What the Supreme Court Left Out


In the 1978 Bakke case—the first Supreme Court decision on affirmative action in college admissions—the Court was severely divided (4-4) on whether any racial preferences were constitutional under the “equal protection of the laws” clause of the Fourteenth Amendment.

The decisive vote was by Justice Lewis Powell, who ruled that race could be taken into account, but only among many other factors. In his long, carefully nuanced decision, Powell emphasized that race could not be the deciding factor.

On the rather frail reed of this one justice’s opinion, affirmative action in college admissions has been challenged, sometimes successfully, in lower courts, and twice has been voted down, by initiatives, in California and the state of Washington.

But after 1978, the Supreme Court of the United States did not speak again until June 23, 2003, when it ruled in two University of Michigan cases—one involving the law school (Grutter v. Bollinger), and the other the undergraduate schools (Gratz v. Bollinger).

The use of racial and ethnic preferences in undergraduate admissions (Gratz) was struck down because of Michigan’s mechanical use of specific additional points of advantage for “underrepresented” applicants. A black applicant, for example, received 20 points just for being black.

However, in the law school case, Justice Sandra Day O’Connor, in her deciding ruling in the 5-4 decision, stressed that the “plus factor”—as Lewis Powell had called it—was narrowly tailored to provide a compelling constitutional interest. The minority applicants were individually interviewed and their “holistic” records were examined, and so, she emphasized, the process was “flexible enough to consider all pertinent elements of diversity in the light of the particular qualifications of each applicant.”

Opponents have condemned affirmative action throughout college admissions as an unconstitutional “quota system.” But the law school policy, Justice O’Connor assured the nation, is not a quota system.

Ignored in O’Connor’s ruling—and in all the extensive media coverage of her resounding decision I’ve seen—is the plain fact that the University of Michigan’s law school admissions policy directly contradicts Lewis Powell’s definition of a “plus factor” in Bakke. Giving an advantage to the underrepresented could not, he said, assure the admission of “some specified percentage of students” of a particular race. That would make race a “deciding factor.”

When Grutter v. Bollinger was in Federal District Court, Judge Bernard Friedman had declared the law school’s admissions policy unconstitutional because it used “race to ensure the enrollment of a certain minimum percentage of underrepresented minority students [making] the current admissions policy practically indistinguishable from a quota system. . . .

“The law school,” Judge Friedman continued, “has an unwritten policy of constituting each entering class so that at least 10-12 percent are students from underrepresented minority groups. . . . [Therefore,] students of all races are not competing against one another for each seat, with race being simply one factor among many which ‘may tip the balance’ in particular cases.” (Emphasis added.)

In her decision, overruling Judge Friedman, Sandra Day O’Connor did not specifically mention all of Judge Friedman’s findings of fact in the very admission records that the University of Michigan had submitted to his court. O’Connor is a conscientious jurist, and I cannot imagine her not having read the Federal District Court decision in this case, particularly its findings of fact.

In many editorials and other commentaries congratulating O’Connor for keeping alive and strengthening the principles of “diversity” established by Lewis Powell (her mentor on the Supreme Court) in his Bakke swing vote, none of them cited—nor had she—Judge Bernard Friedman’s very pointed reference to Powell when Friedman ruled the law school’s policy unconstitutional:

“The reservation of some seats for applications of particular races, and the attendant lack of competition for those seats, was the principal reason [in 1978] Justice Powell found [University of California at] Davis’ quota system unconstitutional.” (Emphasis added.)

In her decision vigorously affirming the constitutionality of the law school’s racial preferences, Justice O’Connor wrote that the plan placed the underrepresented applicants “on the same footing for consideration” with all the others, “although not necessarily according [them] the same weight.”

But that’s OK, she added, because those applications were individually considered. Giving them places over white or Asian American applicants was just a legitimate “plus factor,” as authorized by Lewis Powell.

However, let’s look at the University of Michigan Law School’s own records. I don’t expect that Justice O’Connor reads the Voice, but it’s possible that one of her clerks looks at The New York Times‘ references to very high-profile pending cases.

In my March 14 Voice column (“Left Out of Affirmative Action”), I cited reporter Jacques Steinberg’s February 2 New York Times story, saying that in 1999, the University of Michigan Law School “accepted only one of the 61 Asian Americans, or 2 percent, who were ranked in the middle range of the applicant pools, as defined by their grades and test scores, according to court filings. The admission rate for whites with similar grades and scores was 3 percent. But among black applicants with similar transcripts, 22 out of 27, or 81 percent, were offered admission.” (Emphasis added.)

If Justice Lewis Powell had seen undergraduate or graduate school records with those comparative numbers of the admitted and rejected—in the context of a quota system—he would, on the basis of his “plus factor” ruling in Bakke, have declared those admissions policies clearly unconstitutional. And they are!

But Justice Sandra Day O’Connor knew how she wanted this case to be decided. And so, the record has been “tailored”—though not so narrowly. There were over 300 amicus briefs in these two University of Michigan cases.

But how likely is it that O’Connor failed to read at least the brief by Kirk Kolbo, the lawyer of record for the plaintiff in Grutter v. Bollinger? Judge Friedman’s findings of fact, as cited above, were extensively quoted in Kolbo’s brief. But the many media stories I’ve seen about this “landmark” decision did not mention that either.