he Supreme Court took a historic stand for equality of opportunity yesterday, upholding affirmative action in university admissions. The court handed down a split decision, approving one University of Michigan admissions program and striking down another, but its message was a strong endorsement of using race to promote campus diversity. The fact that the key decision was 5 to 4 is cause for concern, however. One resignation on the court could produce the opposite result in a few years.
The Supreme Court, ruling in a tangle of majority opinions, concurrences and dissents, handed down what Justice Antonin Scalia called a "split double header." By a 6-to-3 vote, it struck down Michigan's undergraduate admissions program, in which students were evaluated on a 150-point scale that awarded 20 points for being a member of an underrepresented minority group. In its 5-to-4 ruling, the court upheld Michigan's law school program in which decisions are made by an admissions committee without a numerical scale.
The conservative activists who sued Michigan were hoping the court would abandon University of California Regents v. Bakke, the landmark 1978 decision holding that race can be a "plus" factor in admissions. Instead, the court reaffirmed Bakke and proceeded to use it as a template. It said the undergraduate admissions program failed because it lacked the sort of individualized assessments Bakke required. The law school program survived because — in the words of Justice Sandra Day O'Connor, who wrote the majority opinion and provided the critical fifth vote — it used race in a "flexible, nonmechanical way."
The court's analysis was far from perfect. In evaluating the undergraduate program, the majority was too quick to accept that all uses of race are equally suspect — that helping disadvantaged blacks is akin to saving seats at the front of a bus for whites. The court also failed to recognize that the point scale, by giving a distinct but limited advantage to minority applicants, used just the sort of "plus" factor Bakke permitted.
But over all, affirmative action has dodged a bullet. The University of Michigan was quick to hail the rulings, and to say that despite the logistical challenges — it will need to start giving individualized assessments to more than 25,000 undergraduate applicants — it expects to be in compliance by the fall. If affirmative action were ended at the law school, one expert testified, minority enrollment would drop from 14.5 percent to 4 percent. Campuses, and corporations, across the country would also likely have experienced a powerful impact.
One of the most gratifying aspects of this case was that it demonstrated that affirmative action now has mainstream support. Scores of Fortune 500 companies submitted "friend of the court" briefs in support of the university. The court seemed particularly impressed by a brief submitted by former military leaders attesting to how important affirmative action is to the armed forces.
Still, it is important to appreciate how close yesterday's key ruling was. Justice O'Connor is rumored to be considering resigning this summer. If the Bush administration replaced her with a hard-line conservative, there would likely be five votes to all but end affirmative action. Supporters of equal opportunity should savor yesterday's victory. But they should prepare for the coming battle.
