Civil Rights
Sep. 22, 2001
Reaching High
Few issues are as divisive or as important as whether universities may use race as a factor in admission decisions to enhance diversity. There is a split among the federal Court of Appeals on this issue.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
Few issues are as divisive or as important as whether universities may use race as a factor in admission decisions to enhance diversity. There is a split among the federal Court of Appeals on this issue.
On Aug. 27, the 11th U.S. Circuit Court of Appeals invalidated the University of Georgia's affirmative-action program. Johnson v. Board of Regents, 2001 U.S.App.LEXIS 19154 (11th Cir. Aug. 27, 2001). The court found that the program was not narrowly tailored to achieve its goal of diversity and expressed doubt as to whether diversity is a compelling interest sufficient to justify race-based affirmative-action programs.
The 11th Circuit's decision exacerbated the division among the federal courts on this issue. In 1996, in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), the 5th Circuit ruled that race could not be considered at all in admissions decisions. In contrast, in Smith v. University of Washington, 233 F.3d 1188 (9th Cir. 2000), cert. denied, 121 S.Ct. 1622 (2001), the 9th Circuit expressly disagreed with the 5th Circuit and held that under the U.S. Constitution, colleges may use race as a factor in admissions decisions to benefit minorities and enhance diversity.
In fact, the extent of the split among courts is reflected in the fact that, in the last year, two federal district courts in Michigan have come to opposite conclusions as to the constitutionality of affirmative-action programs at the University of Michigan.
One decision upheld the University of Michigan's consideration of race in undergraduate admissions, Gratz v. Bollinger, 135 F. Supp.2d 790 (E.D. Mich. 2001), while the other struck down the same practice at the University of Michigan Law School, Grutter v. Bollinger, 137 F. Supp.2d 821 (E.D. Mich. 2001). Both cases are on appeal before the 6th Circuit.
Ultimately at issue in all of this litigation is whether college admissions must be colorblind under the U.S. Constitution. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), five justices on the Supreme Court said that colleges and universities may use race as one factor in admission decisions. Justice Lewis Powell, the key fifth justice in the majority, said that "the interest of diversity is compelling in the context of a university's admissions program."
Ideally, such diversity would occur through race-blind admissions and hiring policies. But where this is not the case because of the legacy of discrimination, affirmative action can be used to enhance diversity.
The question is whether Bakke remains good law. The 5th Circuit expressly said that it is not to be followed because subsequent Supreme Court cases limiting affirmative action have undermined its rationale. The 11th Circuit indicated its doubt as to whether Bakke survives. But the 9th Circuit in Smith said that Bakke is the law unless and until the Supreme Court overturns it.
In an opinion by Judge Ferdinand Fernandez, the Smith court said that "the attainment of a diverse student body is a constitutionally permissible goal for an institution of higher education. In that regard, ethnic diversity can be one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body."
The 5th and 11th Circuits both said that Powell's opinion in Bakke is not to be regarded as the law because he was writing just for himself. Although it is true that no other justice joined Powell's opinion, four other justices agreed with him that colleges and universities should be able to engage in affirmative action.
Justice William Brennan wrote an opinion, joined by three other justices, urging the use of intermediate rather than strict scrutiny to make it easier for colleges and universities to pursue diversity. Courts and critics of affirmative action are simply disingenuous when they try to dismiss Powell's opinion as being only for himself. In Bakke, five justices unquestionably endorsed the use of race as a factor in admissions decisions.
Ultimately, this split among the lower federal courts will need to be resolved by the Supreme Court. When it does so, it should make clear that Powell's opinion in Bakke remains the law: Colleges have a compelling interest in pursuing diversity and may consider race as one factor among many in the admissions process.
First, diversity, including racial diversity, matters enormously in the classroom. The concept that diversity matters is not new; colleges and universities long have pursued diversity in their admissions policies. It always has been easier for a person from Wyoming to get into Harvard or Princeton than someone from Boston. Those with unusual skills or life experiences always have been preferred in the admissions process because of the diversity that they will add to the classroom.
Racial diversity is a compelling interest because race so powerfully affects how a person is treated and how he or she experiences the world. A discussion of race in a history or a political-science class is vastly different in an all-white classroom from how it is in a racially diverse classroom. In law-school classes, discussions about racial profiling in a criminal-procedure class or about affirmative action in a constitutional-law course are very different depending on the racial composition of the students.
This is not to say that there is a uniform viewpoint shared by racial minorities or those of the same race; such, of course, is not the case. Rather, the idea is that African-Americans, Latinos and Asians often have different experiences and, thus, perspectives to share, which generally would be absent in an all-white classroom.
In over 20 years as a law professor, I have taught in classes that were virtually all-white and those that had a substantial number of minority students. The discussions and learning experiences for all students are different. Last spring, I was a visiting professor at University of California, Los Angeles' School of Law and taught an upper-level class to approximately 85 students.
Because of Proposition 209, which eliminated affirmative action in California, there was not one African-American student in the class. The discussion of topics such as segregation and racial profiling was dramatically different from when I have taught the same topics in a racially diverse room. It is deeply disturbing to teach a large class at a major university in 2001 and not have one African-American student in the room.
Second, the reality, for now, is that diversity will not be achieved without affirmative action. The legacy of discrimination is so powerful that race-blind admissions usually will mean few African-Americans or Latinos are enrolled. For example, the University of Georgia, the focus of the recent 11th Circuit decision, refused to admit African-Americans until 1961 and, as recently as 1969, was found by the federal government to systematically discriminate based on race.
The University of Georgia, however, gives a preference in its admissions decisions for students who have relatives who are alumni of the University of Georgia. Obviously, whites are far more likely than African-Americans to have had a parent or grandparent attend the University of Georgia. Race-blind admissions simply perpetuate discrimination.
In Georgia, about 25 percent of the population is black, but even with affirmative action, only 6 percent of the students at the University of Georgia are African-American. Without the use of race in the admissions process, few African-Americans would be at the school. That is exactly what states like California and Washington, which eliminated affirmative action by amending their state constitutions, have experienced.
The 11th Circuit invalidated the Georgia program on the ground that it was not narrowly tailored. Yet it was designed precisely to comply with the approach endorsed by Powell in Bakke. The University of Georgia admitted 85 percent of its entering class based solely on the numbers, without any consideration of race. For the remaining 15 percent of the class, it looked at 12 factors, only one of which was race.
The 11th Circuit objected to the mathematical formula used, which awarded points for these factors, including race. Taken literally, it would seem that the 11th Circuit would have upheld the program if only the university had not announced a point system. Yet the clear implication of the decision is that the court believes that affirmative action in higher education is unconstitutional.
In light of the split among the circuits, there is a good chance that the Supreme Court will grant review of the 11th Circuit's decision. If not, then the 6th Circuit's ruling in the University of Michigan cases, expected in 2002, will be the likely vehicle for the court to again consider affirmative action in higher education.
Whenever it grants review, the Supreme Court emphatically should reaffirm Powell's opinion in Bakke: There is a compelling interest in diversity in higher education, and race may be used as one factor in admissions decisions to achieve this.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California Law School.
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