Diversity in America: Keeping the Government at a Safe Distance
by Peter H. Schuck
Harvard University Press, 444 pp., $35.00
Remaking the American Mainstream: Assimilation and Contemporary Immigration
by Richard Alba and Victor Nee
Harvard University Press, 359 pp., $39.95
Grutter v. Bollinger
Written opinions by Justices O’Connor, Ginsburg, Scalia,Thomas, Rehnquist, and Kennedy
docket no. 02-241, decided June 23, 2003; vote: 5–4 for Bollinger.
Gratz v. Bollinger
Written opinions by Justices Rehnquist, O’Connor, Thomas, Breyer, Stevens, Souter, and Ginsburg
docket no. 02-516, decided June 23, 2003; vote: 6–3 for Gratz
Thanks to Sandra Day O’Connor, affirmative action is still alive. Race can continue to be a factor in university admissions, although not as explicitly as it sometimes was in the past. But resistance to affirmative action remains strong, particularly within the Bush administration. The Court’s recent decision will very likely face serious challenges, some of them hardly mentioned in comments on the decision so far.
By now the principal findings of the Court are well known. In the decision concerning the University of Michigan Law School, Grutter v. Bollinger, race can be a “plus” in law school admissions, so long as every candidate receives “individualized” scrutiny. In Gratz v. Bollinger, Michigan’s method for admitting undergraduates was held to be unlawful since it automatically gave extra points to persons of certain racial or ethnic origins. The books under review are useful for understanding the challenges to the Court’s decision that are bound to arise.
Affirmative action largely concerns race. Michigan and other universities call Hispanics and American Indians “underrepresented minorities,” but the primary aim of preferential policies has been to increase the number of black students on campuses. In 1994, a white applicant to the University of Texas School of Law named Cheryl Hopwood filed a suit contending that she had been rejected by the law school because of her race. She found that black candidates with lower grades and scores than hers had been given places, one of which, she felt, should have been hers. The school replied that it had the right to encourage diversity among its students.
Two years later, however, a federal appeals court upheld Hopwood’s suit, saying that the school “may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body.” It based its decision chiefly on a new reading of both the Fourteenth Amendment’s “equal protection” clause and the Civil Rights Act of 1964, where the operative words are “no person shall, on the ground of race, color, or national origin, be subjected to discrimination under any activity receiving Federal financial assistance.”
The original aim of both the Fourteenth Amendment and the Civil Rights Act was to protect black Americans, who were being denied opportunities and benefits because of their race. Even so, the appeals court ruled that the law school had abrogated Cheryl Hopwood’s right to “equal protection” since she was discriminated against for being white. Under no circumstances, the court held, could race, white or black, be used to further academic ends. Lawyers for the white plaintiffs in both recently decided Michigan cases made this their leading argument. In the Grutter case, they persuaded only four of the Supreme Court justices, and as a result Hopwood was overturned. The decision had barely been released when the University of Texas announced it would reinstate the affirmative action programs it has been barred from using for the past seven years.
In 1996 …