Sup. Court Turns Back Attack On Affirmative Action

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In a landmark decision handed down by the U.S. Supreme Court June 23, the justices upheld by a 5 to 4 vote, the University of Michigan's affirmative action admissions policy employed by the law school to promote educational diversity. While turning back the first major challenge to affirmative action in 25 years, the Court, in a 6 to 3 ruling, struck down the University of Michigan's undergraduate admissions system which relied on points awarded to minority applicants.

Opponents of affirmative action had a powerful ally in the Bush administration, which had sent U.S. Solicitor General Theodore Olson to argue unsuccessfully before the court that university admission systems which take race into account are unconstitutional. But a well-organized national coalition of college students, civil rights activists, members of the U.S. military and some major corporations proclaimed their support for the goal of achieving diversity and equal opportunity throughout America's institutions of higher learning.

Writing the majority opinion in the law school case, Justice Sandra Day O'Connor stated that "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." Between The Lines' Scott Harris spoke with Harvard University Professor of Law Lani Guinier, who assesses the recent Supreme Court decision viewed by many as an important victory for the civil rights struggle in America.

Lani Guinier: It's definitely a victory because the Supreme Court nailed shut, I hope permanently, but certainly for the time being, the tendency of those on the right to conflate every discussion of race with an unconstitutional or illegal or at least odious quota. So what the affirmative action decisions do is to suggest that racial diversity can be a compelling governmental interest and the fact that a governmental decision-maker is using race as one of many factors in trying to decide whom to admit to a public institution is not in and of itself a quota and in fact it's a compelling governmental interest to think about racial diversity.

Between The Lines: In the pair of decisions handed down by the Supreme Court, the justices struck down the University of Michigan's undergraduate admissions system were points were awarded for race. What impact do you think that will on universities as they try to stay within the bounds that the court actually set up here for them to comply with diversity that's constitutional?

Lani Guinier: Well I think it's an invitation for universities to be much more creative to either invest a lot of money in hiring admissions officers who can read 20,000 applications or doing something like the University of Texas at Austin has already done, which is to admit a percentage of the students around the state who are in the top 10 percent, for example, of their high school class. And given the combination of both the law school decision and the undergraduate decision, such universities, including the University of Texas at Austin, can use the top 10 percent as a pool of eligible candidates and then select from among those candidates who will contribute to the diversity of the school. So, I think there are many ways in which universities can comply with the decision.

On the other hand, I do worry that the decision makes it appear as if there's a value in being opaque about what universities are doing. In that sense, I agree with the dissent of Justice Ginsberg that honesty should be the best policy and that we shouldn't be hiding what universities are doing, we should be making sure that what they're doing is democratically accountable and there's really no discussion of that, in the court's opinion.

Between The Lines: Just a final question for you here. It seems with this very close decision in the affirmative action case before the Supreme Court, the stakes are very high when it comes to the 2004 presidential election, where it seems the next resident of the White House is going to have the power to appoint some new justices, if as we hear, some of the justices may retire in the coming years. What is at stake exactly in your view with the Supreme Court in terms of future decisions and civil liberties issues that are certainly coming to the fore now in the wake of Sept. 11 and the "Homeland Security" regime?

Lani Guinier: Most people in my situation -- that is, law professors or legal scholars, when asked that question and also human rights, civil rights and women's rights activists -- would say that the fate of the world hangs by a slender thread tied to Justice O'Connor's future on the Supreme Court because she is the key swing vote. And I don't disagree that her vote has been crucial in saving some of the advances that women and people of color have made over the past two or three decades. On the other hand, I think that her decision in the Grutter case -- in the affirmative action cases -- suggests that Supreme Court justices read the newspaper and they respond to developments in the world around them. And her decision seemed very much influenced by the overwhelming number of amicus curiae briefs that were filed suggesting that many people think diversity is a very good thing for the United States.

That says to me there's a role for ordinary people in helping to determine the fate of legal jurisprudence. This is not just about justices sitting in their black robes trying to decide what the law is, but it's also about ordinary people making it clear by their actions, by mobilizing collectively around things that they believe in, that the world is changing and that the court has to respond to those changes in the world. So, just the fact that the court overruled a decision that they had rendered in 1986 suggests that the court does respond to changing cultural norms and to efforts, to activism by ordinary people.

Contact Harvard University's Civil Rights Project at (617) 496-6367 or visit their website at http://www.civilrightsproject.Harvard.edu

Related links on our website at http://www.btlonline.org/#1hed:

- "Leading Constitutional Scholars Analyze Supreme Court's Affirmative Action Decisions; The Civil Rights Project Leaders Applaud Ruling's Upholding Use of Race to Promote Diversity," press release, Civil Rights Project at Harvard University

- "The Court's Big Week: Saving Affirmative Action and a Process for Elites to Choose Elites," by Lani Guinier, Village Voice, July 2-8, 2003

- "The Court's Big Week: Redefining The Center," by Sanford Levinson, Village Voice, July 2-8, 2003

Scott Harris is the executive producer of Between The Lines. This interview excerpt was featured on the award-winning, nationally syndicated weekly radio newsmagazine, Between The Lines (http://www.btlonline.org), for the week ending July 11, 2003.

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