Supreme Court Embraces New, Diversity Rationale to Extend Affirmative Action
On June 23, 2003, the Supreme Court announced its ruling in the two University of Michigan affirmative action cases. Grutter v. Bollinger, 539 U.S. ___ (2003) and Gratz v. Bollinger, 539 U.S. ___ (2003). The gist of the two rulings are that it is okay to make race a factor in college admissions, as long as its not too big a factor (Gratz), and that the Court now (for the first time) declares that a state’s interest in “diversity” has now become a “compelling state interest” that is sufficient to trump the Equal Protection Clause of the the Fourteenth Amendment (Grutter). Both of these rulings suspend the requirement of the Fourteenth Amendment that States cannot discriminate on the basis of race.
In Gratz the Court ruled (6-3) that the University of Michigan policy that gave an applicant for admission 20 points (one-fifth of the points needed to guarantee admission) on the basis of race violated the Equal Protection Clause of the 14th Amendment because the policy was not sufficiently narrowly tailored “to further a compelling state interest.”
However, in Grutter, the Court ruled (5-4) that the University of Michigan Law School admissions policy that aspires to achieve racial diversity in its student body is narrowly tailored to achieve a compelling state interest to promote diversity in education, and therefore it does not violate the Equal Protection Clause. Heretofore, diversity has not been recognized as a basis for suspending the application of the Equal Protection Clause. Previously, the Court had justified certain racial preferences (affirmative action) because of the state interest in compensating for years of disadvantage that blacks had suffered from governmental and societal discrimination. But just as the life of this temporary remedial exception was expiring, the Supreme Court has not recognized a new rationale for further extending racial preferences under affirmative action.
Justices Sandra O’Connor and Stephen Breyer were the two swing votes in these two cases. The other justices voted either against the validity of both admissions programs (Rehnquist, Thomas, Scalia & Kennedy) or for the validity of both programs (Stevens, Souter & Ginsburg).
It is worthy of note that the lolne black Justice, Clarence Thomas, felt that no state interest in diversity should displace the strict demands of the Equal Protection Clause. Quoting Frederick Douglass 140 years ago, Justice Thomas wrote in his dissent in Grutter: “What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice.”
In a most interesting statement of limitation by Justice O’Connor (who wrote the majority opinion in Grutter), she stated that the state’s interest in racial diversity would lapse in 25 years. This is a remarkable statement. On the one hand it confirms that “affirmative action” is but a temporary remedy for the existence of vestiges of discrimination that are found to remain in our society despite the presence of the Equal Protection Clause and 130 years of legislation to enforce it. The Supreme Court’s pronouncement of a temporary remedy for society’s shortcomings is constitutionally offensive because it constitutes a legislative act on the part of the Supreme Court that is not the Court’s prerogative, but results from judicial impatience with the legislature to correct what the Court deems a legislative flaw.
© 2006 C. Paul Smith
Contact the Web Master, Jimmy Smith, at jrs76@hotmail.com
or visit his website at www.jimmyandheather.com
Contact the Web Master, Jimmy Smith, at jrs76@hotmail.com
or visit his website at www.jimmyandheather.com