Supreme Court’s affirmative action decision

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(Host) Commentator Peter Gilbert reflects on the recent Supreme Court decision on affirmative action in college admissions.

(Gilbert) The United States Supreme Court handed down a pair of decisions this week that look, at first blush, like a split decision – one decision upholding the affirmative action admissions procedures of the University of Michigan Law School, the other striking down Michigan’s undergraduate admissions procedures. But the decisions were in fact a clear and important victory for those who believe that colleges and universities should be permitted, if they choose,
to consider the race of applicants in making admissions decisions.

In the University of Michigan undergraduate admissions case, six of the nine justices struck down an aspect of the admissions process. What they didn’t like was the fact that in order to be consistent across numerous admissions officers and tens of thousands of applications, the school awarded twenty points to all under-represented minority applicants, increasing the likelihood of their receiving the number of points needed to be admitted. That process, the majority concluded, did not look at applicants sufficiently as individuals, and therefore was unconstitutional. In the Michigan Law School case, however, five of nine justices concluded that its less mechanical policy was constitutional because it included “a meaningful individualized review of applicants.”

Unlike twenty-five years ago in Regents of the University of California v. Bakke, these cases had a clear majority of the Court who explicitly affirmed that consideration of race in admissions was constitutional. It explicitly endorsed the notion that the university has a compelling interest in creating a diverse student body in order to gain the “substantial,” “important and laudable” benefits afforded all students from studying as part of a diverse student body.

Twenty-five years after Bakke, the Court has finally had the opportunity to provide guidance on how schools may constitutionally consider race in the admissions process. Schools now know what admissions procedures will pass constitutional muster and which won’t.

In these two cases we see the Court dealing with a difficult constitutional and social problem: how to remain true to the American notion that our laws deal with individuals, not groups, and yet acknowledge that, unfortunately, race still matters in this country. In these two cases, the Court found something of a middle ground. It has reaffirmed the fundamental constitutional notion that laws that make distinctions on the basis of race are unconstitutional – unless such distinctions can be justified because of a compelling interest in the state, and unless the exception is as narrow as possible. Nobody said that the on-going American experiment was going to be easy.

This is Peter Gilbert in Montpelier.

Peter Gilbert is Executive Director of the Vermont Humanities Council. He spoke from our studio in Montpelier.

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