By Richard Lempert

Sometime in the next six weeks the Supreme Court will likely reveal its decisions in Students for Fair Admissions, Inc. (SFAI) v. President and Fellows of Harvard and SFAI v. University of North Carolina. Court watchers are almost unanimous that the Supreme Court majority will:

• read the 14^th amendment as barring the use of racial preferences by public colleges and universities and


• interpret Section VI of the 1964 Civil Rights Act as similarly restricting race conscious admissions at any school receiving federal funds.

To achieve these outcomes a conservative majority will have to reject 40 years of a twice reaffirmed precedent as well as the likely intent of the framers of the 14^th Amendment and of the Congress that enacted the Civil Rights Act. Given the leanings of six of the nine Supreme Court Justices and their prior rulings on race-related issues, neither of these jurisprudential principles is likely to matter.

Opponents expected to be celebrating affirmative action’s demise before now. In suits against the University of California Regents, the University of Michigan, and the University of Texas at Austin, they had Courts that leaned right, but in each case the most centrist of the conservative-leaning bloc refused to pull the trigger. Today the most centrist Justice, Chief Justice Roberts, is on racial matters well to the right of the Justices whose votes were pivotal in prior litigation. Moreover, his vote does not matter. The Court’s conservative wing now has 6 members, meaning there is no single swing vote.

Here are the most important cases leading up to the current litigation and a discussion of affirmative action’s educational impacts as I observed them while teaching at the University of Michigan.

DeFunis v. Odegaard: A Shot Over the Bow

Defunis was the first case challenging the constitutionality of racial preferences to reach the Court. It was dismissed as moot in 1974 because DeFunis, a University of Washington law school applicant, had been allowed to attend the school while he was suing it and was weeks from graduation by the time the Court’s opinion would issue. What surprised Court watchers was the view of Justice Douglas, perhaps the furthest left of the Court’s members and a staunch advocate for racial justice and equality throughout his career. In dissent, he emphasized the need for racial neutrality, leaving no doubt that he would have held the affirmative action plan at issue unconstitutional. Affirmative action has been on shaky ground ever since.

Bakke and Diversity: The Controlling Rationale

In 1978, a second case challenging the constitutionality of affirmative action reached the Supreme Court. Regents of the University of California v. Bakke established the precedent that for 45 years has allowed colleges and universities to engage in race-based affirmative action. The University of California at Davis medical school reserved 16% of its available places for applicants recommended by a special committee that reviewed applicants whose academic credentials were below, often substantially below, what the school ordinarily required for admission. Although whites could apply through that committee, no whites secured admission using this route. When the case reached the Supreme Court, four Justices favored striking down the program because it allowed for race-based preferences, while four Justices thought that the Davis Medical School could, consistent with the 14^th Amendment, reserve a set number of places for minority applicants. Justice Powell, alone in the center, and with the support of four justices, ruled the Davis program’s numerical quota meant that the program could not withstand constitutional scrutiny. But he also wrote that creating racially diverse educational environments was a compelling state interest sufficient to overcome any constitutional bar on the consideration of race so long as race was only one among many factors that a school used in deciding whom to admit. He cited as a constitutional plan Harvard’s approach, which now seems destined for the Supreme Court chopping block. The four justices who would have held the Davis system constitutional agreed with Powell’s view that some use of race in college admissions systems was constitutionally permissible.

There was originally some dispute as to whether Powell’s idiosyncratic views were binding precedent since he wrote only for himself. However, this matter was resolved by later cases in which five justices endorsed his opinion. Interestingly, Justice Stevens, then only three years on the Court, was one of the four justices who would have voided the Davis plan. By the time he retired, he would have ruled the opposite way. Had he done so in Bakke, the diversity justification would not have been needed to justify an affirmative action plan’s constitutionality.

Following Bakke

After Bakke, diversity became a nationwide justification for affirmative action. Diversity concerns, however, had little to do with the institution of affirmative action at the school where I taught. Social justice concerns and the virtue of erasing what we would today call “legacies of slavery” were the chief motivating factors. Some of my erstwhile colleagues might add “avoiding violent protests,” but I do not think this was ever an important reason. Consistent with Bakke, the avowed goal of the school’s affirmative action program became enhancing diversity, but this did not immediately change the school’s approach to affirmative action or the reasons why most faculty valued increased minority enrollments.

Over time, however, effects of the change in rationale became noticeable along with manifestations of diversity’s educational value. A student-run journal on race and law was established. Courses focusing on racial and equality issues were invented and taught. More minority scholars were invited to give talks. The already high pressure to hire a more racially diverse faculty increased. Without the demand fueled by the school’s minority group students, not nearly as much of this would have happened. More than minority group students benefitted. Students of all races enjoyed new offerings and opportunities. White students, along with Blacks and other affirmative action minorities served on the journal of race and law; whites along with Blacks and others attended talks by minority scholars; and several Black faculty were among the school’s most popular teachers. Affirmative action also meant that those minority students with LSAT scores and GPAs that were in the same range as those of most white and Asian admittees felt far less alone in the school’s corridors and classrooms, which was perhaps a reason they flourished.

I was also struck by the value of diversity in the classroom setting, I was, for example, teaching evidence to a class of 110 students when the O.J. Simpson trial was dominating headlines. The trial was a godsend to evidence teachers, and class discussion regularly referenced issues that emerged at trial. About 15% of the students in that class were Black. As in the larger population, views about Simpson’s guilt largely broke along color lines. There were, however, enough Black students in my class so that some Blacks believed Simpson was guilty and some whites believed otherwise. The diversity within races enhanced conversation. In particular, Black students’ arguing for O.J.’s guilt freed white students to express similar views without fear of being accused of racism.

A few white applicants also benefitted from the school’s diversity policies. One year, when I chaired the admissions committee, we admitted a Bangladeshi with over-the-top recommendations from people we trusted and also admitted a white American woman who was a single parent, had worked as a waitress, returned later to college and achieved a 4.0 grade average. But the Bangladeshi had undergraduate grades and the woman an LSAT score which were considerably below the range of most admitted applicants. Each, however, had a history of accomplishments attained and obstacles overcome so different from those of most applicants that we wanted them at Michigan. I expect neither would have succeeded had Bakke not sensitized us to the value of diversity in assembling a law school class.

United Steelworkers v. Weber: The Force of Irony

A year after Bakke, an affirmative action issue in the employment context reached the Supreme Court. The Steelworkers case, the last unequivocal high court victory for affirmative action, grew out of an in-plant craft training program established to compensate for a history in which the union with rare exceptions excluded Black workers from craft training whatever their competencies. To rectify this situation, the union and management agreed to reserve 50% of future craft training slots for Blacks until their numbers reached what they might have been absent past discrimination. A white worker sued claiming that, but for the agreement, his seniority would have ensured him a slot. The heart of the dispute is encapsulated in dueling footnotes by Justice Brennan, who wrote the majority opinion, and Justice Rehnquist, who dissented. Brennan wrote:

“It would be ironic indeed if a law triggered by a Nation’s concern over centuries of racial injustice and intended to improve the lot of those who had ‘been excluded from the American dream for so long’ … constituted the first legislative prohibition of all voluntary, private, race conscious efforts to abolish traditional patterns of racial segregation and hierarchy.”

Rehn