Legal Watch: One Step Forward, Two Steps Bakke?

By Ann D. Springer

Courts have been struggling with this issue since the Supreme Court’s 1978 Bakke decision, but never more so than now. At the center of the debate is Justice Powell’s opinion in Bakke stating that racial diversity in a student body contributes to the "robust exchange of ideas" and thus can serve to justify affirmative action programs. This diversity argument has become crucial to affirmative action in higher education, primarily because alternative justifications require institutions to prove a history of racial discrimination. (Few places are anxious to put great effort into trumpeting their own prior discrimination!)

In response to numerous suits challenging institutions’ affirmative action programs, proponents of affirmative action have been amassing evidence of the benefits of diversity in higher education to support Justice Powell’s assumptions. The AAUP and other higher education organizations have joined the fight by filing briefs emphasizing the value of diversity. The battle is increasingly contentious; the only thing on which everyone agrees is that the Supreme Court must at some point clarify its view on affirmative action. The question is when and how.

Affirmative action supporters are taking heart from recent decisions in Michigan and Washington. Federal judges in both states recently ruled that educational diversity was a "compelling" government interest—so much so that the benefits of diversity in higher education were enough by themselves to justify an affirmative action program. Moreover, the University of Michigan has shown an impressive commitment to affirmative action and has gone to great lengths to develop an extensive record of the benefits of diversity, soliciting input from both scholars and the corporate community. Thanks to these efforts, the Michigan district court case establishes the link between educational diversity and social harmony, as companies like General Motors have taken the unprecedented step of filing briefs about the benefits they receive from a diverse labor pool.

The University of Washington appellate case, Smith v. University of Washington, is also a great victory for the diversity argument. Ironically, however, while the Washington case was pending, a state initiative went into effect that bans affirmative action in admissions, similar to California’s Proposition 209. Thus the university’s victory can’t be applied in Washington, but it will benefit institutions in the many other states under the jurisdiction of the Ninth Circuit Court of Appeals.

Unfortunately, however, decisions directly opposed to those in Washington and Michigan have also just been issued. A district court recently concluded that a University of Georgia admissions policy similar to Michigan’s was unconstitutional. Not only did the court find no evidence of significant educational benefits from diversity, but it concluded that the purported benefits are based on a stereotype—that race and gender are a proxy for viewpoint or experience.

Adding insult to injury, the U.S. Court of Appeals for the Fifth Circuit has also refused to overturn its decision in the infamous Hopwood case. The Hopwood court originally concluded that diversity could not be the basis for race-based admissions. Three years later, a second panel of the Fifth Circuit found that the first court went "beyond established Supreme Court precedent in several important respects," and employed "aggressive legal reasoning." Yet the second panel refused to overturn the original Hopwood opinion.

All of these contradictions tell us two things: first, institutions must look carefully at the law in their individual jurisdictions on this issue, and second, we are poised on the brink of a Supreme Court decision that threatens to rewrite the landscape of racial diversity in higher education. Brown v. Board of Education, Bakke, and other great cases at great moments have moved us toward a diverse and varied future rich with cross-cultural dialogue and thought. Where, oh where, are we headed now?

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