77 CBJ 1. LATCHING ON TO AFFIRMATIVE ACTION.

• Author: BY EMANUEL MARGOLIS(fn*)

Connecticut Bar Journal

Volume 77.

77 CBJ 1.

LATCHING ON TO AFFIRMATIVE ACTION

1LATCHING ON TO AFFIRMATIVE ACTIONBY EMANUEL MARGOLIS(fn*)Y'gotta accentuate the positive, Eliminate the negative, Latch on to the affirmative And don't mess with mister in-between. (Song by Johnny Mercer and Harold Arlen)

In Regents of University of California v. Bakke,(fn1) Justice Lewis F. Powell, Jr., wrote the controlling opinion. He expressed a seemingly solitary view that there was a "compelling governmental interest" in racial diversity sufficient to meet strict-scrutiny standards.(fn2) The Powell view on racial diversity is solitary no more, commanding five votes on the Supreme Court.

On June 23, 2003, the Court endorsed the constitutional legitimacy of racial diversity in a case involving student admissions to the University of Michigan Law School.(fn3) It placed the diversity rationale for affirmative action on a firmer footing. In the companion case(fn4) involving the admissions program for the College of Literature, Science and the Arts at the University of Michigan, a 6-to-3 majority of the Court invalidated the University's affirmative action program for admissions to its undergraduate college. As is so often the case, the devil was in the details.

The Court's opinion that sustained the Michigan Law School program as constitutional recognizes both the centrality and the precariousness of affirmative action as a program widely employed throughout America's economic, cultural

2and educational landscapes. Indeed, Justice O'Connor, its author, refers to the benefits that have accrued to American businesses from skills acquired by students who are products of diverse academic environments.(fn5) The opinion quotes from amici curiae briefs filed in behalf of 3M Corporation and General Motors Corporation in support of the University of Michigan's admissions program aimed at selecting racially and ethnically diverse student bodies.(fn6) The Court's opinion quotes at length from a similarly supportive brief filed by Lt. Gen. Julius W. Becton and a number of other American generals and admirals, based on their "decades of experience," whose chief contention is that the training and education of a "highly qualified" officer corps is dependent upon racially diverse universities and professional schools.(fn7)

In its editorial on the day following announcement of the Michigan decisions, the New York Times opined that ". . . over all, affirmative action has dodged a bullet."(fn8) At least for now.

1. A LOOK BACKWARD

   The last time that the U.S. Supreme Court addressed the issue of race in public higher education was in 1978 in the landmark case of Regents of University of California v. Bakke.(fn9) The Court examined a set-aside program for minorities that reserved 16 out of 100 seats in a medical school entering class. The splintered decision by the Court enabled Justice Powell to provide the crucial fifth vote for invalidating the set-aside program at the same time that the state court's injunction against any use of race whatsoever was reversed. The only "holding" by the Court in Bakke per se was that a "State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin."(fn10)

   Justice Powell, in pure dictum, declared that a universi-

   3ty's use of race is permissible to further the interest of "the attainment of a diverse student body."(fn11) Grounding his analysis on the principles of academic freedom, the Justice emphasized that nothing less than the "'nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation of many peoples."(fn12)

   Justice Powell's diversity view literally hung by a thread for a quarter of a century. He was speaking only for himself while breaking a 4-to-4 tie. Justice Powell, as well as those who concurred with him (Brennan, White, Marshall and Blackmun) have all passed away. The University of Michigan Law School case presented the Court with the opportunity to decide whether (a) a majority of the Court in 2003 would endorse Justice Powell's view about the special constitutional place of student body diversity, and (b) whether such diversity furnished the necessary "compelling state interest" that would justify the use of race in university admissions.

   Historically, in the years following Bakke, the Supreme Court has veered sharply in the direction of striking down affirmative action plans that failed to pass the test of strict scrutiny in the decades succeeding Bakke. A new majority of the Court's Justices (O'Connor, Scalia, Kennedy, Thomas and Chief Justice Rehnquist) have struck down a series of race-conscious programs under the rubric of equal protection analysis.

   Subsequent to Bakke, there were only two instances(fn13) in which racial preferences were upheld by a fractured Court plurality on the basis of applying the intermediate, rather than strict, scrutiny test. In fact, over the course of almost two decades, the Supreme Court has consistently applied the most searching and exacting strict-scrutiny analysis to affir-

   4 mative action programs.(fn14) Its halting step in the direction of the less demanding test of intermediate scrutiny was formally rejected in its uncompromising application of equal protection principles in Adarand Constructors, Inc. v. Peña.(fn15) In the context of preferences for minority contractors, the Court declared that "government may treat people differently because of their race only for the most compelling reasons."(fn16)

   Thus, the stage was set for the decisions in the two University of Michigan cases. Would the Court take a different position from its previous stances on the use of affirmative action in government contracts? Is higher public education not only distinguishable from race-conscious programs in other areas, but sui generis? Is affirmative action, at least in college admissions, in a safe harbor, at least for another generation?

2. SPLITTING THE DEFERENCE

   In the two university cases decided by the Supreme Court at the end of its 2002-2003 Term, the Court deferred to the educational judgment of the law school that racial diversity is essential to its educational mission.

   Barbara Grutter was a Caucasian applicant to the University of Michigan Law School, with a 3.8 G.P.A. and a 161 L.S.A.T. Initially wait-listed, she was subsequently rejected for admission.(fn17) She brought suit and won in a federal district court claiming that the Law School discriminated against her on the basis of her race in violation of the

   5Fourteenth Amendment.(fn18)

   At the time of Grutter's application for admission, the Law School's policy coupled academic achievement with a flexible assessment of students' talents, experiences and potential; admissions officials were required to evaluate each applicant based on all the information available in the student's file, including a personal statement, letters of recommendation, and an essay describing how the applicant would be likely to contribute to life in the Law School and its diversity. (fn19) In addition, the Law School's officials had to go beyond grades and scores to so-called "soft variables," such as recommenders' enthusiasm, the quality of the undergraduate institution, the applicant's essay, and the areas and difficulty of undergraduate course selection, all with a view to assessing an applicant's likely contributions to the intellectual and social life of the institution.(fn20)

   The Law School's policy reaffirmed its commitment to "one particular type of diversity," that is, "racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers."(fn21)

   In the case of the undergraduate school, a 6-to-3 majority of the Court chose not to defer to the university admissions program's scheme for achieving educational diversity at its College of Literature, Science and the Arts. The Court concluded: We find that the University's policy, which automatically distributes twenty 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 respondents claim justifies their program.(fn22)

   Chief Justice Rehnquist, writing the opinion for the Court,

   6recognized the fact that Justice Powell in Bakke had held that it would be constitutionally permissible for a university to employ an admissions program in which race or ethnic background could be deemed a "plus" in a particular applicant's file.(fn23) However, in Gratz, the Court concluded that the University of Michigan's undergraduate admissions program had the effect of making the factor of race, rather than a "plus," decisive for virtually every minimally qualified minority applicant.(fn24)

   The Grutter and Gratz decisions repeat the equal protection mantra that all government racial classifications must be analyzed by a court of review under strict scrutiny.(fn25) But not every such action is barred by strict scrutiny inasmuch as such scrutiny "is not 'strict in theory, but fatal in fact.'"(fn26) Race-based action may be "necessary to further a...