because of the withdrawal of Kagan, again because she was U.S. solicitor general
in the early phases of the case.
The courts have wrestled with the concept of affirmative action in college admissions for decades. Is diversity so compelling an interest that public colleges and universities can treat applicants differently because of the color of their skin?
The arithmetic of the modern court, conservatives versus liberals, doesn't bode well for the survival of affirmative action in college admissions even though the Obama administration filed a brief strongly supporting the University of Texas policy.
In 1978's Regents of the University of California vs. Bakke, a Supreme Court majority found the admissions policy of the UC Davis Medical School unconstitutional when it set aside spaces for minorities, but a plurality recognized that diversity was a legitimate goal.
In 2003, the high court went both ways, striking down the University of Michigan's undergraduate admissions policy but upholding the admissions policy of the Law School, though both used race as a determining factor.
In Gratz vs. Bollinger, the justices ruled 6-3 the university's undergraduate admissions guidelines were unconstitutional. The guidelines used a number of factors to evaluate an undergraduate applicant, assigning a numerical value to each factor.
Those scoring above 100 were considered eligible to fill the limited number of slots. However, minorities automatically received a 20-point bonus.
Two white students, who normally would have been admitted but weren't, challenged the policy in court.
The prevailing opinion written by the late Chief Justice William Rehnquist said, "Because the university's use of race in its current freshman admissions policy is not narrowly tailored to achieve [the school's] asserted interest in diversity, the policy violates the equal protection clause" of the 14th Amendment.
The other University of Michigan case, Grutter vs. Bollinger, was handed down the same day with Justice Sandra Day O'Connor joining four liberals to form the five-member majority for a different result.
In Grutter, the university's Law School chose applicants based on a number of factors, including race, but gave no numerical weight to race. Instead, the Law School tried to achieve a "critical mass" of students, black and Native American, who might otherwise not be included.
Again, the policy had been challenged by a white student who was qualified to be admitted to the Law School but wasn't.
O'Connor said in her majority opinion, "The law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the equal protection clause" of the Constitution.
She said the law school's policy survived even strict scrutiny, the toughest of three levels of scrutiny used by the courts (the lower levels are "reasonable review" and "intermediate review").
But, she warned 10 years ago, racial preferences should not last forever, a warning cited in the Michigan case.
"It has been 25 years since Justice [Lewis] Powell first approved the use of race to further an interest in student body diversity in the context of public higher education" in 1978's Bakke, O'Connor said. "Since that time, the number of minority applicants with high grades and test scores has indeed increased. ... We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
In Grutter, Justice Kennedy joined the three conservatives, Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas, in dissent, but also wrote separately.
In what may be an indication on how he will rule in the Texas and Michigan cases, Kennedy condemned "preferment by race."
"Preferment by race, when resorted to by the state, can be the most divisive of all policies," Kennedy wrote in 2003, "containing within it the potential to destroy confidence in the Constitution and in the idea of equality."
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