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HR and Tax Newsletter-August 2003

Supreme Court Upholds Affirmative Action in Narrow Circumstances

A closely divided Supreme Court has upheld the affirmative action program for the University of Michigan Law School; on the same day a broader majority of the court struck down the affirmative action program for the College of Arts and Sciences at the University of Michigan. Grutter v. Bollinger; Gratz v. Bollinger. Both decisions have received wide press coverage of varying accuracy. HR professionals need to understand the Court's current thinking on this important issue.

Some things are clear:

A majority of the Court believes that a mechanical system that gives an automatic preference based on race is unconstitutional. This is so even if a school claims that it is seeking students with diverse backgrounds. Because the University of Michigan gave minority students an automatic 20 points without considering whether their backgrounds truly increased student diversity, a majority of the Court held it unconstitutional.

Racial quotas or disguised racial quotas are unconstitutional.

A majority of the Court believes that a system that seeks diversity must be designed so that other factors that contribute to diversity such as artistic talent can potentially trump race. The Court found the University of Michigan system deficient because a white student with extraordinary artistic talent could never get a award of diversity points that a black student could get merely for being black.

It is not a defense to assert that the individualized consideration envisioned by the Court is tough to administer.

An otherwise unconstitutional admissions process is not made constitutional by the addition of a Committee that provides an individualized review in selected cases.

The Court also provided guidance as to what is now constitutional. However, the Court also took the unusual step of pointing out what is now constitutional is not expected to work in the future. For example, Justice O'Connor (who cast the deciding vote) floated the idea of a phase out of affirmative action after 25 years. In any event, the Court has concluded that the following rules apply for the time being.

Attaining diversity in a student body is a sufficiently strong interest to justify a limited use of race in determining who is admitted to public universities.

The protected diversity interest goes beyond race or ethnic origin. Race or ethnic origin is an important element of that diversity, but other things such as unique artistic talent count just as much.

A program that tries to achieve diversity and which uses race as a criteria must be carefully tailored to achieve diversity (not just racial diversity). The law school's program met that requirement because:

Attaining a diverse student body was a core component of the school's educational mission because it provided exposure to different views.

Each applicant was evaluated on an individual basis.

Although race and ethnicity was used as a plus factor the law school could show that other diversity factors besides race were given substantial weight.

The Court decided that the law schools efforts to create a critical mass of under-represented minority students was not an unconstitutional quota. This decision seems to have been vigorously debated. As support for its conclusion the majority cited statistics that showed that the actual enrollment of under-represented minority students varied from 13.5% to 20% over a seven year period.

Grutter is interesting in that the Court concluded that affirmative action programs are not limited to remedying past discrimination, which many top flight lawyers believed to be the case. They can be used to further the goal of attaining a diverse student body.