Let the Michigan Affirmative Action Decisions Generate a Critical Mass

Article excerpt

The Harvard Graduate School of Higher Education conducted a national forum this fall. For two days in Cambridge, Massachusetts, a faculty that included colleagues from Harvard's Law School, Civil Rights Project, John F. Kennedy School of Government, and School of Higher Education; attorney Martin Michaelson, whose brief in Grutter v. Bollinger and Gratz v. Bollinger represented fifty-four higher education associations; and the American Council on Education held court on the Supreme Court's 2003 landmark affirmative action cases.

Their reflections and analysis are offered below with the caveat that in what follows, some of the heavy lifting is theirs, not mine. I am borrowing freely from their discussions, handouts, and references, and in reporting from my notes of the proceedings I am paraphrasing, quoting without attribution, and ordering presentations based at least in part on the intellectual work of others. And, of course, I comment as an editor-a position that does not bring with it admission to the Bar. A very useful web site with primary sources and greater expertise is available at .

That said, I offer the following in the deeply held personal belief that no issue is more important to the work we do in journalism and mass communication education than diversity.

Before examining Grutter v. Bollinger and Gratz v. Bollinger, it is useful to consider four elements of background.

The Michigan cases began with a series of newspaper ads that recruited individuals who folt they were wrongly denied undergraduate admission to the University of Michigan (Gratz) or to the University of Michigan Law School (Grutter). The suits that resulted were well financed and motivated by a desire to end affirmative action.

Judicial deference to the expert judgment of educators, at least when it comes to academic governance, finds precedent in John Marshall's 1819 decision in the Dartmouth College case. In short, the courts rarely interfere with the judgment of professional educators. Thus, university leadership makes a difference. One of the issues at stake in the Michigan cases, in addition to the constitutionality of the policies used to increase racial diversity, was the right of educators, rather than legislatures or judges, to set educational policy.

When University of California v. Bakke (1978) brought the issue of affirmative action admissions to the Supreme Court, a splintered set of six opinions among nine justices produced a ruling, but probably little agreement, that there is a compelling state interest in diversity, that set asides and quotas are not legal, and that affirmative action policies, which can be legal, set into motion a judicial standard called strict scrutiny.

After Bakke, some federal courts upheld college diversity policies; others, such as in Texas, found them unconstitutional. Several states passed legislation or referenda barring affirmative action in all public affairs-education included. Split decisions rarely produce consistent policy within the political or the legal realm. A quarter of a century later, the Supreme Court tried again.

First, let's set the record straight as to what the Court did not do in the Michigan cases.

The Court did not produce a unified position. This time there were 13 individual, concurring, and dissenting positions.

The Court did not consider whether or not a state must take affirmative steps to create diversity in public institutions.

The Court did not consider whether affirmative action must be used to remedy past wrongs, a rationale often underlying the earlier public school bussing cases.

What did the Supreme Court accomplish? The justices attempted in the Michigan cases to set the contours of what compromises lawful public college admissions. In so doing the justices set a number of rules that are likely to be in place for some time. Remember that despite the controversial nature of affirmative action and the lack of clarity Bakke generated, there were twenty-five years between Bakke and the Gratz and Grutter cases. …