Court takes up racial preferences in landmark case

When she applied to attend the University of Michigan Law School, Barbara Grutter was anything but a typical applicant.

As a mother of two in her 40s running her own healthcare consulting business, she had considerably more life experience than the average 22-year-old. In addition, there was a respectable 3.8 undergraduate grade-point average and a score of 161 on the law-school aptitude test, placing her in the 86th percentile nationally.

But unknown to Ms. Grutter, she possessed one trait that would significantly undercut her candidacy: the color of her skin.

As one of the most selective law schools in the nation, the University of Michigan maintains an affirmative-action plan that seeks to grant admission each year to a "critical mass" of qualified minority students. To reach that critical mass, the university must reject a large number of white students, like Grutter, even though they have higher grades and test scores than many of the minorities selected to attend.

Tuesday, the US Supreme Court takes up one of the most important constitutional law debates of this generation. The justices must decide whether the nation's most prestigious and selective universities may use race as a deciding factor in whom to admit and whom to reject.

Regardless of which side wins, the court's decision will have a profound impact on efforts to remedy the long legacy of discrimination against African-Americans and other minorities in the US. "The stakes couldn't be higher," says Theodore Shaw of the NAACP Legal Defense and Educational Fund in New York.

The legal debate over affirmative action revolves around three key questions: Does the Constitution demand a colorblind approach in all matters of race? Or, is the constitutional guarantee of equal protection flexible enough to permit the use of race in an effort to uplift a particular segment of society? If so, at what point do preferences cross the line and become illegal discrimination?

The justices are believed to be as deeply divided on these questions as the nation itself. The outcome may hinge on the perspective of a single, tie-breaking justice, Sandra Day O'Connor.

Scores of friend-of-the-court briefs have been filed on both sides, presenting a wide range of passionate arguments. "If traditionally white institutions of higher education are not allowed the flexibility to look beyond narrow quantitative measures of college readiness and consider race, much of the progress of African Americans in higher education will be lost," says Drew Days III, in a brief on behalf of the United Negro College Fund.

Ward Connerly, a nationally recognized opponent of affirmative action, offers a different view: "Was it the purpose of the 'civil rights' movement to end the morally abhorrent practice of discriminating AGAINST black people so that we could discriminate in FAVOR of them?"

In agreeing to decide the issue, the high court is actually hearing two cases back to back. First will be Grutter's case against the law school. Next, the justices will hear arguments in a similar case filed by two white undergraduate University of Michigan applicants.

The undergraduate affirmative-action program is somewhat different from the law school's. Undergraduate minority candidates are awarded an automatic 20 extra points out of a possible 150 points. It is the same number of points awarded for the difference between a 4.0 grade point average and a 3.0 average. (At the law school, no automatic points are granted. Instead, the school seeks to admit a "critical mass" of minority students.)

Opponents of the undergraduate plan say the automatic boost amounts to a race-based double standard, with one set of qualifications for preferred minority candidates and another, tougher, set for everyone else.

Lawyers for the university counter that without such preferences, there wouldn't be enough minority students to achieve a desirable level of diversity.

The concept of diversity is at the center of both the law-school and undergraduate cases. It stems from the majority opinion written by then-Justice Lewis Powell in the landmark 1978 Bakke case. In that ruling, the high court struck down the use of rigid quotas in affirmative-action plans, but Justice Powell said in his opinion that race could be used as one of many factors in a selection process aimed at promoting diversity.

Powell drew a distinction between admission regimes that rely solely on race to achieve diversity and programs that treat each applicant as an individual. To achieve what Powell called genuine diversity, race must be relied upon only as a "plus factor" among an array of other characteristics, he wrote.

In Grutter's case against the law school, her lawyers say the minority admissions plan goes far beyond the individualized "plus factor" outlined by Powell.

Law-school data comparing applicants based on their LSAT test scores and college grades in 1995 show a sizable and consistent disparity between acceptance rates for minority applicants on one hand (that is, black, Hispanic, and native American) and white and Asian-American applicants on the other hand.

Minority applicants in the top tier - those with the highest LSAT scores - enjoyed a 96 percent acceptance rate, compared with an acceptance rate of 59 percent for whites and 63 percent for Asian-Americans, all with comparable test scores.

Among middle-tier applicants (such as Grutter), minorities had an 81 percent acceptance rate, while only 5 percent of whites and 4.7 percent of Asian-Americans were offered admission. In the bottom tier, 26 percent of minorities won admission, compared with 1.4 percent of whites and 1.6 percent of Asian-Americans.

Is this Powell's individualized "plus" factor at work, or evidence of a broad-brush effort to weed out whites and Asian-Americans to make room for enough minority candidates? Michigan Law School Dean Jeffrey Lehman says such statistics are deceptive. "Race is only one of many factors that go into this process," he says.

He adds, "Every year we regularly admit some white applicants who have lower grades and test scores than some African-American applicants who we reject."