Supreme Court poised to offer long-overdue clarity on racial preferences

By next June the nation’s highest court could finally issue a much-needed clarification of the constitutionality of using racial considerations in college admissions decisions. The Supreme Court took up two cases in which white applicants argued that their applications to the University of Michigan and its law school were turned down because of their race.

The cases offer the court its first chance to rule on race-preferential admissions since the landmark 1978 decision Regents of the University of California v. Bakke, which was the only time the court ruled on the issue. The court nearly ruled on a similar issue in 1997 in the case of Piscataway v. Taxman, which involved a race-preferential hiring policy at a New Jersey high school. Concerned that a decision would end race-preferential policies in hiring and admissions decisions, however, a coalition of civil-rights groups brought the case to an end by cobbling together a last-minute monetary settlement with the plaintiff.

This time, however, even civil-rights groups have petitioned the court to take up the Michigan cases, Gratz v. Bollinger (concerning undergraduate admissions) and Grutter v. Bollinger (concerning law-school admissions). The reason there is so much interest in the court reviewing those cases is the confusion over what the court actually said about racial preferences in Bakke.

In that decision, Justice Lewis F. Powell Jr. wrote a nuanced opinion in favor of the limited use of race-based admissions to ensure a racially diverse campus. None of the other justices, however, signed Powell’s opinion. Four ruled that a racial quota system (used by UC in discriminating against Allan Bakke, a white medical-school applicant) violated the 1964 Civil Rights Act. The other four ruled that race used as a criterion in admissions decisions was permissible. Powell agreed with the four that a racial quota system was unconstitutional but stated there was a compelling state interest in intellectual but not simple ethnic diversity, so that colleges could use an applicant’s race as a “‘plus’ factor.”

Although Powell’s opinion received no other signatories, its apparent endorsement of using race in admissions decisions has driven collegiate admissions practices since, leading to numerous lawsuits. Now there is a large division in the federal courts of appeals on the issue. The Sixth Circuit and the Ninth Circuit (concerning racial preferences at the University of Washington Law School) have now both ruled in favor of the “diversity” rationale for using racial considerations in admissions decisions, which the Fifth Circuit, in Hopwood v. Texas, rejected. Furthermore, the Eleventh Circuit was unique in its ruling against the University of Georgia’s racial points system of admissions that the use of racial considerations in admissions decisions must be “narrowly tailored” to Powell’s diversity rationale.

Apart from Piscataway, the Court has passed on previous cases involving racial preferences. In 2001 it declined for a second time to review Hopwood (it had declined on it previously in 1996). Also in 2001, the Court dismissed without comment or dissent an appeal of the Ninth Circuit’s decision favoring racial preferences at Washington. The University of Georgia declined to appeal the Ninth Circuit’s decision that same year. In 1998 the Court declined to review Farmer v. Nevada, concerning race-preferential hiring policies at the University of Nevada.

Court observers had speculated that the court was waiting for a case with good features in order to make a definitive ruling, and that the split in the circuit courts and the facts of the Michigan cases offered the justices that opportunity. The Michigan cases involved internal admissions documents showing that white applicants and minority applicants were evaluated on different scales of admissibility.