A Judicial Role Call on Affirmative Action, Part I: The Liberal Wing

Lucas Morel

April 1, 2003

The Supreme Court recently heard oral arguments in Grutter v. Bollinger and Gratz v. Bollinger, which address the University of Michigan’s affirmative action programs at their law school and undergraduate college, respectively. While legal experts debate if oral arguments really influence the Court’s decisions, the questions posed by the justices shed some light on how the Court views the role of race in higher education. In this and a follow-up essay, we present a roll call of the nine justices’ concerns.

Justice Ginsburg presumed that racial diversity was a compelling state interest by focusing her questions on the use of race as one of several factors in achieving diversity in higher education. Given the high selectivity of the University of Michigan Law School, which draws a highly qualified applicant pool, the emphasis upon racial diversity appears to allow few alternatives to the direct consideration of race as a "plus" in the admissions process. Ginsburg also cited the "positive discrimination" practiced by foreign nations as possible evidence that affirmative action does not further divide multi-ethnic countries—a point rebutted by Scalia, but one that shows Ginsburg’s belief that the advantages of affirmative action outweigh its disadvantages.

When the attorney defending Michigan’s racial preferences refused to provide a clear definition of the "critical mass" of minority students needed for racial diversity, Justice Souter suggested that a constitutionally "permissible zone" between token numbers and the fixed quotas banned by the Bakke (1978) ruling might be what the law school had in mind. He also questioned the theory that affirmative action stigmatizes its recipients and perpetuates the stereotypes that keep racial bigotry alive by citing surveys of minority students who did not feel the stigma of racial inferiority as beneficiaries of affirmative action. Last, Souter seemed persuaded that Michigan’s pursuit of racial diversity showed non-minorities that minorities did not all think alike.

Justice Breyer agreed with this last line of reasoning, and asked questions that showed the greatest sympathy for racial diversity as a compelling state interest in higher education. Given the extent to which blacks, Hispanics, and Native Americans suffer from poverty and segregation, Breyer thought selective schools’ desire to educate leaders to address this problem justified racial diversification of their students. His questioning was the most tone-deaf to arguments on behalf of individual rights, especially when compared with the "extraordinary need" of society for racially diverse leadership. Breyer claimed to read the equal protection clause of the 14th Amendment to protect all persons, but argued in Orwellian fashion that for "the discriminated-against people" (i.e., whites) "the law does respect you, but we are trying to help some others." With "help" like this, who needs the Constitution?!

Aside from a reference to a brief submitted by retired military officers in favor of affirmative action, Justice Stevens said little at oral argument. Stevens authored an opinion in Bakke that supported Allan Bakke’s admission to the U.C. Davis medical school on statutory grounds, deliberately avoiding reference to the 14th Amendment’s equal protection clause. Nevertheless, subsequent cases involving racial preferences found him supporting affirmative action on constitutional grounds, so there is little chance that his vote will stray from his fellow liberal justices.

Because the Supreme Court believes the question is not if racial classifications are permissible but when and how they are used, a quagmire of judicial rulings and tests obscures what should be a clear mandate of the Constitution: "No State shall… deny to any person within its jurisdiction the equal protection of the laws." The landmark Civil Rights Act of 1964 expressed this even more explicitly with regards to racial discrimination: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

We turn next to the conservative wing of the Court, and consider if enough votes will surface to refine or even reject Powell’s lone opinion for the Court in Bakke, the controversial precedent that has directed the Court for the past quarter century.

Lucas E. Morel is assistant professor of politics at Washington and Lee University in Lexington, Virginia and is an adjunct fellow at the Ashbrook Center.