The Supreme Court, Affirmative Action, and Higher Education

By O'Neil, Robert | Academe, January/February 2008 | Go to article overview

The Supreme Court, Affirmative Action, and Higher Education


O'Neil, Robert, Academe


Higher education will feel the ripples of the summer's ruling on affirmative action.

The American higher education community found a curious mix of good and bad news in the U.S. Supreme Court's ruling last summer, in Parents Involved v. Seattle School District and Meredith v. Jefferson County Board of Education, about the use of race-based policies by public elementary and secondary schools. The good news: "Grutter lives!" Most observere agreed that the ruling reaffirmed the high court's 2003 Grutter v. Bollinger decision that had sustained race-sensitive admissions policies at the University of Michigan Law School. The bad news: it was far from clear just what legal principles "lived," because of sharp splits among the justices and pervasive ambiguities in the earlier ruling.

More bad news emerged as the summer wore on. Observere realized that the Court's curb on the use of race-based desegregation remedies in public schools would almost certainly reduce the pools of well-prepared applicants from minority groups that have historically been underrepresented in higher education (mainly African American and Hispanic students). Fewer qualified minority applicants will mean that achieving and maintaining diversity on college and university campuses will be even more challenging. In the end, the most recent ruling left open a host of questions of great importance to faculty and academic administrators.

Good News

We should begin with the good news. While striking down most race-based remedies designed to achieve racial balance in the nation's public schools (specifically addressing plans used in Seattle and Louisville), the Supreme Court took pains to distinguish, and thus implicitly to preserve, its 2003 ruling in favor of the Michigan Law School's race-inclusive preferential admissions policy. Both the context and the process were readily distinguishable, explained Chief Justice John Roberts for a plurality of the justices. Higher education should be viewed very differently from elementary and secondary school education, he noted, recalling Justice Sandra Day O'Connor's declaration in the Michigan case that "in light of 'the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.'" The Grutter opinion, noted the chief justice, had stressed "a specific type of broadbased diversity" and "the unique context of higher education"special qualities either inapplicable to or disregarded by the Louisville and Seattle school boards in their desegregation plans.

Moreover, in the Grutter decision, the Court emphasized the "educational benefits" of diversity for the Michigan Law School, but no such emphasis emerged in the new ruling in relation to elementary and secondary schools.

While the Michigan Law School admissions policy considered preferential factore other than race, involved no numerical quotas, and assessed applicants individually, the same could not be said of the public school plans that the Court has now rejected. Although the Louisville and Seattle dissenters argued that the Grutter decision should control the public school cases, at least in spirit, that claim met with little sympathy from the Roberts plurality (or from Justice Anthony Kennedy, whose slightly more sympathetic concurrence produced a majority). However, despite these qualifications and a less-than-sweeping validation of the 2003 ruling, there seems little doubt that "Grutter lives" for higher education, notwithstanding the probable demise of most race-based elementary and secondary desegregation plans. But that, unfortunately, is about the extent of the genuinely good news.

A Closer Look

It's easy to forget that Grutter's companion case, brought by a rejected undergraduate applicant named Jennifer Gratz, reached a very different conclusion. In that decision, the justices invalidated (on both constitutional and statutory grounds) the University of Michigan's racially preferential undergraduate admissions policy, which could not be seen as free of numerical targets or quotas, lacked individualized review of all files, and reflected diversity by race as the dominant, if not the exclusive, desideratum.

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