Diversity's Day In Court

In the 1996 Hopwood v. Texas case, the United States Court of Appeals for the Fifth Circuit ruled that the University of Texas law school's policy of considering race in the admissions process was a violation of the Constitution's equal protection guarantee. The Fifth Circuit's surprising ruling -- confined to Texas, Louisiana and Mississippi -- sent a message throughout the nation's public universities that affirmative action policies in admissions standards would be scrutinized closely. In 1997, then-Attorney General Dan Morales responded to questions raised concerning the Hopwood decision's effect on Texas' privately operated higher-education institutions. His letter opinion noted that private universities are not characterized as "state actors" for purposes of the Fourteenth Amendment's Equal Protection Clause; however, both public and private universities alike receive millions of dollars of federal financial assistance through Title VI of the 1964 Federal Civil Rights Act, which prohibits "those racial classifications which would violate the Equal Protection Clause." With this opinion, the Hopwood decision became policy affecting every university throughout the state that received Title VI federal financial aid, including Baylor University.
Swiftly responding to the Hopwood decision, in 1997 the Texas Legislature passed the Texas Ten Percent Plan, which ensures that students graduating in the top 10 percent from all Texas high schools would have guaranteed admission to the Texas A&M and University of Texas systems, including the two flagship institutions, A&M-College Station and UT-Austin. The same year, three white students filed a similar suit alleging discrimination against the University of Michigan, claiming that the university rejected their applications because the admissions committee gives unfair and, they claim, unlawful advantage to minority applicants. Six years later, educators, students and scholars alike await the decision in two landmark affirmative-action cases the Supreme Court has heard and will decide later this term -- Grutter v. Bollinger and Gratz v. Bollinger. 
Lee Bollinger, president of the University of Michigan and defendant in both cases, is unapologetic about the university's use of race in admissions and believes it's the right thing to do. "Diversity is not merely a desirable addition to a well-run education. It is as essential as the study of the Middle Ages, of international politics and of Shakespeare. For our students to better understand the diverse country and world they inhabit, they must be immersed in a campus culture that allows them to study with, argue with and become friends with students who may be different from them. It broadens the mind and the intellect -- essential goals of education." Diversity is the justification for the University of Michigan's admissions system, and a rejection of the diversity rationale will spell the end of affirmative action both at that university and in higher education nationwide. As devotees of the Supreme Court's equal protection jurisprudence know, the 1978 Regents of California v. Bakke decision held that race could be considered as a factor in university admissions, so long as it wasn't a deciding factor.
In Bakke, the court addressed whether the medical school at the University of California-Davis' quota system, which reserved 16 out of 100 places each year for minority applicants, violated Title VI of the 1964 Civil Rights Act. Title VI prohibits racial discrimination or classification in programs receiving federal financial assistance. The UC-Davis special admissions program was challenged by a 38-year-old white engineer, Allan Bakke, who was rejected by the medical school in 1973 and 1974, despite having admissions test scores higher than many of the minority applicants who were accepted. Chief Justice Burger, along with Justices Stevens, Stewart and Rehnquist, concluded that UC-Davis' reservation of a predetermined number of positions was a race-conscious quota system that violated Title VI's prohibition against discrimination. Having found the necessary statutory violation to end the program, the four justices saw no need to address the question of whether race could ever be a factor in admissions. At the same time, Justices Brennan, White, Marshall and Blackmun held that racial classifications could potentially withstand judicial scrutiny, but chose not to provide examples of such situations. Standing deadlocked at four votes apiece, the Bakke court's ultimate determination would lie with Justice Lewis Powell Jr., whose opinion arguably raised more questions than it answered. Although agreeing that a statutory violation of Title VI was present -- and thus casting the decisive fifth vote'-- Justice Powell alone chose to confront the constitutional question and address the issues of diversity and equal protection. Writing for a divided court, he interpreted the Constitution's Equal Protection Clause to mean that government may only employ race-based preferences in furtherance of a "compelling" governmental interest. His influential opinion noted that under the Fourteenth Amendment, "The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal." 
At the same time, Justice Powell defended what some describe as preferential treatment of racial minorities as a means of remedying past societal discrimination, but only to the extent that such action is consistent with the Fourteenth Amendment. Thus, universities could use race as a factor in recruiting students as long as the universities did not employ a quota system. Choosing to address the bigger picture, Justice Powell was the lone member of the court to suggest that educational diversity may form the "compelling interest" required to allow racial classifications to withstand judicial scrutiny under the Equal Protection Clause. 
In the wake of Bakke, the pursuit of future diversity gradually came to supplement efforts to remedy the effects of past societal discrimination as the basis for special admissions and hiring policies. Educational institutions began to defend affirmative action or diversity programs by attempting to demonstrate their benefits for all students, rather than as a redress for past discrimination. One might wonder, in light of Bakke, why the Supreme Court once again is prepared to address this issue. The Bakke court's divided approach to the equal protection question resulted in an unusual 4-1-4 alignment of the justices, creating an uncertainty that has remained for more than 25 years. Of the nine justices on the Bakke court, only Rehnquist and Stevens remain today. Against that backdrop, in Grutter and Gratz, the Supreme Court finally will decide whether the government's interest in promoting "diversity" in higher education qualifies as a compelling interest likely to benefit all students. 
This is expected to be a sharply divided opinion -- with four justices each firmly rooted on opposing sides of the issue; Justice Sandra Day O'Connor is presumed to be the decisive vote. If the court determines that the University of Michigan's program is constitutional, the Hopwood decision effectively will be trumped, and state universities across the nation may consider race and ethnicity as "plus factors" in the admissions process. Historically, the court has agreed that race-based preferences may be employed to remedy the effects of past racial discrimination, but there is no such consensus about using the more forward-looking rationale of "educational diversity" to support a program of racial preferences. The Civil Rights Act of 1964 made discrimination illegal and established equal opportunity for all Americans -- regardless of race, cultural background, color or religion. Initially, affirmative action was a policy primarily aimed at correcting institutional discrimination where decisions, policies and procedures that are not necessarily explicitly discriminatory have had a negative impact on people of color. Such policies address, and more importantly redress, systematic economic and political discrimination against any group of people that is underrepresented or has a history of being discriminated against in particular institutions. Beneficiaries of such programs have included white men and women, people with disabilities, poor and working-class people -- but their primary emphasis has been on addressing racial discrimination.
In the post-civil rights era, many institutions of higher education have set out to create on their campuses a microcosm of the equitable and democratic society they aspire to achieve. The court's decision may well change the ground rules for this effort or require the development of new tools to achieve it, but diversity should and will still be pursued. Classroom diversity, diversity programming, opportunities for interaction and learning across diverse groups of students and faculty in the college environment now constitute important initiatives to enhance the education of students. For Baylor and other top universities, the admission and education of a diverse student body will continue in importance. Affirmative action programs have been effective in many areas of public life because they opened up opportunities for people who otherwise would not have them, yet affirmative action is not a cure-all. The Grutter and Gratz decisions will play an integral role in Baylor's efforts to attract and retain a student body that is representative of the global community -- the community in which we are all neighbors.

Professor Guinn, BA and JD, '63, LLM '66 (University of Michigan), is the Louis L. Morrison Professor of Constitutional Law and Master Teacher at Baylor Law School. He was assisted in this article by senior law clerk Roger Gordon, JD '04.