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REFINING AFFIRMATIVE ACTION
Professor Stephen J. Safranek
Ave Maria School of Law
JURIST Guest Columnist

The Supreme Court is now considering two extraordinary cases, Grutter v. Bollinger and Gratz v. Bollinger. The Grutter case involves the admission policies at the University of Michigan痴 law school while the Gratz case involves that school痴 policies on the undergraduate level. These cases present both interesting factual backgrounds and procedural matters that show how racial matters are treated by academics and lawyers. The Court痴 decision now has the benefit of briefs from the government. Those briefs could help change admission policies at colleges and universities.

The logic of the defendant, the University of Michigan, and the Sixth Circuit en banc majority in the Grutter case, is straightforward. Bakke is the precedential higher education case. Numerous Supreme Court decisions on 殿ffirmative action such as in voter districting, and government contracts are to be ignored. Justice Powell痴 opinion in Bakke is the decisive opinion. Justice Powell said that race could be used as a plus in admissions. Michigan痴 Law School uses race as a plus to ensure diversity. Therefore, Michigan痴 殿ffirmative action is constitutional.

Numerous problems exist with this logic and with the facts upon which it rests. Although Bakke is the only Supreme Court case dealing with educational 殿ffirmative action, other decisions undercut, contradict, or limit Bakke. The government cites at least Adarand Constructors, Inc. v. Pena, Metro Broadcasting Inc. v. FCC, City of Richmond v. J. A. Croson Co., and Wygant v. Jackson Board of Education. All of these cases limit affirmative action. Although various shades of differences exist in the 殿ffirmative action cases, the Supreme Court has stated that race can be used as a factor by governments when government has discriminated in the past and when government has narrowly tailored its remedy to serve a compelling interest. All racial classifications, including ones that are designed to benefit a previously injured group, are subject to 都trict scrutiny. 鉄trict scrutiny demands that the government action be necessary to serve a compelling interest.

Michigan and other schools often talk about the 菟lus or 殿ffirmative action they take with regard to minority admissions. They do so because they want to claim that their actions are necessary to serve the interests of diversity. Diversity - and here the schools mean racial diversity - is held to be a compelling interest of educational institutions. Indeed, this may be the key victory that schools of higher education are seeking in these two cases.

The government痴 briefs filed in Gratz and Grutter on January 17 acknowledge that diversity is a compelling interest for universities. The government notes that public institutions should be open to people of all races and ethnicities. The schools should be broadly inclusive. However, the government does not argue that the schools should or must ensure that they are a reflection of the racial or ethnic composition of the country. In fact, the government states that one of the problems with Michigan痴 programs is that they are open ended programs that are meant to ensure a certain racial composition.

The government is not opposed to having a diverse student body. However, its briefs note that diversity can be attained by other means. The government痴 briefs show how important the Hopwood v. Texas case is and how the percolation that takes place on the state level is valuable. The government cites to the reaction taken in Texas to Hopwood. The state adopted admissions policies that admit top students from schools across Texas. These policies 兎nhanced opportunity and promoted educational diversity by any measure. Similarly, the government notes that California and Florida have adopted race neutral policies in university admissions and have maintained their racial and ethnic diversity.

The government briefs take a view of diversity that is not wedded to racial quotas. The government notes that schools can take experience and background into account when admitting students. Such criteria will provide diversity. It is difficult to imagine five members of the Court holding that the University of Michigan has narrowly tailored its admissions process in light of the results in Texas, California and Florida.

Universities may be required to use geographic diversity, economic diversity, etc. in their admission policies. When universities use these criteria, they may admit less academically qualified students (as determined by GPA and admissions tests) than they are currently admitting, but they will open their doors to those who are truly the most disadvantaged - those living in poverty or severe economic conditions. And although such admission policies may not be in the 都chools best interests as defined by GPAs and admissions tests, they may better serve the citizens whose taxes and government created and fund universities.


Stephen J. Safranek is a professor at Ave Maria School of Law in Ann Arbor, Michigan.

January 21, 2003

GUEST COLUMNIST

JURIST Guest Columnist Stephen J. Safranek is a professor at the Ave Maria School of Law in Ann Arbor, Michigan. He clerked for Judge Diarmuid F. O担cannlain of the United States Court of Appeals for the Ninth Circuit and worked for Latham & Watkins in its Chicago office before beginning his teaching career. Professor Safranek has been interviewed on national television regarding constitutional law issues, and he frequently appears on local and national radio programs. He teaches Contracts, Sales, State and Local Government, and Law, Ethics, and Public Policy. Professor Safranek holds a Bachelor of Arts from the University of San Francisco, a Master of Arts from the University of Dallas, and a Juris Doctor from the University of Notre Dame.