Outspoken foes of affirmative action were bitterly disappointed Monday, as a majority of the high court’s justices for the first time upheld the use of racial preferences to promote student body diversity.
In a twist, however, two guarded critics of affirmative action — the Bush administration and the Anti-Defamation League — joined supporters of racial preferences in hailing the court’s ruling, praising its support of the diversity principle.
In a pair of decisions, the court struck down the University of Michigan’s undergraduate admissions practices, which awarded a fixed number of extra points to minority applicants, while upholding the more flexible affirmative action policies employed by its law school. Both the ADL and the White House had filed friend-of-the-court briefs that criticized the University of Michigan’s policies, but stopped short of calling for a blanket prohibition on the use of racial preferences in university admissions.
The positive reactions from President Bush and ADL leaders underscored what has become increasingly apparent to many observers: that racial preferences are now accepted as a feature of the American scene, and few voices outside of conservative activist circles have the political will to push aggressively for their elimination.
“This decision, which basically takes a slap at either quotas or formulas that are fairly rigidly applied, is going to end up satisfying the biggest objections of a large number of people who have qualms about the way racial preferences have been applied,” said Norman Ornstein, a resident scholar at the conservative American Enterprise Institute. “It still leaves some kind of murky ground here, but other than a kind of core of people who are very dedicated and who view this through an ideological prism, I don’t think this decision is going to cause a lot of people to go to the mattresses.”
In the Michigan undergraduate case, Gratz v. Bollinger , the court, by a 6-to-3 margin, struck down the university’s point system under which blacks, Hispanics and Native Americans were automatically awarded 20 points out of 100 needed for admission by virtue of their racial background. The policy, according to the opinion of the court, written by Chief Justice William Rehnquist, failed to provide “individualized consideration” of applicants.
But in the law school case, Grutter v. Bollinger , the court, by a 5-to-4 margin, upheld a more flexible admissions policy that aimed for a “critical mass” of minority students. The court’s majority affirmed the view of the late justice Lewis Powell, whose opinion in the landmark 1978 Bakke affirmative action case argued that race can be considered by colleges as one factor among many in order to produce a diverse student body.
Powell’s diversity rationale has served as the legal justification for many universities’ affirmative action policies. Until now, however, it had been vulnerable to legal challenges because Powell, despite casting Bakke ’s decisive vote, was the only justice to invoke diversity.
President Bush — notwithstanding his administration’s briefs urging the high court to strike down both affirmative action programs — praised the court’s decision in a statement: “I applaud the Supreme Court for recognizing the value of diversity on our Nation’s campuses. Diversity is one of America’s greatest strengths. Today’s decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law.”
Bush’s statement irked die-hard conservative opponents of affirmative action, who blasted the Supreme Court’s decision and had already voiced disappointment with the administration for not making the case in its court briefs that racial preferences are inherently unconstitutional.
Ornstein called the president’s statement an example of “the political adroitness of Bush, his ability to take something coming out of the court this way and declaring victory on it to try and defuse the issue.”
On this issue, Ornstein said, the president likely believes that his political base will cut him some slack, affording him the opportunity with his statement to alleviate “some of the problems that he has with minority groups.”
The ADL, which has been the most outspoken foe of racial preferences among major Jewish agencies — and the only one to file a brief opposing the Michigan policies — also emphasized what it saw as the positive side of the court’s decision. In a statement, the ADL reiterated its opposition to racial preferences, but said it “welcomed” the Supreme Court’s decisions, calling them an “attempt to strike a delicate balance.”
The ADL’s national director, Abraham Foxman, said that numerical systems are “the most damaging” types of racial preferences and called the court’s ruling in Gratz “a major, major victory.” He said that while the ADL would prefer that racial preferences not be used at all, “we can live with what the court says.”
In the 1970s, Jewish groups were at the forefront of battles against affirmative action policies. Many Jews were uncomfortable with the shift of the civil rights movement from color-blind liberalism toward racial preferences, particularly the use of quotas, which evoked memories of earlier efforts by elite schools to limit Jewish enrollment. In the 1978 Bakke case, the three leading Jewish civil rights groups — the ADL, American Jewish Committee and American Jewish Congress — filed briefs opposing the policy of the University of California at Davis, which set aside medical school admissions slots for minority students. The stand of the three Jewish organizations contributed to tensions with black groups, with whom they had previously been allied.
Jewish concerns about affirmative action, however, have dissipated with time, in part because the Bakke decision prohibited the use of quotas.
This time around, the ADL filed a very measured argument against the policies at the University of Michigan, even taking the unusual step of formally filing on behalf of neither side. A source within the organization said that the language of the brief was “debated intensively” within the organization’s governing committees and was the result of a “compromise kind of a situation.”
On the other side of the Michigan case, several leading Jewish organizations signed onto an AJCommittee brief supporting the university’s policies. Many of these groups issued statements praising the Supreme Court’s decision, as did the Jewish Council for Public Affairs, a public policy coordinating body for 13 national Jewish organizations and 123 local community relations councils.
The Religious Action Center of Reform Judaism and the National Council of Jewish Women, however, while welcoming the court’s defense of the diversity principle, expressed disappointment that the court had struck down the undergraduate admissions program.
The AJCongress, which did not file a brief in the latest case, also issued a statement welcoming the court’s decision, but was less enthusiastic about affirmative action, alluding to the court’s opinion in Grutter , written by Justice Sandra Day O’Connor, which said: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
“The ambiguity of the decisions, taken together, is, in sum, a good thing,” AJCongress’s general counsel, Marc Stern, said in the statement. “Universities will be allowed some leeway to maintain diversity — but under measures and standards that will carefully cabin its worst excesses and will in the future finally put an end to such programs.”