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Confusion Surrounds Affirmative Action
A recent court decision has added to the confusion surrounding the legality of affirmative action in higher education. In March the U.S. District Court for the Eastern District of Michigan issued an opinion in Grutter v. Regents of the University of Michigan, one of two suits against the University of Michigan challenging the use of affirmative action in admissions. Judge Bernard A. Friedman’s opinion disappointed affirmative action advocates, who had taken hope from recent favorable decisions (see the Legal Watch column in the March–April 2001 issue of Academe).
In Grutter, which dealt with admissions at the UM law school, Friedman concluded that the law school’s aim of assembling a racially diverse student population was not a "compelling state interest," that "an admissions policy that treats any applicants differently from others on account of their race is unfair and unconstitutional," and that the university’s use of race as a factor in admissions decisions amounted to an unconstitutional quota system.
In reaching this decision, Friedman repudiated principles stemming from the 1978 Supreme Court ruling in Regents of the University of California v. Bakke, which many institutions have used as a guideline. In Bakke the Court said that race could be used in making admissions decisions as long as specific numbers of places were not reserved for minority students.
Friedman’s opinion also directly contradicts the opinion issued in December by a different judge in the same court. In Gratz v. Regents of the University of Michigan, a case involving undergraduate admissions policies, Judge Patrick Duggan found that_diversity in higher education was a compelling state interest and that Michigan’s undergraduate admissions program, which treats race as one of several "plus" factors, was constitutional. Instead of allotting a number of spaces for minority candidates, Michigan admits students on a points system wherein economic status, race, athletic prowess, alumni parents, and regional origin can all be used as the basis for awarding extra points to a candidate.
The conflicting opinions have been appealed to the Sixth Circuit Court of Appeals, and the two Michigan lawsuits are widely viewed as the preeminent test cases for affirmative action, especially for the argument that diversity in higher education is a compelling state interest.
Observers agree that the ongoing split in the circuit courts over affirmative action must eventually be resolved by the U.S. Supreme Court, which in May declined to review a case involving the University of Washington. By declining, the court let stand a ruling finding diversity to be an adequate justification for using race as an admissions factor. "The admissions policies at issue are not significantly different from each other; rather, courts are all reading the same precedent and interpreting it differently. This is the prototypical example of a case ripe for Supreme Court review," notes Ann Springer, the AAUP’s associate counsel.
Along with the American Council on Education and other higher education organizations, the AAUP signed friend-of-the-court briefs focusing on the educational benefits of racial diversity in both Michigan cases, as well as in cases in Georgia, Washington, and Texas.
For a summary of current law on affirmative action in higher education, visit the AAUP’s Web site.
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