Affirmative Action Lives

In one of its most important cases in decades, the Supreme Court on June 23 upheld the prerogative of colleges and universities to give preferences to members of minority groups in admissions. The Court was closely divided; it upheld the University of Michigan Law School's affirmative-action policy by a 5-to-4 vote while invalidating the university's undergraduate affirmative-action program by a 6-to-3 vote. Justice Sandra Day O'Connor was the swing vote, underscoring, if it needed underscoring, the importance of future appointments to the Court.

The Court's divisions masked what was at bottom virtually a complete victory for affirmative-action proponents. The majority ruled that "diversity" is a compelling state interest, justifying the express consideration of race in the higher-education setting. Justice O'Connor, who wrote the majority opinion, noted that racial diversity is critically important not only for its benefits to the learning process but also because universities and colleges are the stepping stones to leadership positions in our society. In her words, "in order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity." And the Court upheld an affirmative-action program that gave distinct advantages to African-American, Hispanic and Native American applicants.

The Court struck down the undergraduate program because it failed to afford an individualized consideration to all applicants. The university applied an across-the-board twenty-point boost to all underrepresented minority applicants, which had the effect of insuring the admission of virtually every qualified minority applicant. This decision will pose a challenge to larger institutions that have relied heavily on numerical factors, because it requires individualized treatment if race is to be considered. But that is a small price to pay for preserving access to colleges and universities for members of disadvantaged groups.

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