. He chaired the AAUP’s Committee A on Academic Freedom and Tenure from 1992 to 1999 and currently chairs the Special Committee on Academic Freedom and National Security in a Time of Crisis.

Reprinted from Academe: Bulletin of the American Association of University Professors (vol. 94, no. 1).

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