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2003
Affirmative action

By Colin S.Diver

In a pair of decisions rendered last June, the Supreme Court ruled that institutions of higher education may consider the race or ethnicity of an applicant for admission, but only under two conditions. First, the institution may consider race as a means of attaining the educational benefits of a “diverse student body” (but not, say, to remedy historic societal discrimination or to achieve a desired racial mix for its own sake). Second, the institution must engage in a suitably “individualized” process of evaluating candidates in which race is merely one of several attributes considered. Race may, in other words, be used sometimes, but not other times, and may receive some weight, but not too much weight.

The vehicle for these rulings was a pair of cases challenging admissions practices at the University of Michigan. One of the cases (Grutter v. Bollinger) upheld the race-conscious admissions practices of the Michigan Law School. The other case (Gratz v. Bollinger) overturned the race-conscious admissions practices of Michigan’s undergraduate college. The admissions systems used by both schools gave favorable—and, statistically, quite substantial—weight to self-identified status as an African American, Latino, or Native American. The justification offered for this practice was the same in both schools: to achieve the educational benefits of having an ethnically diverse student body. The two systems differed, however, in the way in which they considered race or ethnicity.

Set against the simplicity and moral clarity of Brown, the Michigan cases exhibit the tortured reasoning and bitter divisions that have come to characterize the jurisprudence of race relations in post–Jim Crow America.   The law school admissions office looked at each candidate “holistically,” considering his or her race in conjunction with other factors, such as socioeconomic background, primary language, and work experience, that might contribute to student body diversity. This system, said the Supreme Court, used race as part of a sufficiently individualized assessment to pass constitutional muster. The undergraduate system, by contrast, employed an arithmetic formula to determine admissibility. The formula assigned points to every application, based on various academic, social, and personal factors. Being a member of one of the three favored ethnic groups entitled a candidate to an automatic 20 points, out of roughly 90 points needed to secure admission. This system, said the court, was too deterministic and gave race too much weight to satisfy the requirement of “individualized” consideration.

The Michigan cases were decided on the eve of the fiftieth anniversary of the Supreme Court’s historic decision in Brown v. Board of Education. Set against the simplicity and moral clarity of Brown, the Michigan cases exhibit the tortured reasoning and bitter divisions that have come to characterize the jurisprudence of race relations in post–Jim Crow America. Nowhere has that divisiveness been more apparent than in the domain of “affirmative action.” In the early years following Brown, reformers concentrated on stamping out racial segregation and discrimination in all its multifarious forms. By the late 1960s, however, a consensus emerged that racial justice could not be achieved merely by prohibiting discrimination. Affirmative steps needed to be taken to overcome the lingering effects of centuries-old oppressive practices. In the educational sector, those steps included much more active and aggressive recruitment, establishment of remedial educational programs, and application of differential academic admissions standards. Targeted initially only at blacks, these policies came increasingly to be applied to members of other racial and ethnic groups.

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2003