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Supreme Commentary

Supreme CommentaryQ: Do you think the Supreme Court’s decisions in the University of Michigan cases provide clear and specific guidance to colleges and universities on the use of race in academic admissions? Why or why not?”The court’s decision does not provide clear guidance on how to admit students, but it does make it clear that race can be taken into consideration. This is very important. The ambiguity is actually helpful because it allows for greater discretion by admissions offices as to how race can be a factor. Those places with a genuine interest in diversity should be able to effectively use race as an admissions factor. The only negative is that places where there isn’t a commitment to diversity still have nothing to force them to commit. They can dodge the whole thing.”
— Dr. Pedro Noguera, Professor,
Harvard University Graduate School of Education
“The court has not given clear guidance. We have no choice but to proceed on a school-by-school, state-by-state basis to make sure illegal discrimination is not occurring. We also hope the Bush administration gets involved and that the court decision is followed.”— Roger Clegg, Counsel,
Center for Equal Opportunity
“The court’s opinions clarify several issues. First, achieving diversity, including racial and ethnic diversity, within the student body, can be a compelling government interest. Second, carefully tailored race-conscious admissions policies can be an appropriate way of achieving diversity, indeed, a more appropriate way of achieving diversity while also
pursuing other important values — such as academic excellence and other forms of diversity — than ostensibly race-neutral policies might be. Third, if race is taken into account, it must be done as part of a holistic assessment of candidates, rather than as a
mechanical factor. The fact that the court upheld the plan used in Grutter, while striking down the plan used in Gratz, gives colleges and universities greater guidance than they had previously about the distinctions between constitutional and unconstitutional uses of race.”— Pamela Karlan, Law Professor,
Stanford University
“The court did essentially define the parameters on the use of race in admissions. Those schools who use the labor-intensive process of carefully reviewing each application with consideration for how each applicant may contribute to the overall makeup of the class, including its racial and ethnic diversity, can continue to do so. Many of the most selective small liberal arts colleges use this process, and the court decision has reaffirmed their right to do so. The challenge will be for those large institutions who, because of the high volume of applications they must process, have sought less time-consuming, labor-intensive methods such as the point system. The University of Michigan has already indicated that they will need to add staff to meet the “law school standard” of processing applications, and the same will be true for other large institutions. Yet for those institutions who have the will to commit the resources, the court has pointed the way.”— Dr. Beverly Daniel Tatum,
President, Spelman College
“The Supreme Court has provided clear guidance on how to use race: be subtle, indeed unclear, about the weight being provided. Only 2 of 9 justices — O’Connor and Breyer —  saw a real distinction between the law school’s use of race to achieve a “critical mass” and the undergraduate program assigning points to race to achieve the same critical mass. But these swing votes provide a roadmap for what universities can and cannot do. The court’s plea for opaque decision-making runs counter to the call for more transparency in economic life, and, at public colleges, is fundamentally antidemocratic. But a roadmap it does provide.”— Richard Kahlenberg, Senior Fellow, The Century Foundation“Twenty-five years after the landmark Bakke case, the Supreme Court finally has addressed affirmative action in the context of higher education. Despite dire predictions that the court would extend color-blind ideology (the view that any consideration of race by government is prohibited under the 14th Amendment’s equal protection clause), a five-justice majority effectively said that education is different in Grutter v. Bollinger (the law school case).  Context is everything and I think it mattered a great deal that the five justices in the majority had been educated in elite law schools and were reviewing the admissions policy at an elite, public law school. The historic ironies would not have been lost on the justices either; in 1950 it was a Black applicant to the University of Texas who challenged that state’s “separate but equal” system of legal education in Sweatt v. Painter. Ultimately, the majority was comfortable showing great deference to people socially similar to themselves in that faculties such as the University of Michigan Law School draw largely from the pool of former Supreme Court clerks. “The law school’s educational judgment that such (racial) diversity is essential to its educational mission is one to which we defer,” wrote Justice O’Connor, following Justice Powell’s educational exceptionalism laid out in Bakke.…What seems clear (and, here, I agree with the dissenters in the law school case) is that we’ll be in for continuing litigation. This is not necessarily a bad thing and, in my own context in a post-affirmative action California, I have often wished faculties would be willing to experiment more even with the inevitable prospect of litigation.”— Laura E. Gómez,
Law Professor, UCLA

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