Changes (and rumors of changes) to racial preferences nationwide

Clarion Call No. 134
The face of racial preferences, under the misnomer “affirmative action,” is changing in several places nationwide.

This week in Georgia, officials at the University of Georgia announced that race and other nonacademic factors would not be used in admission decisions for next fall’s freshman class. This announcement followed the university’s decision not to ask the Supreme Court to review a decision by the U.S. Court of Appeals for the 11th Circuit that struck down the university’s use of race as one of the factors it considered in deciding among applicants.

The other nonacademic factors nixed in Georgia’s admission decisions for next fall include place of residence, socioeconomic status, and legacy status (whether an applicant’s relative attended Georgia). Applications will now be weighed on high-school grades in 16 core courses and standardized-test scores, with grades being given twice the weight of scores. Specially skilled applicants with aptitudes in such areas as art, music, computing, and athletics will receive exceptions.

Georgia president Michael F. Adams has said the university may, given more time to review the decision, alter its admissions process for future classes, “considering such attributes as leadership potential, student activities, socioeconomic background, and demonstrated academic achievement.”

Also this week, the U.S. Court of Appeals for the Sixth Circuit took up arguments en banc — before the full, nine-member panel of judges — of two challenges to the University of Michigan’s race-preferential admissions, Gratz v. Bollinger (concerning undergraduate admissions) and Grutter v. Bollinger (concerning law-school admissions). Critics see the cases as likely to appear before the Supreme Court, especially because circuit courts have issued conflicting rulings nationwide on similar cases. The Sixth Circuit has even split on the two cases, with Judge Patrick J. Duggan upholding the undergraduate admissions policy in Gratz and Judge Bernard A. Friedman striking down the law school’s admissions policy in Grutter.

A key dispute in both cases is the interpretation of the 1978 Supreme Court decision Regents of the University of California v. Bakke, which is the only time the court ever ruled on racial preferences in admissions to institutes of higher education. Lawyers for Michigan argue on the basis of the Justice Lewis F. Powell Jr.’s opinion in favor of limited us of race-based admissions to ensure a racially diverse campus. Lawyers for the plaintiffs argue that none of the other justices subscribed to Powell’s diversity justification and instead viewed race-preferential admissions only to address racial discrimination by the university itself or society at large (subsequent rulings by the court now apply the highest standard of scrutiny to racial preferences used to remedy societal discrimination).

One of those subsequent rulings was made in the case of Adarand Constructors Inc. v. Mineta, for which a petition for write of certiorari was recently dismissed as “improvidently granted” by the court last month. The court originally ruled on the case in 1995, which was brought by a subcontractor who was denied a federal highway contract despite his having the lowest bid, because he was a white male; the contract was awarded to a minority contractor as part of a program by the Dept. of Transportation that awards contracts to “disadvantaged business enterprises” to “level the playing field” among racial groups. In its ruling the court ruled that race-preferential programs would have to pass strict scrutiny, meaning they must meet a compelling governmental interest and be narrowly tailored to do so (a very difficult test to pass).

The court also remanded the case back to the 10th Circuit, from where it has worked its way back up. The Supreme Court’s decision not to review the case keeps the federal program standing, but as there are several active cases challenging the same program, the decision also prevents the course from issuing an awkwards ruling now on the merits of this case when another case may provide the court a better perch upon which to decide the issue.