Posted on 06/23/2003 3:57:03 PM PDT by Congressman Billybob
This morning the US Supreme Court issued two decisions concerning affirmative action in the admissions policies of the University of Michigan. By a 5-4 decision, it affirmed the race-based policy of the University's law school. By a 6-3 decision, it struck down a similar policy for undergraduate admissions.
In the law school case (Grutter v. Bollinger) the Court issued six different opinions among the nine Justices. In the undergraduate case (Gratz v. Bollinger), it issued perhaps its all-time record, seven opinions in one case. Despite that large number of opinions, some of which are remarkably hostile toward one another, the bottom line conclusion of these two cases is clear – affirmative action is dead in American universities in no more than 25 years.
We start with Gratz, the undergraduate decision. The Admissions Office there awarded 20 points automatically to any applicant who was a member of a "disadvantaged minority," which meant African-Americans, Hispanics, or Native Americans. Admission to the university generally required 100 points out of a possible 150. By contrast, the rare student who achieved a perfect score on the Scholastic Aptitude Test received only 5 points for that. One racial group, Asian Americans, received no points, because historically students from that group outperform Caucasian students in academics and in qualifications for admission.
The effect of the 20-point bonus was to make "the factor of race .... decisive" for almost every minimally qualified student from those specified groups. It also meant that applicants not from those racial groups, but far better qualified academically, were refused admission.
Led by Chief Justice Rehnquist, six Justices had no difficulty concluding that this amounted to a quota system, which the Court had condemned in the Bakke decision a quarter century ago, and agreed that the undergraduate admission system – and anything like it in any other public college or university – was unconstitutional. (There were separate Dissents filed by Justices Stevens, Souter and Ginsburg.)
On the face of it, the law school case seems to be the opposite of the undergraduate one. In the Grutter case, the Admissions Office looked at every one of the 3,500 or so applicants for a freshman class of about 350 students. They looked at grade point averages, at scores on the Law School Aptitude Test, at extracurricular activities, and at "life experience." Included in the latter were the racial experiences in the students' lives, including difficulties faced and overcome. Justice O'Connor wrote the Opinion of the Court approving this system, joined by Justices Stevens, Souter, Ginsburg and Breyer.
In both cases, the University of Michigan asserted that it had a legitimate educational purpose of "diversity" in the student body. It said that students learn not only from their professors but from one another, and diversity is essential to that purpose. In both cases, the Supreme Court accepted that as a legitimate purpose – but in the undergraduate case only, the Court struck down the method chosen to accomplish that "compelling interest."
In the law school, the University said it sought a "critical mass" of minority students, not just the small numbers of minority students who qualified for admission without any special consideration. The University never defined how many students made up a "critical mass," because that would appear to be a quota, which was clearly illegal.
Chief Justice Rehnquist, in a particularly cutting dissent, used the University's own admissions figures to demonstrate that the "critical mass" for African American students was more than twice the critical mass for Hispanics and four times the critical mass for Native Americans. Both he and Justice Thomas, the Court's only black Justice, referred to the Law School admissions program as "a sham." Justices Kennedy and Scalia also filed dissents.
Both of these cases were decided under the Fourteenth Amendment, which says that no state shall "deny to any person ... the equal protection of the laws." Both cases started with the presumption that denying admission to one student as opposed to another, solely on account of the different races of the two students, denies equal protection to the student excluded. And all of the plaintiffs in both of these cases were denied admission though they had credentials which would have gotten them in for certain, had they been members of a disadvantaged minority. This factual finding was not questioned by any of the Justices in either of the cases.
What is going on here? Has the Supreme Court turned schizophrenic, approving racial discrimination in one case but rejecting it in the other?
No. There is one critical difference between the two cases. For undergraduates, the advantage for certain students was absolute and solely race-based. Every member of the target race got the advantage, without any consideration of whether it was appropriate. However, for law school applicants the advantage was individually considered. For example, a child of Cliff and Clair Huxtable (the Cosby family on TV), would get no advantage – that child of a doctor and a lawyer, attending good schools in good neighborhoods, would be expected to perform at the same level as any Caucasian or Asian American student.
Some readers might ask at this point whether this means less racial discrimination, but not an end to discrimination. Some might agree with the dissent in the law school case, that this is still a violation of the Fourteenth Amendment. See for yourselves. The opinions are relatively short and written in plain English. They can be found at either of these websites: www.supremecourtus.gov and www.supct.law.cornell.edu/supct/ The alternative site at Cornell is given because the Supreme Court's official site was overrun with hits today.
There is a critical point in the law school case not mentioned in any of the press reports this writer has seen and heard. In line with prior Court decisions, Justice O'Connor's Opinion states that it should remain in effect only for "twenty-five years." Even by its own terms, this decision is deliberately temporary. That leads to the ultimate conclusion that affirmative action, even in the limited form accepted in one case today, will be abolished as unconstitutional. - 30 - About the Author: John Armor practices civil rights law in the Supreme Court, and is filing his 17th brief there this month.
- 30 -
No SCOTUS decision has the power to automatically "off" itself after 25 years. O'Connor was expressing a breezy personal opinion and desire--not invoking a sunset provision.
Yet Congressman Billybob's analysis makes it sound as if the "25-year and out" thing is a done-deal. He knows better. I suspect it was just sloppy writing on his part.
All the undergraduate decision did was force admissions committees to be more subtle in carrying out their racist policies in the future. Hard quotas and race-based points are out. Now they will simply reach the same result through a process of zen-like touchy-feely subjective analysis in which certain racial characterisitics will override objective factors.
Why will they do this? Becuase admissions committees are unabashedly liberal and believe fully in affirmative action. They will warp and twist the decision to keep affirmative action the focus of how they do their work.
Is that the case? I have been hearingagain and again that the number is 12 for a perfect SAT.
While I too am dissapointed with the GOP here, the Dems are definitely worse. Read Ginsburg's law school concurrence joined by Bryer. These two like affirmative action on the basis of supposed treaty obligations/INTERNATIONAL LAW! Our side may be weak-kneed, but at least they are on America's side.
I thought Turley's comment about any system that would consider Oprah Winfrey and Bill Cosby "disadvantaged" was seriously out of whack, particularly well stated.
...but as Brit Hume pointed out, the interest she appeared to be referring to was "diversity", not Affirmative Action. Seriously weird.
Only if they let it.
How long since they've reviewed the mess in the courts over the 2nd Amendment? 1939.
O'Connor and the rest of the liberals on the United States Supreme Court are disgraceful, pandering, political whores.
How lame is that? Is that like saying all firearms ownership will be illegal - - for the next twenty-five years? Or, newspapers may not be published unless there is government approval of their content - - for the next twenty-five years?
Clearly, some members of this Supreme Court, not counting the known scumbags like Souter and Breyer, are way too old to think clearly. Are there any provisions which allow dottering, senile old fools to be removed from the bench involuntarily?
FYI, Justice Scalia nailed this point in his dissenting opinion in Grutter. Check it out:
"...This is not,of course,an “educational benefit ” on which students will be graded on their Law School transcript (Works and Plays Well with Others:B+) or tested by the bar examiners (Q:Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law—essentially the same lesson taught to (or rather learned by, for it cannot be “taught ” in the usual sense)) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School,in institutions ranging from Boy Scout troops to public-school kindergartens. If properly considered an “educational benefit ”at all, it is surely not one that is either uniquely relevant to law school or uniquely “teachable ” in a formal educational setting..."
That's how I read it.
Seriously weird.
Maybe she heard too many of those public service ads on the radio praising diversity.
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