The Michigan affirmative action cases that the Supreme Court heard on April 1, and will probably decide by July, are among the most important in its history.1 Enormous crowds demonstrated in favor of affirmative action outside the Court during the oral argument and more amicus curiae (“friend of the court”) briefs were filed in these cases—by universities, colleges, students, political and military officials, corporations, political action groups, and other interested citizens—than in any preceding case.
The University of Michigan—the defendant in the cases—takes race into account in deciding which students to admit because more traditional criteria would admit only a very small number of black, Hispanic, and Native American students. Its undergraduate admissions office uses a point system. It awards points for test scores, high school record, unusual talents and experiences, and other factors, up to a maximum of 150 points. Twenty points are automatically included in the scores of stipulated minorities, as well as the scores of outstanding athletes and of students with socioeconomic disadvantages, though only one twenty-point boost is allowed for any combination of these features. The Michigan law school does not use a point system, and judges each applicant individually, but it counts minority race as one among many favorable factors (others include a higher-than-usual age and a poor economic background) in that competition.
White students who were denied admission to the undergraduate college and law school sued the university, arguing that these programs are unconstitutional because the Fourteenth Amendment declares that states must give all people “equal protection of the laws,” and the use of race in admissions decisions, even as one factor among many, denies that protection.2 Different federal district courts held, in contradictory decisions, that the undergraduate program is constitutional and that the law school program is unconstitutional.3 The Sixth Circuit Court of Appeals reversed the latter decision, and the Supreme Court agreed to review both the undergraduate and law school admissions policies.
The Court may conceivably distinguish between the two programs and hold that the law school’s policy is constitutionally permissible but the undergraduate admissions program is not, because adding a fixed number of points for race does not pay enough attention to the individual characteristics and situation of each candidate. That distinction would not be justified, because the undergraduate point system, as the oral argument made plain, allows tentative decisions based on points to be reviewed and altered on a more individualized basis. But a split decision would nevertheless not be catastrophic for affirmative action programs, because universities that use point systems could switch to more flexible plans like the law school’s even though these might be more unwieldy and expensive when used in admitting large undergraduate classes. But if the Court were to hold the law school program unconstitutional as well, that might well mean the end of effective affirmative action programs in American colleges and universities,
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