Court Test for College Race Policy

The Supreme Court announced Monday it will decide whether the nation’s colleges and universities can continue to use affirmative action in choosing new students, marking the first time the court has revisited the issue since the Bakke decision in 1978.

The justices took up two appeals from white applicants who were rejected by the University of Michigan and its law school, despite their strong qualifications.

If the high court were to outlaw the explicit use of race in college admissions, the ruling could have broad impact at private universities, such as USC and Stanford, as well as state colleges.

Federal education law forbids race discrimination in colleges that receive federal funds, and lawyers say discrimination that violates the equal-protection standard also violates the federal education law.

“What they decide in this case will apply to private institutions as well,” said Sheldon Steinbach, general counsel for the American Council on Education, the Washington lobbying group for higher education.

In one of the University of Michigan cases, Jennifer Gratz, a white high school senior with a 3.8 grade-point average, was turned away by the Ann Arbor campus in 1995. She blamed her rejection on the preferences given to black and Latino applicants.

She and another woman, Barbara Grutter, who was rejected by the law school, became the lead plaintiffs in lawsuits that say “racial preferences in student admissions” violate the Constitution’s guarantee of the equal protection of the laws.

University officials admit they give a decided edge to minority applicants, but they say their affirmative action policy is needed to ensure racial diversity.

“Now is not the time to turn back the clock,” said University of Michigan President Mary Sue Coleman. “Race still matters in our society.” A ruling rejecting the use of affirmative action “could result in the immediate resegregation of our nation’s top colleges and universities.”

Affirmative action has been under attack for more than a decade in the courts and in states that use the ballot box to decide major controversies.

Voters in California and Washington approved measures that abolish official race-based preferences in state programs, including the universities. Meanwhile, federal courts in Texas and Georgia have struck down the use of affirmative action in college admissions.

Since 1989, the Supreme Court has rejected affirmative action in a series of settings, but it has done so by 5-to-4 votes. For example, the court said cities cannot set aside some of their public contracts for black and Latino entrepreneurs. It also rejected race-based preferences in federal contracts and struck down “racial gerrymandering” by state legislatures.

Four conservatives -- Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas -- have said repeatedly that officials may not use race as a decision-making factor.

Justice Sandra Day O’Connor, who has joined them in all the key rulings, has refused to go along with the clear, strict standard that prohibits all use of race. She has said, for example, that officials can favor black applicants to remedy clear, past discrimination against blacks. In one such case, the court upheld hiring and promotion quotas for black officers in the Alabama state police because of the department’s long history of blatant discrimination.

But O’Connor has not said whether she would endorse the use of a student’s race as a “plus” factor in college admissions.

In 1978, Justice Lewis F. Powell Jr., later to be O’Connor’s closest friend and mentor at the court, set forth the “plus” factor standard in the case of Allan Bakke, a well-qualified white applicant to the UC Davis Medical School. Bakke alleged in a lawsuit that he was rejected because a preference was given to black and Latino applicants. He won in a 5-4 decision that said the medical school had maintained an illegal quota by reserving 16 of its 100 slots for minorities.

Powell’s “plus” factor, laid out in a separate opinion, said that colleges may not use quotas or treat black and white students differently because of their race. However, admission officers can take a student’s race into account “in the interest of diversity,” Powell wrote. The Powell standard in the Bakke case has remained the law ever since.

Theodore M. Shaw, counsel for the NAACP Legal Defense Fund and a former Michigan law professor, said the cases “represent the most significant civil rights cases the Supreme Court will have decided in the last quarter-century. This issue is nothing less than whether the doors of opportunity remain open for students of color at highly selective institutions.”

One expert for the University of Michigan testified that a race-neutral admission policy would have reduced the percentage of black and Latino students from nearly 14% to about 4%.

High school students applying to the Ann Arbor campus are rated on a 150-point scale. On this scale, 80 points are given for a straight-A average, and 60 points for a B average. Only a maximum 12 points turn on the student’s score on the SAT.

Up to 10 points are awarded based on the quality of the high school, up to eight points for taking a demanding course of study, 10 points for in-state residency, four points for an alumni relationship, three points for an outstanding essay and up to five points for personal achievement. Beyond that, the school awarded 20 points for applicants in an underrepresented racial or ethnic group. This was limited to African Americans, Mexican Americans and Native Americans, lawyers say.

The Washington-based Center for Individual Rights, which represents the white students, made two arguments in its legal challenge to the Michigan policy.

First, the Bakke ruling allowing the use of race to achieve “diversity” is no longer the law, the lawyers for the center said. More recent high court rulings have implicitly overturned Powell’s view, they said.

Second, even if schools can use a student’s race as a plus factor, the Michigan officials go too far, they said.

“They use race as a super factor. If you get an extra 20 points, that’s the difference between an A average and a B average,” said Curt Levey, a center lawyer.

In their appeal, lawyers for Gratz said the university “employs, formally and functionally, a race-based two-track admissions system.”

University officials said minority applicants automatically receive the 20 points, but they add that white students also may receive the same extra points if they come from an economically strapped family or if they attended a predominantly minority high school.

This last year, 25,000 students applied for admission to the Ann Arbor campus, and about half of them -- 12,315 -- were admitted. Of these, 1,040 were black, 692 were Latino and 93 were Native Americans. About 15% of those admitted were from underrepresented minority groups.

Gratz attended the University of Michigan at Dearborn and graduated in 1999. Grutter did not go to law school after she was rejected but would still like to do so, her attorneys said.

Grutter vs. Bollinger and Gratz vs. Bollinger are to be argued in late March.

Lee C. Bollinger was president of the university when the suits were filed.