The issue of affirmative action in higher education grabbed headlines last week when a federal appeals court in Atlanta threw out the University of Georgia’s (UGA) use of race in undergraduate admissions. Conservatives embraced the ruling as evidence that the days of affirmative action as a tool for engineering diversity on America’s campuses are numbered. But their enthusiasm is premature: The reasoning behind the UGA decision suggests that there is less here than meets the (anti-affirmative action) eye.
The Georgia ruling is the latest in a series of recent court decisions wrestling with race in university admissions. In 1996, an appeals court rejected the use of race in admissions at the University of Texas. Last year in Michigan, a federal judge upheld the use of race in undergraduate admissions at the University of Michigan, but a few months later another judge threw out the system used at Michigan’s law school. Meanwhile, an appeals court last December okayed a system of race-conscious admissions at the law school of the University of Washington.
All of these cases turn on the legal doctrine of “strict scrutiny”—an exacting standard sometimes used to evaluate the constitutional merits of a remedy (the remedy here being affirmative action). Strict scrutiny isn’t always the necessary yardstick, but it is appropriate when distinctions by race are involved. As the Supreme Court declared in 1995, racial classifications “are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Meaning: For a court to uphold a university’s affirmative action policy, it must decide first that affirmative action goals satisfy some compelling state interest, and second, that the policy in practice is designed narrowly to fulfill that interest.
In the Georgia case, the court declined to say whether UGA’s diversity goals qualify as a compelling state interest. It ruled instead that UGA’s policy, which systematically added points to an admissions formula for each non-white applicant, is so consummately deficient as a narrowly tailored remedy that it would be unlawful no matter how compelling the underlying interest. Thus, although the court said the UGA system is an unlawful way to promote campus diversity, it took no position on the question of whether a compelling state interest in campus diversity actually exists.
The legal backdrop here is the famous 1978 Bakke case, in which the Supreme Court rejected a California medical school’s two-track admissions system that managed white and minority applicants separately. Although the medical school lost the case, the important and enduring aspect of the decision was the court’s opinion that race-conscious admissions can be justified when minority underrepresentation is “substantial and chronic.”
Since then, universities have crafted affirmative action policies to fit the contours of Justice Lewis Powell’s opinion in the Bakke case. Holding that campus diversity is a compelling interest, Powell wrote that an applicant’s race is “one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body.” But the Bakke decision was splintered, and Powell’s opinion, which has profoundly shaped the landscape of affirmative action ever since, carried only Powell’s name—no other justice signed on.
The Bakke decision clearly rejected quotas, but affirmative action opponents persist in the belief that quotas are the game universities play. The Wall Street Journal editorialized last week that “even as Bakke squelched outright quotas, it spawned a complex, back-door system for accomplishing the same thing” (an example being the UGA point system, according to the Journal). But there is no evidence that UGA’s clumsily systematic approach is used widely elsewhere.
Universities practicing affirmative action the right way understand that vestiges of discrimination are stubborn and enduring. UGA had no black students until the 1960s, and even today African American enrollment at Georgia’s flagship campus is only 6 percent in a state that is more than 28 percent black. Yet universities persist in relying on flawed standardized tests that misrepresent minority achievement. Meanwhile, it certainly cannot be argued credibly that primary and secondary educational opportunities are equivalent across racial lines. Affirmative action opponents also remain conspicuously unfussed by favoritism that admissions offices routinely show to children of alumni, who inevitably are disproportionately white at places like UGA where black enrollment is both recent and scant. Properly practiced, affirmative action does not lower standards for minorities, as opponents claim; it simply recalibrates a subjective process of judging the complex array of credentials that admissions offices must weigh.
The Supreme Court thus far has refused to join this latest fray on race in higher education, having most recently passed on appeals in the Texas and Washington cases. But on the crucial question of whether campus diversity is a compelling state interest, there is disagreement brewing in the federal courts, and the Supremes are more likely to accept an appeal to resolve conflicts across the circuits. The Georgia case may not be the right one because it largely circumvented this issue. But there are sure to be other opportunities—from Michigan or elsewhere—and when it happens, the legacy of Bakke, and our collective commitment to equal opportunity in higher education, will finally get its day in court.
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