Affirmative action backed by high court

By David G. Savage
Los Angeles Times

WASHINGTON — The Supreme Court, saying the nation has a compelling need for racial and ethnic diversity in its leadership ranks, yesterday endorsed the use of affirmative action at colleges, universities and law schools.

University of Michigan President Mary Sue Coleman walks past the Supreme Court after the ruling allowing use of affirmative action in college admissions, with limits on how much a factor race can play. Associated Press

Applying that framework in two deeply divided rulings decided yesterday, the court upheld the affirmative action policy at the University of Michigan's law school because an individual student's race is weighed as one factor in deciding who is admitted. However, the justices struck down the school's undergraduate admission policy because all minority students received bonus points that nearly ensured their admission.

In the most significant of the opinions, Justice Sandra Day O'Connor spoke for five justices in saying the door to opportunity must be kept open for aspiring black, Hispanic and American Indian students.

"In a society like our own, race unfortunately still matters," O'Connor said. "In order to cultivate a set of leaders with a legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity."

Higher education officials and civil rights leaders hailed the outcome as a historic victory, one that preserves integration at the most selective colleges. Until yesterday, they had feared a ruling that would entirely close the door to affirmative action in higher education.

The principle of affirmative action also has been endorsed by the nation's military leaders and the heads of some of the country's best-known corporations.

The affirmative action debate has raged not only around ballot boxes, on TV talk shows and on college campuses, but also within the halls of government — most recently as conservatives and moderates within the Bush administration engaged in a fierce internal struggle over how to respond to the Michigan cases without alienating either the Republican Party's traditional conservative base nor potential minority supporters, especially Latinos.

Ultimately, the administration straddled the issue, arguing in a friend-of-the-court brief that racial and ethnic diversity is an important goal, but that both the undergraduate and law school programs were unconstitutional because the university had failed to attempt race-neutral means of achieving diversity first.

Yesterday, President Bush applauded the court "for recognizing the value of diversity on our nation's campuses. (Yesterday's) decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under law."

The court struck down the University of Michigan's undergraduate admissions policy because it gave 20 bonus points to "underrepresented" minority applicants, which the university said did not include Asian Americans.

This point system "makes race a decisive factor for virtually every minimally qualified minority applicant," Chief Justice William H. Rehnquist said.

The system puts too much emphasis on race and violates the rights of white students to the equal protection of the laws, the court concluded.

O'Connor cast the key vote in both of the Michigan cases decided yesterday.

In doing so, she followed the path set by her closest friend and mentor on the court, the late Justice Lewis F. Powell.

In the Bakke case, Powell, too, split the middle between the court's liberal and conservative factions. He opposed quotas as unconstitutional, but he endorsed the pursuit of diversity by college officials.

Bakke, the white applicant who was rejected by the medical school at the University of California-Davis, was ordered admitted by the Supreme Court. However, the Bakke ruling has stood for the principle that college affirmative action is legal.

For the first time in a generation, the Supreme Court revisited the issue when it took up the Michigan cases. And its decision, thanks to O'Connor, affirms the basic result in the Bakke case.

She joined Rehnquist and a conservative majority to reject what she called "the mechanized selection" system used to admit undergraduates.

The final vote in this case was unclear, because Justice Stephen G. Breyer filed a concurring opinion that agreed both with O'Connor and with the dissenters.

Aligning Breyer with O'Connor would make a 6-3 majority to strike down the undergraduate program.

The law school's admissions policy was upheld on a straight 5-4 vote. Here, O'Connor spoke for the court and its liberal justices in the far more significant opinion that permits higher education officials to use "race-conscious admissions" policies.

"Today, we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions," O'Connor said.

Justice Clarence Thomas quoted abolitionist Frederick Douglass in explaining his dissent.

"If the Negro cannot stand on his own legs, let him fall also. All I ask is, to give him a chance to stand on his own legs," Douglass told a Boston audience in 1865.

"Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university officials," said Thomas, the only black justice. "Because I wish to see all students succeed, whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination" practiced by the University of Michigan, he said. "The Constitution does not, however, tolerate the status quo in admissions policies when (they) ripen into racial discrimination."

The Washington Post contributed to this report.