Court settles for affirimative inaction (Scripps Howard News Service) June 24, 2003

Spin doctors on both sides are claiming victory, but the mixed U.S. Supreme Court decisions about racial preferences in college admissions disappointed conservatives.

Ironically this is not because conservative opponents of affirmative action lost any ground – since the court decisions essentially retain the status quo – but because they did not score a complete knockout of racial preferences.

In the most closely watched cases of this term, the high court held that the University of Michigan’s law school could continue to consider race as one factor in admissions decisions, but that the university’s undergraduate policy automatically assigning a numerical preference for underrepresented minority applicants is unconstitutional. A university may have a “compelling state interest” in racial preferences to create a diverse student body, but each student must be considered individually and not as a part of racial quota or formula.

Court watchers were not surprised by the middle ground, 5-4 court verdict. The Michigan admissions policy had already received mixed results on narrow votes in the lower federal courts. Given the makeup of the present Supreme Court, most experts correctly predicted a close decision, with moderate justice Sandra Day O’Connor casting the key vote. In the end, 6 of the 9 justices wrote their own opinions, reflecting deep divisions on this crucial issue.

The split on the Supreme Court reflects widely varying public views about racial preferences. Americans of all races tell pollsters they believe college admissions decisions should be based purely on merit. Yet colleges of all kinds filed briefs with the Supreme Court urging the continuation of racial preferences. Even the U.S. military weighed in, telling the court that is could not continue to staff an excellent and diverse fighting force without some use of racial preferences.

What practical impact will the Michigan decisions have? It depends on the position in which you stand.

– If you stand in the shoes of underrepresented minority students and their families you are generally pleased. Even though the Michigan decisions do little more than affirm what the Supreme Court said the last time it reviewed these issues 25 years ago, a series of lower court decisions, and even ballot propositions, have been limiting the use of racial preferences. A decision that racial preferences in college admissions are unconstitutional was a frightening possibility.

– If you are an applicant who is not part of an underrepresented minority, this decision may be frustrating. It says that a college admissions will continue to be unpredictable, and influenced by a number of factors that may work to your disadvantage. Families are understandably frustrated when students apply with a 4.0 high school grade point average (or higher) and are still not admitted to their state university.

– Most colleges and universities will be pleased with the decision since, with some adjustments, they can continue their policies of racial preference. Private colleges and smaller campuses will be able to meet the court’s requirement of individual admissions decisions that consider race as simply one factor. Larger, public universities will find that more difficult, since they often use now-forbidden formulas simply to handle the huge volume of admissions files.

– Liberals and other political leaders who favor affirmative action can breathe a sigh of relief. The political momentum running against racial preferences has been slowed. With colleges generally favoring such polities, and the court declaring them constitutional, the matter seems to be settled in their favor for a time.

– Conservatives and others who oppose racial preferences did not achieve the big win they hoped for. In an interesting note, however, the court clearly stated that racial preferences to created a diverse student body are a temporary measure. Justice O’Connor, writing for the majority, said, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” For the first time, the clock is officially running out on racial preferences in college admissions.

Perhaps now it will be possible to take admissions decisions out of the federal courts and return them to campus officials – at least for 25 years.