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Supreme Court preserves narrow use of affirmative action in college admissions

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WASHINGTON — A divided Supreme Court allowed universities to give minority applicants an edge in admissions today, ruling that the path to leadership in the nation must "be visibly open to talented and qualified individuals of every race and ethnicity." But it also said that race cannot be the determining factor.

In two decisions, the court underscored that racial quotas are unconstitutional but left room for the nation's public universities — and by extension other public and private institutions — to seek ways to take race into account.

The court preserved the rules outlined a generation ago in a landmark ruling that struck down quotas but allowed subtler forms of affirmative action. Today's rulings mean that race-conscious policies in place in institutions as diverse as military academies and women's studies courses will probably remain in force.

Writing for the majority in the 5-4 ruling upholding an affirmative action program at the University of Michigan's law school, Justice Sandra Day O'Connor said the value of diverse classrooms extends far beyond the campus.

"This court has long recognized that 'education is the very foundation of good citizenship'," O'Connor wrote, quoting from the landmark Brown v. Board of Education ruling of nearly 50 years ago.

"For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity," O'Connor wrote. "Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized."

At the same time, the high court voted 6-3 to strike down a separate point system used by the University of Michigan's undergraduate school.

In upholding the law school program that sought a "critical mass" of minorities, O'Connor sided with the court's more liberal justices. Chief Justice Justice William H. Rehnquist wrote the majority opinion in the 6-3 case finding against the undergraduate school. He was joined by O'Connor and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Stephen Breyer.

Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg dissented.

Government has a compelling interest in promoting racial diversity on campus, but the undergraduate school's admissions policy is not the way to get there, the court majority said.

"The university's policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single underrepresented minority applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity," that Michigan claimed justified the policy, Rehnquist wrote.

The ruling affects tax-supported schools, and by extension private schools and other institutions, that have looked for ways to boost minority enrollment without violating the Constitution's guarantee against discrimination.

"A majority of the court has firmly endorsed the principle of diversity," University of Michigan President Mary Sue Coleman said. "This is a resounding affirmation that will be heard across the land from our college classrooms to our corporate boardrooms."

President Bush said in a statement that there are ways that universities and schools can achieve racial diversity without quotas. "I agree that we must look first to these race-neutral approaches to make campuses more welcoming for all students," he said.

The University of Michigan cases are the most significant test of affirmative action to reach the court in a generation. At issue was whether racial preference programs unconstitutionally discriminate against white students.

The rulings follow the path the court set a generation ago, when it outlawed quotas but still left room for schools to improve the odds for minority applicants.

The two Michigan cases directly address only admissions at public, tax-supported institutions. But the court's rationale is expected to have a wide ripple through private colleges and universities, other government decision-making and the business world.

Opponents of affirmative action had hoped the Supreme Court would use this opportunity to ban most consideration of race in any government decisions. The court is far more conservative than in 1978, when it last ruled on affirmative action in higher education admissions, and the justices have put heavy conditions on government affirmative action in other arenas over the past decade.

The court invited decades of continued court fights, said Curt Levey, lawyer for the three white applicants rejected at Michigan and its law school.

"The court left a small crack in the door to use race. The court long ago said quotas are no good. Today they told us that mechanical systems such as Michigan's point system are no good. Schools are going to have to walk that very fine line," and risk lawsuits any time they cross it, Levey said.

Defending its general approach to affirmative action, the university has said that having what it calls a critical mass of minority students benefits the whole student body. Minorities must be present in more than token numbers to ensure all students can interact, the university has said.

Rehnquist dismissed that rationale in a dissenting opinion in the law school case.

"Stripped of its 'critical mass' veil, the law school's program is revealed as a naked effort to achieve racial balancing," Rehnquist wrote.

Michigan insists that it accepts only academically qualified students, no matter what their race.

Michigan's undergraduate school used a 150-point index to screen applicants. The 20 points awarded to minorities was more than the school awarded for some measures of academic excellence, writing ability or leadership skills. Outstanding athletes also got 20 points, as did impoverished applicants.

The school has also "flagged" minority applications, making it easier to keep an applicant in the pool even if he or she flunked an initial review.

In 1997, the year that two white students sued, the school had 13,500 applicants and selected 3,958 of them as freshmen.

The white plaintiffs, Jennifer Gratz and Patrick Hamacher, were Michigan residents with good grades and other qualifications when they were rejected at the flagship Ann Arbor campus. Both have since graduated from other colleges.

The Bush administration sided with the students, but did not call for an outright end to affirmative action.

The students were supported by a range of conservative legal groups, some law professors and affirmative action opponents.

The university's law school program uses a separate, less structured system to promote minority enrollment.

The law school case is Grutter v. Bollinger, 02-241; the undergraduate case is Gratz v. Bollinger, 02-516.

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