The United States Supreme Court's recent decision to review two cases challenging the University of Michigan's race conscious admission policies has once again put the public spotlight on affirmative action. Twenty-five years after its crucial judgment in the Bakke v. University of California case, the Supreme Court will hear oral argument on April 1 in cases involving the University of Michigan's undergraduate and law school affirmative action programs.
In Bakke, Justice Lewis Powell wrote a pivotal concurring opinion that represented "the judgment of the Court," finding that the University of California's special program setting aside several admissions slots for exclusive consideration of underrepresented minority candidates was an unlawful racial quota. Justice Powell also concluded, however, that race could constitutionally be considered as one factor (a "plus," but not the decisive factor) among a multitude of factors in order to promote educational diversity.
Since the Bakke decision in 1978, many selective universities have employed this limited consideration of race in their admission practices -- with real results. Over the years these affirmative action policies have improved representation of minority groups whose educational opportunities had formerly been thwarted by state de jure and de facto discrimination. And they have effectively promoted diversity by enriching the educational experiences of students of many social and ethnic backgrounds.
Why then is the issue back before the Supreme Court? And what legal standard will the court apply in its review?
The Michigan cases have been positioned by the parties to test the viability of the Bakke holding, particularly Justice Powell's critical opinion that "educational diversity" is a constitutionally justifiable goal for taking race into account in university admissions practices. At issue in one case is the legal validity of Michigan's undergraduate "point-based" admissions policy, in which underrepresented minorities receive a 20-point bonus on a possible 150-point scale (bonus points are also given for geographical, alumni relationship and other considerations). Also assailed in the companion case is the law school admissions policy which, though less formulaic, similarly considers race in composing a class that contains a "critical mass" of minority students.
The lower courts have reached strikingly different results, with one federal district court judge finding the Michigan undergraduate admissions program sufficiently in synch with Bakke (Gratz v. Bollinger, et al.), while another federal district court judge rejected the law school's diversity rationale (Grutter v. Bollinger, et al.). Subsequently, the Grutter decision was reversed by the federal appellate court in a deeply divided 5-4 ruling. Filling out the legal landscape, other federal courts have also recently issued conflicting rulings on the viability of Bakke.
In assessing the constitutionality of such race conscious policies adopted by state institutions, the courts apply the equal protection standard of "strict scrutiny," which has two elements: whether the policy serves a "compelling governmental interest" and, if so, whether it is "narrowly tailored" to serve that interest. This standard of judicial review is exacting and, with respect to the "narrowly tailored" prong, intrusive into university decisionmaking (e.g., probing "alternative" admission practices).
Given the vital policy interests at stake, Cornell decided to weigh in as an amicus curiae in support of the University of Michigan. At the same time, we were determined that our amicus brief should advance a distinctive argument: one that bolsters -- but does not repeat -- the "educational diversity" argument of the Michigan defendants. Our idea was to focus on the First Amendment rights of universities to make good faith judgments in core academic matters. Universities, for the most part, have been admirably aggressive in affirmative action efforts, while they often have been curiously timid in asserting academic autonomy. Here, we could merge both interests.
Columbia University colleagues were equally intrigued with this tack, and together we enlisted a leading First Amendment lawyer and Cornell alumnus, Floyd Abrams, to develop this First Amendment argument. And in the interest of diversity (geographical and otherwise), we invited three other distinguished private universities -- Georgetown, Rice and Vanderbilt -- to join in this collaborative effort. The following is a summary of our argument drawn from our amicus brief:
In the course of this legal and public policy debate, little has been said about the First Amendment rights of the universities themselves. Academic freedom has frequently been said by the United States Supreme Court to be a "special concern of the First Amendment," and the right of a university to determine whom to admit has been said to constitute a central element of academic freedom. But the core question has been phrased by the plaintiffs here in an entirely one-dimensional way, by simply asking whether a university's "use of racial preferences in student admissions violates the Equal Protection Clause of the Fourteenth Amendment."
What this debate has failed to recognize is that there is another constitutional provision at issue, the First Amendment, which should be understood to limit the power of the government to require all universities to adopt completely race-neutral admissions policies. What is involved here is, in Judge Wiener's felicitous phrase in Hopwood v. Texas, an "uneasy marriage of the First and Fourteenth Amendments" which requires due consideration to the claims of both.
The amici curiae brief Cornell et al. submitted to the Supreme Court sets forth the First Amendment side of the equation. We stress that First Amendment interests can be accommodated and Fourteenth Amendment and Title VI interests still vindicated by providing a high degree of deference to a university's determination as to how to further its academic mission. We urge specifically that when a university (especially a private university) determines that a constitutionally permissible goal -- such as diversity within its student body -- is essential to providing the highest quality educational experience for its students, any assessment of "narrow tailoring" as part of strict scrutiny analysis by the judiciary should reflect that deference. Consistent with the First Amendment, a university's judgment about how best to implement its academic mission should not be easily ignored.
This column was written by James J. Mingle, Cornell University counsel and secretary of the corporation. The Diversity Digest is a service provided by the university's Diversity Council.
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