Court Issues Split Decisions
In Affirmative-Action Cases

WASHINGTON -- The U.S. Supreme Court, in two split decisions related to University of Michigan application policies, clarified that public tax-supported universities may narrowly use race as a factor in admissions.

In separate cases, a sharply divided high court ruled that Congress can force the nation's public libraries to equip computers with antipornography filters, and the justices struck down a law intended to help Holocaust survivors collect on insurance policies from the Nazi era. (See related article¹.)

The Supreme Court's ruling that universities can give preferences to minority students almost certainly will affect admissions practices, scholarships, and career-boosting internships and research fellowships at colleges around the country. As broadly interpreted, the ruling also likely will set the tone on race relations in schools and workplaces for years to come.

The court Monday approved a University of Michigan law school system that gives minority applicants an edge in the admissions decision-making process. But the high court struck down a broad point system used by the university's undergraduate program that assigns points for minority status. The ruling on the undergraduate program was 6-3.

Sandra Day O'Connor, writing for the majority on the 5-4 law-school case, said that the Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."

The ruling affects tax-supported schools that have looked for ways to boost minority enrollment without violating the Constitution's guarantee against discrimination. Private schools and other institutions will look to the ruling in developing their policies.

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Many large companies that have spent years developing voluntary affirmative-action plans filed briefs supporting Michigan. The court's decision sends the signal that any corporate hiring or advancement program that resembles a quota system won't be legally defensible. Businesses likely will interpret the ruling to support many existing hiring practices that take race into consideration to promote workplace diversity. (See related article¹⁴.)

"The Court's decision is a resounding vindication for the fundamental principle that affirmative action can be used in education to promote equality of opportunity for all students and encourage interaction among students of diverse backgrounds," said Sen. Edward M. Kennedy (D., Mass.).

The University of Michigan cases are the most significant test of affirmative action to reach the court in a generation. At issue was whether racial preference programs unconstitutionally discriminate against white students.

The Supreme Court last ruled on affirmative action in college admissions in the 1978 Bakke decision. Then, a sharply divided court decided that colleges could design admissions programs that take race into account if they could prove that diversity was a "compelling" state interest and the programs were "narrowly tailored."

The two Michigan lawsuits were brought in 1996 and 1997 by white students who were denied admission to the university's undergraduate and law schools. More than 100 briefs were filed defending Michigan's admissions policies. But the Bush administration weighed in on the other side, defending the white students' demands for race-neutral admissions policies.

Polls show Americans overwhelmingly opposed giving minorities job, promotion or university-admissions preferences, but also were overwhelmingly in favor of diversity. When a federal court ordered the University of Texas to end affirmative action seven years ago, there was a lot of hostility. The court's Michigan decision, which supports some preferential treatment for minorities, is not expected to create a major backlash.

But the decision wasn't applauded everywhere. The Supreme Court today "gave us the worst of both worlds when it comes to affirmative action," said Nancy Pfotenhauer, president of the Independent Women's Forum. "By striking down the point system at the University of Michigan, while at the same time approving of the use of diversity as a rationale for government sponsored discrimination, the court has guaranteed increased litigation and confusion."

President Bush applauded the decisions, saying they "seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law."

"There are innovative and proven ways for colleges and universities to reflect our diversity without using racial quotas," the president said in a written statement. "The court has made clear that colleges and universities must engage in a serious, good faith consideration of workable race-neutral alternatives."

Only a few hundred of the country's 4,182 colleges and universities get so many applications that they must choose among students; the others take almost everyone who applies. What's at stake at all schools are scholarships that are targeted or even limited to minorities.

Almost half of all public colleges and 43% of private ones use race in deciding on which candidates to give scholarships, says the National Association of Student Financial Aid Administrators. Public colleges use 5% of their scholarship money to target minorities exclusively, the group adds.

Affirmative-action programs and minority set-asides in government contracting once enjoyed broad legal latitude, including a 1979 Supreme Court ruling that said they could be used to correct "manifest imbalances" in job opportunities, as long as they were temporary and didn't "unnecessarily trammel" the rights of whites.

But since then, lower-court decisions have chipped away at these programs. In 1989, the Supreme Court ruled that state and local government couldn't steer business to minority contractors except to remedy specific instances of past discrimination. A decade later, fearing a definitive ruling against affirmative action, civil-rights groups helped pay to settle the case of a white New Jersey teacher who was laid off so that an equally qualified black teacher could keep her job. A federal appeals court had ruled in favor of the white teacher.

Legal advocacy groups opposed to affirmative action have said they will read the Michigan case closely in search of any signal that leaves private employers more open to litigation. The Center for Equal Opportunity, a conservative Sterling, Va., advocacy group, says it already has written to several employers who advertised for minority job candidates, complaining that race-specific recruiting is inconsistent with the Civil Rights Act of 1964.

Terence J. Pell, president of the group, which represented the white defendants in the Michigan cases, also said he believes the ruling will lead to more ballot initiatives by states outlawing affirmative action. "The Supreme Court doesn't have the last word. It doesn't mean that states on their own can't decide affirmative action runs counter to their education policy or public opinion." (The law school case is Grutter v. Bollinger, and the undergraduate case is Gratz v. Bollinger.)

Write to Michael Schroeder at Mike.Schroeder@wsj.com¹⁹ and June Kronholz at june.krunholz@wsj.com²⁰

Updated June 23, 2003 10:04 p.m.