OFF TO THE RACES: The Supreme Court and Affirmative Action

Friday, February 28, 2003

The Supreme Court will soon announce its decisions on two cases that are being called the most important for affirmative action in a quarter century. These cases both challenge the use of racial preferences in the admissions policies at the University of Michigan. On one side of the legal dispute over the Michigan policies are those who argue that creating racial diversity on college campuses is a "compelling interest" that justifies the use of certain types of racial preferences in the admissions process. On the other side are those who argue that any system that rewards people solely on the basis of race is unconstitutional. Who's right? And how will the Supreme Court's decision affect the future of affirmation action?

Recorded on Friday, February 28, 2003

Peter Robinson: Today on Uncommon Knowledge, an action-packed program--affirmative action, that is.

Announcer: Funding for this program is provided by the John M. Olin Foundation and the Starr Foundation.

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Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson. Our show today, are racial preferences in university admissions unconstitutional? Now pending before the United States Supreme Court, two cases involving the admissions policies of the University of Michigan--one at the undergraduate level, one at the law school--that are being called the most important affirmative action cases in a quarter of a century. In both cases, the dispute comes down to this--on one side those who believe that creating racial diversity on campus represents a compelling interest that justifies the use of racial preferences. On the other, those who believe that any system that rewards some and punishes others on the basis of race is unconstitutional. Who's right?

Joining us today, two guests. Vik Amar is a professor of law at Hastings College of the Law. Douglas Kmiec is dean of the law school at the Catholic University of America.

Title: Bakke in Action

Peter Robinson: President George W. Bush--"The method used by the University of Michigan to achieve racial diversity is fundamentally flawed. At their core, the Michigan policies amount to a quota system that unfairly rewards or penalizes perspective students based solely on their race." Is the President correct?

Vik Amar: I don't think so. I'm not sure that the Michigan programs operate as a quota and I think the President overstates things when he says race is the only big factor being taken into account.

Peter Robinson: So the Michigan programs are constitutional?

Vik Amar: I think at least the law school program is. I have more questions about the undergraduate program, but if it were me on the Supreme Court, I probably would uphold both of them.

Doug Kmiec: I think both programs are open to serious constitutional question. I think the President is right to raise that question.

Peter Robinson: To call them a quota system?

Doug Kmiec: To call them effectively a disguised quota, that's right.

Peter Robinson: Okay, discussion of Michigan takes us back to Bakke--1978 Bakke decision. Alan Bakke applies to the medical school at the University of California at Davis, which reserved sixteen percent of its spots for minorities explicitly. He is rejected and he sues the University of California regents. Now the Supreme Court gives us a historic and baffling decision. Four justices rule that the medical school quota system was unconstitutional. Four others said that even quotas could be constitutional if imposed to help minorities overcome discrimination and the ninth and decisive justice, Lewis Powell, agreed that quotas were unconstitutional but asserted that the use of race as a "plus factor," quoting Powell, to encourage diversity could be allowed. Bakke is ordered admitted to the UC Davis Medical School on a decision which is four-four-one. Was the Bakke case correctly decided, Doug?

Doug Kmiec: Well, you have to determine what the Bakke case decided, first of all, to know whether that is correct.

Peter Robinson: Please help me.

Doug Kmiec: Fundamentally, it reaffirmed the proposition I think as a holding that race is a suspect class and that if you're going to use race in public decision making you have to have a compelling justification to do so and that justification has to be specifically or narrowly advanced in order to accomplish the goal. Justice Powell speculated in his separate opinion that race might be used in an educational setting for purposes of diversity if it was a type of individualized review--if you were looking at somebody and asking, the way he put it, has this applicant got a unique background, does he come from a unique geographic area, did he spend his life on the farm, did he have some racial experiences that might tip the balance in his favor to make it a rich educational environment? Justice Powell said that might be a possibility. He laid that out, the question for us presently, is that a sufficient constitutional justification? No Supreme Court decision has ever said so and the lower federal courts have been in great disarray ever since Justice Powell's…

Peter Robinson: Bakke not only established race as a suspect class but did rule out quotas, is that--that's unambiguous right, Doug?

Vik Amar: There are five justices in Bakke who clearly would call into question any quota; I think that's right. I also think though that it wasn't Justice Powell alone who would allow race. And I think he said maybe more than that such program might pass review, he kind of condoned the Harvard plan where race was used as a flexible plus. So I think if you take the Powell opinion and add to that the four other justices for whom Justice Brennan spoke--and remember Justice Brennan joined part of the Powell opinion--I do think you have the core holding of Bakke as it's been understood by most of the world that race can be used in a flexible way as long as it doesn't amount to a quota for the purpose of diversity.

Peter Robinson: Well, this is very nice. We have two constitutional scholars, one of them tell us that the core finding in Bakke is that race is a suspect class and the other says oh no, no, the core finding is that race can indeed be used if used very carefully.

Vik Amar: I think those things aren't inconsistent.

Peter Robinson: All right, all right. On to the specifics of the Michigan cases themselves.

Title: Admissions Admonitions

Peter Robinson: Case number one--Gratz versus Bollinger. Bollinger is, in both of these cases, he was then the president of the University of Michigan. Jennifer Gratz and Patrick Hammacher are two white students who are challenging the University of Michigan's undergraduate admissions policy. They contend they were excluded even though they had better scores than some minorities who did gain admissions. Both of them have since gone on to other schools. Grutter versus Bollinger--Barbara Grutter is a white woman who is challenging the University of Michigan's law school admissions policy. She was rejected and contends that eighty percent of minorities with scores similar to hers won admission. She didn't go to law school and still wants to go to the University of Michigan Law School. Now, so far as I understand it, we've got two fundamental legal issues here and I'd like to take them in turn, the first of which is this notion of a compelling state interest. Listen to this. I'm quoting Doug Kmiec to you. Dean Kmiec wrote recently that the University of Michigan's program is "deeply flawed," and "does not promote genuine diversity of experience or viewpoint at all but indulges the pernicious viewpoint that everyone of a given race thinks in a given way." Vik?

Vik Amar: Well again, speaking mostly about the law school program first, I don't know that I would agree with that characterization. The law school is not saying, and none of these universities are saying when they take race into account, that race dictates or equates with a point of view. They're not saying there's a black perspective on the commerce clause of the Constitution. They're saying that race and gender and geography and rural versus urban status, all of these things might bear on the kind of individual perspective that someone brings in a classroom. So they're not talking about a monolithic group point of view and they're not saying that race is the only thing that influences the kind of beliefs and attitudes we might have, but that race is one thing and that it can be taken into account.

Doug Kmiec: You have to look at--the way Vik describes it makes it much more palatable, but when you actually look at it on the ground the practical reality of how the Michigan law school is accepting people, people indicate on a form what race they are. Suddenly there is a different set of criteria that apply to them than apply to other students merely because they're within a favored race. It's very clear everybody agrees to this in terms of the facts that, you know, if you had a 164 on the LSAT, a reasonably good score, you know, in the upper ranges, you would have a twenty-two percent chance if you were white or Asian of getting in that school, you would have a hundred percent chance if you were an African American, a Native American, or one of the other favored groups.

Peter Robinson: I have one example here from the undergraduate side, you just mentioned the law school, minority students automatically receive twenty points toward the one hundred point total needed for admission--for a point of comparison, on a good SAT score, indeed even a perfect SAT score, will only give a student twelve points. So race is once and a half times worth a perfect SAT score.

Doug Kmiec: Right, and your viewers need to know we've got two different cases here. We've got one against the law school, one against the undergraduate school, two different methods of review. The law school says it's looking for a critical mass, and that's kind of an interesting bit of terminology. It has a certainly reasonableness to it, but then you discover as you--one of the reporters who has been following this case did a freedom of information request and discovered that there was a kind of a secret memo where the faculty had agreed that the critical mass would always be ten percent or a little bit more than that. Suddenly this starts to look an awful lot like the quota in Bakke, unfortunately. And then on the undergraduate side you've got this point spread, and it's interesting, they do award points for all sorts of different things, but the points for race are twenty points flat out. You need a hundred points to be automatically admitted. If you're in the eighty to a hundred range you have a chance of being admitted. Twenty points is of enormous significance in terms of weighing the outcome.

Vik Amar: I mean, I think that there's something to that, which is why I say I think the undergraduate case is probably a little tougher sell because the size of the plus is bigger. But in both undergraduate and law school, let's be clear, the University of Michigan is taking race into account in a significant way. These pluses are not trivial. Justice Powell in Bakke never said that a plus could only be a tiebreaker, it could never do significant work. The bottom line is, unless you use significant pluses, and the Law School Admissions Council and the University of Michigan and all competitive law schools kind of have proven this, you're not going to have any significant representation of African American and Latino…

Peter Robinson: Let's get back to this question of a compelling state interest.

Title: Reach Out and Touch Someone

Peter Robinson: Is diversity in university admissions something that you, as lawyers, would term a compelling interest?

Doug Kmiec: I think it's an important interest. I'm going to slide past the word compelling because I don't think in fact it meets. Now the briefing that the Solicitor General did and that the President did didn't address this question because they said we don't need to answer the question on that score because there are so many race-neutral alternatives...

Peter Robinson: But if they were on this show I would make them answer it, Doug.

Doug Kmiec: Yeah, but you have to look at it the way the Supreme Court is going to say. They're not going to reach out for a constitutional question they don't have to answer. And what the Solicitor General has basically said is if you can get a diverse class--and everybody admits that diversity adds to the robustness of a discussion, if you actually do have diverse viewpoints and people from different backgrounds--if you can get that through race-neutral means, you have a constitutional obligation to do that first. And I don't think what we've been describing about the University of Michigan suggests that they have explored these race-neutral means. Now, Vik has written in some essays very thoughtfully that these race neutral means are not without problems. They're difficult to implement, they give you a different kind of diversity. But that said, I think there's a constitutional obligation to go there first. And therefore my answer to you, Peter, is no they haven't met their compelling governmental standard because they haven't fashioned a narrowly tailored program to get diversity without race.

Vik Amar: The Solicitor General, President Bush's filings…

Peter Robinson: The Solicitor General represents the government of the United States before the Supreme Court.

Vik Amar: That's right. As Doug pointed out, the Solicitor General purported not to take a position on whether race could ever be used as a compelling interest because there were these so-called race-neutral means, but they're always going to be these kinds of race-neutral means, so effectively the Solicitor General is saying you can never take race in account.

Peter Robinson: Tell us what you mean by race-neutral means.

Vik Amar: Okay, what we're talking about here are the so-called "percentage plans" that have been used in Texas, Florida, and California after the abolition of good old fashioned race-conscience affirmative action. Here in California that came about as a result of Proposition 209. In Texas it came about as a result of a decision by the Fifth Circuit Court of Appeals that struck down the University of Texas Law School admissions program and held that Bakke never authorized race to be taken into account for diversity purposes because Powell wrote only for himself--I think that was a misreading of Bakke. And then Governor Bush and the Legislature of Florida also got rid of old-fashioned affirmative action. So then what these states did is they moved to a system where the top graduating students defined in terms of GPA only from various high schools, would have access to the university.

Peter Robinson: Top ten percent in Texas have automatic admission to the University of Texas system if they want it, and here in California it's the top four percent get into the UC system if they want that.

Vik Amar: That's right. And so what the Solicitor General is saying is that those programs of de-emphasizing the SAT and extracurricular activities and exalting high school grades, that when you change the criteria of admission that might yield a more racially diverse class and that's a better way to go and until that way is proven unworkable, you can't resort to the kind of program that Michigan has, that UC Davis had, where you take race into account at the individual applicant level.

Peter Robinson: Right. Right. And you…

Vik Amar: I think that's problematic first of all because there's no way a law school can use a percentage plan the way an undergraduate system can. The University of Michigan Law School draws from an applicant pool as Boalt or Hastings here in California do, that's nation wide. And so for U of M to say we're going to take the top one percent of college graduating seniors defined by GPA, that just wouldn't work.

Peter Robinson: Hold on, he's nodding, do you grant that one?

Doug Kmiec: Well, I grant the problem with that particular program, but there are other race-neutral means. You can focus on disadvantage, you can focus on urban background, you can focus a lot of ways and still have a nationally-based program and not focus on merely skin color or race or ethnicity.

Vik Amar: The problem with that is holding socioeconomic status, holding kind of disadvantagment constant, the demographic reality is that applicants of color have lower scores and grades in every one of those categories. So you cannot accomplish any meaningful racial diversity without taking race into account.

Doug Kmiec: And here's a really irony about the educational benefit that is said to be available to the University of Michigan. Michigan says we're an elite law school, we're an elite undergraduate school, we get the top people to apply to us and therefore…

Peter Robinson: And that's not idle boasting, by any measure they really are.

Doug Kmiec: That's right, but they say two things in their briefing. They say we're this very special place that get all of these very fine students and interestingly, we get the cream--we get the top minority students in the country and they're aren't, numerically as Vik just pointed out, that many. Notice what's happening--Michigan says we can lower our standards a little bit or pretty significantly for Michigan and get a diverse class, but we don't have to really give up our academic mission, our high-level of academic standard. But what about the schools that aren't as fortunate as Michigan? Does that yield both a simultaneous fulfillment of the academic mission of a university as well as diversity? And here's another thing--there are a good number of empirical studies now that say you lower the bar, you are predicting the performance of the people you bring in--that if you lower the bar, you in essence invite them to do less well.

Peter Robinson: Let's take a step back and look at the broader issue of race and the Constitution.

Title: Unchained Melody

Peter Robinson: Fourteenth Amendment of the Constitution ratified after the Civil War--"All persons born or naturalized in the United States are citizens of the United States." In other words, from this point on, we're going to be treating everybody fairly regardless of race. Okay? Two fundamental views of what that means. One is colorblindness--race is simply not to be permitted as a criterion for important decisions in our public life. The other view, Lyndon Johnson, 1965--"It is not enough to take a person who for years has been hobbled by chains to the starting line of a race and then say, you are free to compete with the others." In other words, to make up for the effects of past discrimination, you have to help those who are suffering from those effects--affirmative action. How do you think through those two different views as they apply to the notion of equal protection in the constitution?

Vik Amar: I actually think one of the biggest problems with the current Supreme Court's attitude towards race-based affirmative action is that the majority of the Supreme Court purports to care a lot about original intent and what the framers expected. And yet the very people who wrote the Equal Protection Clause and the rest of the Fourteenth Amendment in Congress, engaged in race-based affirmative action, not just for the newly freed slaves, but for all colored destitute people, for colored people who fought in the Union army, got benefits. So I don't understand how this…

Peter Robinson: So the notion that back in the 1870--what was the date of the Fourteenth Amendment?

Vik Amar: 1868 is the Fourteenth Amendment.

Peter Robinson: 1868.

Vik Amar: But before 1868 and shortly thereafter, Congress itself engaged in race-based affirmative action.

Peter Robinson: So the notion that nobody had in his head in 1868, the idea of affirmative action, that wouldn't come along for another century, is simply ahistorical.

Vik Amar: It's a different kind of affirmative action than we have today, but…

Peter Robinson: But they were up to it.

Vik Amar: They took into account race as a formal explicit matter in the doling out of certain benefits.

Doug Kmiec: I want to take--two footnotes that I want to add. Vik is talking about the race-based actions that took place contemporaneous with the Fourteenth Amendment. It was in fact reparation, rectification for this enormous harm of slavery, this enormous imposition on one's personal freedom that that represented. In fact, there were debates surrounding the Fourteenth Amendment as to whether or not that was appropriate. A good number of people thought it was entirely inappropriate and one of the reasons why…

Peter Robinson: The Fourteenth Amendment or reparations?

Doug Kmiec: The reparations being specifically race based even in the face of the need to give reparation for slavery. And so they enlarged the class to include not just blacks, the recently freed blacks, but also the white refuges who had been sympathizers with the blacks and who were poor. And to that degree they made--you can find these quotes in the Fourteenth Amendment debates that they intended the Equal Protection Clause to be white or black. They singled out the black man for their primary discussion because he was the most oppressed, but they intended it to be equality for all.

Peter Robinson: So right from the get-go they were sensitive to these questions of race and of making decisions based solely on race.

Vik Amar: And yet they rejected color blindness in the words they chose for the Fourteenth Amendment. And they adopted laws…

Peter Robinson: Do we know that from the--that there was a much more directly color blind way of putting it?

Vik Amar: The Fifteenth Amendment speaks directly in terms of race. It says you can't discriminate on the basis on race and the right to vote. The Fifteenth Amendment came right after the Fourteenth Amendment. They weren't unaware of the concept of race, of the semantic usage of the word race, and yet they rejected that in favor of a broader theoretical language of equality. And it's true, Doug's right, that they did sometimes take into account the plight of poor and disadvantaged whites, but there were statutes that were race specific, that singled out colored persons for special benefits.

Peter Robinson: So you've got these two fundamentally different notions of what it means to treat people fairly as citizens of the United States. As a constitutional scholar, how do you go about sorting them all--sorting through the two different views?

Doug Kmiec: I think you do start with the constitutional history. I do think you start with the text. My examination of the text and history suggests that in fact whatever race-specific things were done immediately after the Amendment were meant as a remedy and that the modern jurisprudence is largely consistent with that. The Supreme Court has said race is going to be off limits generally unless you've got a compelling interest. And the only compelling interest the Supreme Court has thus far recognized is remedying prior discrimination in a very carefully, narrowly tailored fashion. What is happening in these Michigan cases is they're seeking to push it beyond that. It's very troubling when Barbara Grutter goes to the law school admissions window and she's basically told by the admissions officer, well you would be admitted if you were a different color. That came out of the oral argument--Judge Boggs said to the University of Michigan's counsel, if Barbara Grutter was an African American, would you admit her? Answer, yes.

Vik Amar: Doug is right. It's a zero-sum game, when you admit somebody, you can't admit somebody else. And no one denies that race is being used in these programs in a way that changes the results. If we didn't need to use race, we wouldn't, but if we didn't use race, then Barbara Grutter would get in, but we'd have no people of color in the top law school…

Peter Robinson: Last topic, how should and how will the Supreme Court decide the Michigan cases?

Title: I'll Go Tally the Votes

Peter Robinson: How do you vote, on both cases, but first on the undergraduate case?

Vik Amar: I think if I take settled law as a given, if I take Bakke as a given, I actually do think there's an argument that the undergraduate admissions program takes race into account too aggressively, that twenty points automatically comes close to being a quota and so I'm troubled by that.

Peter Robinson: Can I ask you if it were ten points--I mean, is this just a question of finding a place with which you feel comfortable in some sort of sliding scale?

Vik Amar: All constitutional law is finding a place where you feel--it's the essence of law to draw tough lines. I think ten points would be a lot more defensible than twenty points. I think the law school program, because it is not…

Peter Robinson: Hold on, you voted down--you voted the undergraduate…

Vik Amar: I said I am troubled by it.

Peter Robinson: All right, so you don't have the guts to write the majority opinion, but you'll concur. What about you?

Doug Kmiec: I'm writing the majority opinion; I think it's not satisfying of the constitutional requirements.

Peter Robinson: And that's all you want to say or do you want to make, and especially forceful--do you want to cut a little new legal ground here in your opinion?

Doug Kmiec: I don't think it's necessary to cut new legal ground. I think it's necessary to say Bakke didn't decide this question, we don't have to determine what the specific meaning of diversity from Bakke is because it's not directly in front of us, because this program constructed by the University of Michigan is so crude in the manner in which it takes into account race, it doesn't pass constitutional muster on a lesser ground.

Peter Robinson: You're troubles, he's outraged. Okay, now to the law school case.

Vik Amar: The law school program I think is much more defensible, I would clearly uphold that.

Peter Robinson: Clearly, no problem.

Vik Amar: No problem for me. Now one response to something Doug has mentioned and we talked about before, whether these percent plans are a better way to go. Not only the percent plan is not going to work in a law school setting, but I think the percent plans are just as race-conscious as affirmative action programs--that we move to the percent plans in order to accomplish racial diversity. If anything, the percent plans are a more dishonest, more kind of underground way of taking race into account that I think is more troubling not less troubling. I actually think the SG gets it exactly wrong.

Peter Robinson: How do you vote on the law school?

Doug Kmiec: I think the law school loses as well. I think the law school--the memorandum that shows that they're consistently after a particular percentage, the fact that year after year they get that percentage, and the fact that the way they get that percentage is by enormous statistical disparities, very high standards for white and Asian students, very relaxed standards for African American students, is just not going to cut it.

Vik Amar: We have to be socially honest that there's an enormous achievement gap based on race and we've got to address that. And one of the things that affirmative action, in the way Michigan has carried it out is it just papers over that. It just adds numbers based on group membership. The fact of the matter is in grades K through 12, there's an enormous disparity between black and white in this country in terms of educational achievement. We have to--one of the salutary things that's happened in California and Texas and Florida is that since that's off limits, people have said well, we want diversity, we don't want our public institutions to be one color and to be univocal in their ideas, we have to figure out a way to legitimately expand that pool and that means we have to find a way to improve educational achievement. I don't think…

Peter Robinson: Amazingly enough, the educators are forced to educate, that's the idea.

Doug Kmiec: How about that?

Peter Robinson: Last question gentlemen, how will the Court decide the undergraduate case? Call if for me.

Vik Amar: My guess is that O'Conner will probably vote with the more conservative four to strike it down.

Peter Robinson: So it would be a five-four to strike it down?

Vik Amar: Yeah, they'll both be five-four in some way or another.

Doug Kmiec: I concur, five to four, they'll both be defeated. I hope that's not the end of the discussion.

Peter Robinson: Five-four on the law school case as well?

Vik Amar: Yes, but perhaps O'Connor goes the other way, I'm not sure.

Peter Robinson: Ah, I see, so once again, we have to watch Sandra Day O'Connor. Ah, that woman has the whole nation like this. Vik, Doug, thank you very much. I'm Peter Robinson, for Uncommon Knowledge, thanks for joining us.