As the nine robed justices listened to the arguments in the cases against the University of Michigan in April 2003, several thousand rallied outside on the steps of the U.S. Supreme Court Building. They had come from many universities, including Harvard, Penn State, U.C. Berkeley, Howard, Georgetown, and especially, Michigan. Most were black, some whites and Hispanics, and many held signs as they listened to speakers Al Sharpton, Martin Luther King III, and the Rev. Jesse Jackson. “We must fight this fight, ” Jackson declared, and then the crowd joined him in chanting, “The struggle is not over.”
Others hoped it was over, including two white women. Jennifer Gratz had applied to become an undergraduate at the university, and Barbara Grutter had sought acceptance into the law school. Denied admission, the two women sued in separate cases, claiming that the university's policy violated their rights under the 1964 Civil Rights Act and the equal protection clause of the Fourteenth Amendment of the U.S. Constitution. That policy was affirmative action. The university had used race as one of the many criteria for admission.
Ten weeks later, in June, the Supreme Court issued its decisions, the most crucial ones concerning higher education since the late 1970s. By a narrow 5 to 4 majority, the Court again found affirmative action constitutional. Writing for the majority, Justice Sandra Day O'Connor declared, “We expect that 25 years from now, the use of racial preferences will no longer be necessary.”
The response was immediate and expected. “The court's decision is a great victory for American higher education, ” declared the former