Affirmative Action Reaction

      Retired University of Michigan Law Professor David Chambers said he was “giddy with relief, overjoyed” that the U.S. Supreme Court’s late June ruling upheld the law school’s affirmative action admissions process. Chambers worked on an amicus brief in the case (see “Beyond Bakke,” OITM April 2003).
      “The decision for the law school was the best outcome we could have hoped for,” he added.
      The Supreme Court affirmed the University of Michigan Law School’s practice of considering race as one factor among many in deciding which applicants would be admitted. At the same time, the Court ruled that the different process used by the University for undergraduate admissions was impermissible. That process was found to be “mechanistic” because a specific number of “points” was added to every minority applicant’s score.
      “The undergraduate process is reasonable, given the large number of applicants being considered,” Chambers said. But despite that ruling, the important thing is that the principle of race-conscious or racism-compensatory university admissions has been affirmed, he continued.
      A near-record number of amicus briefs were filed in the case, running about six-to-one in support of affirmative action.
      “The decision turned in the end on Justice [Sandra Day] O’Connor. She couldn’t drive herself to end a system that had such a good effect,” Chambers said.
      Dan Vogel, president of the University of Vermont, said the University was “thrilled by the decision. We congratulate the University of Michigan for taking the lead and preserving access for a diverse body of students.”
      At the same time, he cautioned, “There is no consensus yet, even among attorneys, as to what these two decisions mean. It is clear that formulaic approaches are not allowed.”
      Vogel said there would be “no real impact” at UVM “because we are so selective.” The University received 10,300 applications for about 1,900 freshman class placements in the fall of 2002, he said. Few observers would consider that a “critical mass” of ethnically and racially diverse students has been achieved at the University, however.
      “We work very hard to build a diverse student body. Race is just one thing among many that we consider. Our approach is successful and labor- and resource-intensive,” Vogel said, citing the university’s close relationship with a Bronx high school, which will send 20 of its graduating seniors to UVM this fall. Among them are six Hispanics, seven African Americans, and four Asian Americans.
      In an op-ed piece in the Chicago Tribune, Vogel called attention to the 25-year deadline written into her concurring opinion by Justice Sandra Day O’Connor.
      “Half a century has not been enough to desegregate the schools, and now we're told we have just half as much time again to transform or somehow to counteract the cultural, political, social and economic contexts that led the court to rule that colleges can use race as a plus to create diverse student bodies for the benefit of all students and of society,” he wrote.
      “By 2028, we need to be out of the affirmative action business.”
      The effect of the ruling on Texas and California, which had already banned race-conscious admissions procedures from its colleges and universities, was unclear. In Texas, where a federal court found that the Bakke decision on affirmative action should be held in abeyance (in Hopwood v. Texas), any high school student who graduates in the top 10 percent of the class is guaranteed admission to the state’s university system.
     According to a press release from the a group calling itself “Young Conservatives of Texas,” the rulings are “better than Bakke” and “place significant new limits on the use of race in admissions.” The organization “warned” the University of Texas president that any plan to “reimpose racial preferences in undergraduate admissions is illegal” because the student body has already achieved a “critical mass” of minority students. David Rogers, a member of YCT, was a plaintiff in the Hopwood v. Texas case.
     But according to Chambers, “Nothing in these rulings would prevent the University of Texas from using the same process as the University of Michigan Law School.”
     As for those who would turn into an enforceable deadline Justice O’Connor’s expectation that affirmative action would no longer be needed 25 years from now, Chambers said, “We’ve clearly made some progress over the last 25 years, but we have a long way to go before there’s no more need.”