In an important victory for supporters of affirmative action on June 23, the United States Supreme Court upheld diversity as a compelling state interest and supported the affirmative action program at the University of Michigan Law School (Gratz v. Bollinger).
The decision clarifies a legal point that had remained uncertain since the Bakke v. the Board of Regents ruling 25 years ago, which found student body diversity to be a 'compelling interest,' yet failed to provide clear direction on acceptable means to achieve it. The Bakke decision baffled educational institutions, corporations, and contractors, which struggled to define acceptable affirmative action programs.
Six years ago, two applicants to the University of Michigan Law School and undergraduate school, respectively, challenged admissions policies on the grounds that practices used to promote diversity violated the Equal Protection Clause of the Fourteenth Amendment. This time around, the Supreme Court responded clearly: "Race-based action necessary to further a compelling governmental interest does not violate the…Clause so long as it is narrowly tailored to further that interest."
In a demonstration of 'narrowly tailored,' the Supreme Court upheld the law school's program, which uses race as one of several factors in admissions decisions, while declaring unconstitutional the university's undergraduate system, which awarded certain minority students 20 extra points on a numeric scale that ranked its applicants.
To help put the Supreme Court ruling in proper context, MCCA® sought the view of several individuals who played key roles in this landmark decision to learn more about the behind-the-scenes legal work, and how the decision will affect the future of race relations in the country.
John Payton, a partner with Wilmer, Cutler & Pickering in Washington, D.C., worked as lead counsel on both cases and participated in setting case strategies. An experienced Supreme Court jurist, Payton also presented the oral argument in the undergraduate case before the Supreme Court.
1. Tell me about your preparation for these cases, and what impact did the filing of the Bush Administration's brief have on your preparation?
Let me provide a little background, which may help place both cases in perspective. The two cases are identical in terms of the complaints filed against the university. Both hoped to overrule Bakke. From day one, we understood that preserving Bakkewas our number one priority, and that if we did, then the rest were just details. All of preparations and arguments, then, revolved around this goal.
The Bush Administration filed a brief [in opposition to the University] that argued there are race-neutral ways of achieving diversity and essentially that percentage plans were bad. This forced us, in our defense, to take on the percentage-plan argument, which we weren't initially planning to do. Still, preserving Bakkeremained our number one priority.
2. What is one of the more memorable challenges that was presented in this case?
The justices allowed me five uninterrupted minutes to explain why it matters that we have racially and ethnically diverse student populations in our even-more segregated society today, which is evidenced in Michigan where, for example, there are very few white students in Detroit and fewer black students outside of Detroit. This was a crucial point in both cases actually, and we knew we needed to work this in somewhere and at the end of my five minutes—which is a lot—I got nods from the justices.
It has been a very long time since we have had an opinion from the Supreme Court on race that can be characterized as optimistic. The Court's opinion says that we have problems, that [affirmative action programs] help solve these problems, and that solving these problems is important to our future as a society.
3. How do you respond to assertions, such as Ward Connerly's, that affirmative action entraps blacks in an inescapable web of prolonged suspicion regarding their ability to qualify on their own merit?
Every one of the students offered admission—white, black, hispanic, asian—were qualified. The plaintiff conceded this, and even Justice Scalia [who offered a dissenting opinion in Grutter] said this. The real issue is about picking the class from among only the qualified. The question to be put to Connerly is, then, is diversity important? … No one could truly believe that an all-white male student body is optimal.
Marvin Krislov, vice president and general counsel of the University of Michigan, joined the institution five years ago, swayed in large part by the opportunity to defend the University's admissions policies.
1. What was your role in helping the team prepare for the case? How did you encourage and/or coordinate the support you received in the form of amicus briefs?
Our main role was as coordinators—we produced evidence, handled all public relations, communications, communicated with our client and external supporters, and coordinated the efforts of the three different law firms working on the two cases.
With respect to the amici, we spoke with organizations, lawyers, individuals, et cetera, explaining how Bakke was still a viable compromise that worked for our society. We reached out to some of our supporters, others reached out to us, and still others reached out to each other. Everyone realized that these two rulings would be historic and would affect the future of race relations throughout society.
2. Why was this case so important?
Diversity is important for the future of higher education, and is critical for excellence in education. Since 1978, select universities have developed affirmative-action programs based in part on the Bakke ruling, which showed that one can seek both diversity and educational excellence. These two cases challenged the future of diversity, for if the Bakke ruling was destroyed we stood to suffer setbacks in many areas.
For higher education, one of our expert witnesses showed that if you remove affirmative-action programs, the number of minority students would drop from something like 14 percent to roughly 4 percent, a level so low as to re-segregate a lot of colleges and universities.
Beyond higher education, another key effect was underscored by our amici [which included 75 different amicus briefs from universities, more than 63 Fortune 500 corporations, 23 states, members of Congress, and a brief signed by 29 former high-ranking military leaders]. Higher education is a gateway. To develop the skills necessary in today's global marketplace, students need to be taught in a diverse setting. A lack of diversity threatens economic growth and national security. So there is a lot at stake for those who rely on higher education for their workers.
3. What are the ramifications of the Court's decision?
For the first time, a major court ruled that diversity was a compelling interest and gave us a road map to work from. Just today, the National Association of University Attorneys convened to discuss the case and next steps. It was one of the largest conference calls ever, with 135 participating institutions and several thousand representatives on the phone across the country. We are all proud of what these cases have accomplished and consider it a great victory for us.
Alan Jenkins is the director of the Human Rights unit of the Peace and Social Justice Program at the Ford Foundation, who followed the developments of the two cases closely.
1. What are the ramifications of the Court's decision?
The highest court in the country recognized diversity as one of the nation's greatest strengths. We have been given the green light to pursue it. I think leaders in business, education, and the military overwhelmingly supported the University's position, as evidenced by the amicus briefs filed on their behalf. They inherently understood how diversity on that level ties in with diversity throughout society.
2. How did you feel about the ruling?
I feel it was the right decision. Leading institutions will continue to have the ability to take steps to address diversity and simultaneously battle discrimination. I attended the oral arguments, and it was clear that the majority of the justices understood the importance of diversity.
3. What do you make of the University's opponents, particularly those believing that to pursue diversity one must lower standards? Also, how will the Court's ruling impact diversity hiring programs nationwide?
Of affirmative action's opponents, I think it is important to remember that test scores are not the same as standards. [Affirmative action] programs only admit people who are qualified. It is a red herring to talk about lowering standards, as every university seeks educational excellence.
The question is whether we can do this and address diversity, and the Court's decision says, yes, we can do both. Institutions nationwide, along with business, et cetera, were given clear instruction that they can pursue race and gender diversity as they look for the qualifications they seek amongst their candidates. My hope is that they will continue to do so through affirmative-action programs, and that diversity and its benefits will increase over time.
Alea Jasmin Mitchell worked for MCCA as a summer intern upon her graduation from Wesleyan University. She is now the features editor for Diversity & the Bar® .
From the September/October 2003 issue of Diversity & The Bar®