Supreme Court upholds affirmative action

7/1/2003 -- The U.S. Supreme Court rulings in the University of Michigan affirmative action cases support local school boards that use race as a factor to create diversity and ensure opportunities for minority students. The affirmative action plans, however, must be narrowly tailored.

The court's 5-4 ruling, announced June 23, upholds the concept of affirmative action at public universities.

In a decision involving admissions to the University of Michigan law school, the majority opinion says colleges can consider race as one of the factors they use to select applicants, as long as it is not the only factor.

In that decision, Grutter v. Bollinger, the Court says government has an interest in ensuring that minorities have a better chance to get into elite colleges and universities.

"Universities cannot establish quotas for members of certain racial groups or put members of those groups on different admission tracks," Justice Sandra Day O'Connor wrote in the majority opinion. "Universities can, however, consider race or ethnicity more flexibly as a 'plus' factor in the context of individualized consideration of each and every applicant."

The Supreme Court also struck down an affirmative action system used for selecting undergraduates to the University of Michigan that awarded 20 points to minorities out of a possible 150 points. That decision, Gratz v. Bollinger, was struck down by the court on a 6-3 vote, with O'Connor providing the swing vote.

Both cases were filed by white applicants who had not been admitted to the university and argued that they were subject to reverse discrimination because less-qualified minority applicants had been admitted.

NSBA Executive Director Anne L. Bryant says NSBA is encouraged that the Court recognized in both cases the value of diversity in public education.

NSBA has joined with 10 organizations involved in elementary and secondary education in submitting a friend-of-the-court brief asking the U.S. Supreme Court to support the University of Michigan's affirmative action practices and uphold earlier decisions that support the creation of a diverse learning environment for all students.

"To ensure that all children receive a high-quality education, state and local education officials must have the authority to promote the essential educational benefits of diversity, including racial and ethnic diversity, in a school's student body," Bryant says.

"Diversity, including racial and ethnic diversity, is a vital tool for ensuring a complete educational experience," Bryant says.

Bryant noted that minority children still face persistent inequities in K-12 education, including gaps in funding and opportunities that have led to further gaps in achievement. She cited several studies that point to increased segregation in public schools over the past 15 years.

"The playing field is far from level," she says, "and it is certainly within the proper role of public school boards to do what they can to right these imbalances and take direct action, including considering race, to provide opportunities to minority students."

Even though K-12 schools were not specifically involved in the affirmative action cases, the constitutional issues under consideration by the Court have an impact on the authority of elementary and secondary schools to create diverse education environments for students, says NSBA General Counsel Julie Underwood.

The decision means school boards can continue to use policies to promote racial diversity in such areas as determining admission to magnet school programs, drawing attendance boundary lines, limiting transfers to achieve balance among school buildings, and using admissions lotteries that give a preference to minorities.

The Supreme Court clearly supports similar actions of local K-12 school boards, Underwood says. "The establishment of a diverse student body in elementary and secondary schools promotes several core educational benefits for all students that can be sufficiently compelling to justify limited race-conscious policies."

NSBA's amicus brief argued that school boards should be able to set policies to create a diverse learning environment because diversity benefits all children.

According to the brief, "race matters to the core mission of elementary and secondary education in at least two fundamental ways: (1) to ensure that all students are fully prepared to be productive citizens in our diverse democratic society, and (2) to ensure that all students have the opportunity necessary to achieve high standards."

According to the brief, there is strong evidence that diversity enhances students' civic values, improves student learning, improves preparation for employment, and increases educational opportunities.

The Supreme Court agreed to hear the cases in part to resolve conflicts over the legality of affirmative action stemming from the Court's landmark 1978 ruling in Bakke v. California.

In that case, the late Justice Lewis F. Powell wrote that race could be a "plus factor" that gives a minority candidate a subtle boost in competition with other applicants. Other courts have viewed the Bakke decision as murky and have split on how to interpret Powell's opinion.

In Grutter, O'Connor affirms Powell's endorsement of affirmative action but views it as a temporary remedy.

"It has been 25 years since Justice Powell first approved the use of race to further the interest in student body diversity in the context of public higher education," she wrote. "Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."