Despite the Court's curtailment on the use of race in college admissions at the margins, the twin decisions establish that skin color alone can be constitutionally relevant for prospective college students for years to come. Benign 'Strict Scrutiny'?

Monday morning, the U.S. Supreme Court issued the two most anticipated rulings of this term -- decisions resolving, at least for now, the constitutionality of race-conscious affirmative action programs at institutions of higher education. In split decisions, the Court ruled that colleges and universities can consider an applicant's race as a "plus" factor supporting admission, but, at the same time, such racial preferences must be flexibly used "in the context of individualized consideration of each and every applicant" and should be part of a broader admissions policy that considers "'all pertinent elements of diversity.'"

The challenges were brought by white students who were denied admission to the undergraduate and law schools at the University of Michigan even though they had higher grade point averages and standardized test scores than other admitted Black, Hispanic and Native American applicants.

In the law school case, Grutter v. Bollinger, No. 02-241, the Court held by a 5-4 vote that the Equal Protection Clause does not prohibit colleges and universities from considering race in admissions, but instructed that any such use of race "must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race ... the defining feature of his or her application."

In the companion undergraduate case, Gratz v. Bollinger, No. 02-516, a 6-3 majority of the Court struck down the University's policy of blindly awarding a "racial bonus" of 20 points -- or one-fifth of the points necessary for guaranteed admission -- to every Black, Hispanic and Native American applicant. The Court explained that such a rigid and automatic preference did "not provide [the] individualized consideration" necessary to pass constitutional muster, not to mention the "20 points ha[d] the effect of making 'the factor of race ... decisive' for virtually every minimally qualified minority applicant."

Despite the Court's curtailment on the use of race in college admissions at the margins, the twin decisions establish that skin color alone can be constitutionally relevant for prospective college students for years to come. The University of Michigan decisions may also have a far more pernicious effect than just undermining the "core purpose of the Fourteenth Amendment" -- namely, "to do away with all governmentally imposed discrimination based upon race" -- in the limited context of college admissions. The decisions may undermine constitutional equal protection across the board by eroding the "strict scrutiny" applicable to all racial classifications employed by the state.

Specifically, despite numerous exhortations that the narrow majority of the Court applied constitutional "strict scrutiny" in upholding race as a permissible factor in college admissions, the scrutiny applied by Justice Sandra Day O'Connor, who wrote the law school decision, hardly resembled the "searching judicial inquiry" normally applied to racial classifications in order "to 'smoke out' illegitimate uses of race." Instead, at the outset, Justice O'Connor disclaimed the presumptive invalidity of racial distinctions by noting that "[s]trict scrutiny is not 'strict in theory, but fatal in fact,'" and went on to explain that "[n]ot every decision influenced by race is equally objectionable." Such watering down of constitutional "strict scrutiny" may, indeed, transform the Court's entire equal protection jurisprudence from "detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed" to mere ad hoc balancing by the justices, especially when the racial classifications at issue appear to be based on the best of intentions, or "benign."

In fact, Justice O'Connor went so far in her holding for the Court as to "defer" to University of Michigan's "educational judgment that [racial] diversity is essential to its educational mission." Furthermore, according to her opinion, the constitutional "'good faith' on the part of a university is 'presumed' absent a 'showing to the contrary.'" In other words, the bare majority of the Court took the University of Michigan "at its word" that it needed to discriminate on the basis of race in order to fulfill its educational mission and serve a compelling interest in student body diversity. Justice O'Connor didn't stop there. She also took the University "at its word" that it will "terminate its race-conscious program as soon as practicable."

The 5-4 majority's deferential "strict scrutiny" seems to be motivated, at least in part, by tacit approval of the reasons underlying the reliance on race in university admissions -- namely, the desire to allow universities to assemble diverse student populations even when different admissions standards are used to reach that result -- and the belief that racial classifications should face less judicial resistance when the intention is to promote opportunities for previously disadvantaged racial groups. Justices Ruth Bader Ginsburg and David Souter admitted as much by stating, in the undergraduate case, that "where race is considered 'for the purpose of achieving equality' no automatic proscription is in order."

According to their opinion, "'[t]he Constitution is both color blind and color conscious.'" It imposes a standard of colorblindness to prevent the government from "den[ying] a benefit, caus[ing] harm, or impos[ing] a burden ... based on race," but it is also "'color conscious to prevent discrimination being perpetrated and to undo the effects of past discrimination.'"

In other words, Justices Ginsburg and Breyer, at least, believe that there should be two levels of constitutional scrutiny under the Equal Protection Clause -- true "strict scrutiny" used to strike down insidious racial classifications that discriminate against previously disadvantaged groups, and a more lenient and deferential "strict scrutiny" used to uphold benign classifications designed to help out previously disadvantaged groups.

If the University of Michigan cases do signal two different constitutional equal protection standards, then Justice O'Connor's speculation that an end to "racial preferences" may come in "25 years from now" is the least of our worries. After all, with co-existing constitutional standards of color blindness and color consciousness, then we're no closer to making race irrelevant to our country and its laws then we were on July 9, 1868, when the Fourteenth Amendment was ratified.

June 26, 2003
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