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.
The victory for affirmative action does not dispel the fact that today’s Supreme Court is a far-right institution. Only two Justices–David Souter and Ruth Bader Ginsburg–took the position that we advocate, namely, that programs that give an advantage to members of minority groups should not be subject to the same heightened suspicion that the Court applies to laws that disadvantage minorities. A solid majority still purports to take a colorblind view of the equal protection clause, a view hopelessly out of touch with the fact that considering a minority applicant’s race as a positive factor in admissions in the interest of diversity or integration is entirely different from holding a minority applicant’s race against her. But today’s decision, the first in which a majority of the Court has upheld an affirmative-action policy under strict scrutiny, reveals that even those who profess to believe in colorblindness recognize that in our society, as the Court put it, “race unfortunately still matters.”
Justice O’Connor closed her opinion by noting that there should be no need for affirmative action twenty-five years from now. We’ll see. If her hope has any chance of fruition, however, it will first require a truly radical commitment to remedying the gulf in resources and opportunities between white and black, rich and poor, that afflicts every segment of this nation. And right now the governing party is doing all in its power to widen, not to bridge, that gulf.