Affirmative action is not perfect but it is the best way to ensure diversity in universities, says Sheldon Elliot Steinbach.
The most contentious national issues in the US seem to wind up being settled by the courts, as Alexis de Tocqueville observed in Democracy in America. The proper place for affirmative action is no exception - a wrenching topic in a society that lauds equal protection under law and aspires to "colour-blindness" (at least in matters of government policy).
These days, the debate over race-conscious decision-making has focused on US universities. Many of the most selective institutions seek student-body diversity - and the accompanying enrichment of classroom discussion and campus life supplied by a student body with more varied backgrounds, experiences and views - by giving underrepresented minority group members a boost in the admissions process. Last week, the Supreme Court issued a landmark decision on affirmative-action policies at US universities that is positive, measured and, ultimately, familiar.
The ruling resolves the claims of white students who were denied admission to the University of Michigan and blamed affirmative action. Lower courts divided over a central legal question - the continuing validity of the Supreme Court's decision 25 years ago in the case University of California Regents v Bakke. Then, a fractured court left doubt as to whether its apparent endorsement of affirmative action was a binding precedent. As the Michigan cases made their way to the Supreme Court, dozens of groups representing education, civil rights, business and the military voiced their support for the university in court documents. Then, last spring, the Bush administration argued that the Michigan policies should be struck down.
In the end, the court's ruling did little more than ratify what the court said in Bakke. Any different treatment by government based on race must be supported by a sufficiently important objective and undertaken in a "narrowly tailored" manner, it affirmed. Examining the context of the Michigan cases, the court endorsed the view first stated in Bakke that "student body diversity is a compelling state interest that can justify the use of race in university admissions". In so deciding, the court said a university should be presumed to act in good faith, especially because Michigan's asserted justification for affirmative action - the educational benefits that flow from a diverse student body - are so closely tied to its educational mission. Courts traditionally defer to educators in matters of academic judgment, the justices noted, because university autonomy is grounded in basic constitutional principles. Evidence presented in the case showed that having a racially diverse student body has benefits for students of all races. It helps break down stereotypes, improves classroom discussion, prepares students for the workforce and citizenship, and permits universities to "cultivate a set of leaders with legitimacy in the eyes of the citizenry". While it would be a mistake to assume that all members of a race think alike, the justices noted that, in a society that is not colour-blind, being a member of a minority group is "likely to affect an individual's views".
As in the Bakke case 25 years ago, the court held it lawful for race to be a "plus" factor but unlawful for universities to adopt racial quotas, consider minority applicants on a separate track or isolate them from competition with whites. Race may be part of an application-review system that is individualised and holistic. Applying this standard, the court approved one of the challenged admissions policies - used by Michigan's law school - because each application was carefully reviewed. But the rating system for undergraduate admissions, which assigned 20 extra points to minority applicants, was held unlawful because the court found race to be the "decisive" factor for virtually all minorities who met minimum qualifications. The system was too mechanical and inflexible to meet Bakke 's "individualised consideration" requirement.
As the dust settles on the court battles, we somehow find ourselves just about where we have been for the past 25 years - squarely in the territory staked out by the court in Bakke. The court made clear that diversity and excellence are not mutually exclusive. Race-sensitive admissions policies are a critical tool we can use to help achieve a student body that is diverse, academically capable and multitalented. Universities may continue to use affirmative action to advance the compelling interest in diversity, and they must continue to consider applicants as individuals, not solely as members of a racial group. That is a victory for higher education, hard won, in court. As de Tocqueville might have said: It may not be perfect, but it is the American way.
Sheldon Elliot Steinbach is vice-president and general counsel at the American Council on Education.