by Barbara A. Perry. Lawrence: University Press of Kansas, 2007. 232pp. Cloth. $35.00. ISBN: 9780700615483. Paper. $16.95. ISBN: 9780700615490.
Reviewed by Timothy J. O’Neill, Department of Political Science, Southwestern University. Email: oneillt [at] southwestern.edu.
Some things do not seem to change or, in Barbara Perry’s felicitous phrase, we may be “Bakke to the Future.” Her account of GRATZ v. BOLLINGER (the University of Michigan undergraduate admissions case) and GRUTTER v. BOLLINGER (the Michigan law school admissions case) is more than the tale of the journey of two Supreme Court cases and their aftermath. It is also the story of the profound shift in the justifications for affirmative action in college and university admissions.
Perry, the Carter Glass Professor of Government at Sweet Briar College and Senior Fellow at Louisville’s McConnell Center, has written a superb addition to the University of Kansas Press’s Landmark Law Cases and American Society series. Few books so successfully limn the background, cast and characters, issues, decisions and significance of a leading Supreme Court case as does THE MICHIGAN AFFIRMATIVE ACTION CASES.
The book’s opening two chapters concisely describes the modern struggle for civil rights before GRATZ and GRUTTER. Affirmative action began as a guarantee of nondiscrimination, explicitly forbidding racial or ethnic preferences. By 1969 “specific goals and timetables” were the norm. Within a decade, public opinion turned against preferences as compensation for prior societal discrimination. By the mid 1990s, opinion polls found over ¾ of white respondents and almost ½ of minority respondents opposed racial and ethnic preferences in admissions (p.39), although a plurality supported President Clinton’s “reform, not abolish” affirmative action policy (p.43). What alchemy had brought about these changes?
Justice Powell had held in REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE that the Fourteenth Amendment and the 1964 Civil Rights Act permit carefully tailored programs designed to overcome systemic discrimination against minorities and women. Later courts differed whether the claim that role models or a general preference for racial diversity are sufficiently compelling to let affirmative action pass constitutional scrutiny (pp.42, 51). Eventually, Justice O’Connor’s mantra on affirmative action, that it must be “carefully defined, narrowly tailored, and limited in duration” (p.33) became set law. An explanation for this change has less to do with partisan politics than with litigation tactics set among the background of court appointments. The impact of 12 years of Reagan/Bush appointments to the federal courts (p.39) coupled to a series of popular referenda whittled away at the broader justifications for affirmative action. [*852]
Chapters 3 and 4 are the right kind of “reality” show. They illuminate the human beings standing before and sitting behind the Supreme Court bench. We learn about the role of the Center for Individual Rights (p.38), a public interest law firm challenging affirmative action programs by self-consciously applying the litigation tactics first deployed by the NAACP Legal Defense Fund. We meet Jennifer Gratz, a working class, first generation college student, who found herself waitlisted at Michigan and eventually forced to attend a less prestigious state college. (Patrick Hamacher, her co-plaintiff, is mentioned almost solely as a litigant with virtually no background, a ghost haunting the case). Barbara Grutter, aged 43 and mother of 2, tried to become a lawyer through the best known law school in Michigan and was rejected.
We meet the justices of the Supreme Court. Perry paints a vivid portrait of each justice’s personality and style, full of small but telling human details and touches. The reader unfamiliar with the Court will learn about Souter’s brief but penetrating questions during oral argument, Breyer’s tendency to lapse into professorial lecturing, O’Connor’s ability to cut to the core of the legal problem posed by a case, Scalia’s biting but effective sarcasm, the late Chief Justice Rehnquist’s relentless cross-examination of the attorneys, and Thomas’s uncharacteristic breaching of his usual silence during oral argument.
Even institutions take on human faces. Recognizing that 90% of white and 50% of black freshmen at the university in the early 1990s had attended racially segregated high schools and lived in predominantly one race neighborhoods, University of Michigan President James Duderstadt issued his “Michigan Mandate.” Duderstadt unearthed and enriched Justice Powell’s educational diversity justification from BAKKE, asserting that it is “diversity that sustains excellence” in a pluralistic world (p.53). His words are later echoed in the university’s mission statement where diversity is cited as a key component because it “increase[s] the intellectual vitality of education, scholarship, service and communal life” (p.64). This diversity justification led to initiatives to increase the number of minorities and women in the university’s faculty and student body. The undergraduate school established a dual track admission program, later shifting to a bonus point approach when Jennifer Gratz sued Lee Bollinger, the president of the university, in 1997. The new approach automatically granted 20 of the 100 points necessary to earn admission to candidates who were African-American, Hispanic, or Native American. Virtually every minority who met the minimum qualifications for admission were accepted while many non-minorities with strong records, such as Gratz and Hamacher, were not.
A similar story unfolded within the Michigan Law School. The law school had admitted no black students during the mid 1960s, since no black student met the law school’s LSAT and GPA requirements. Even as late as 2000, the national pool of high scoring African American law school applicants was tiny—only 26 met the quantitative admission scores of successful applicants to highly competitive schools. The law school adopted an admission program designed to achieve a “critical mass” of qualified minority students so [*853] that minorities would not be “textbooks” for white students (p.73). While it lacked the explicit dual track that the undergraduate school possessed, the law school’s procedure reliably enrolled an entering class with ten to seventeen fifteen percent minority representation. The law school defended its procedure by pointing to the historical underrepresentation in the law profession.
Gratz and Grutter charged that race was the dominant factor in undergraduate and law school admissions and that there was an implicit two track process, one for favored minorities, the other for those not in the designated groups. Both programs were over- and under-inclusive, including both those who did not suffer direct discrimination, while leaving out groups such as Asian Americans who have suffered historic discrimination. There was, therefore, no close “fit” as required by the narrowly tailored prong of the strict scrutiny test (p.91). Nor did the diversity rationale constitute a compelling interest. Grutter argued that the critical mass target was a disguised quota (p.90).
Perry displays her knack for summarizing the well rehearsed arguments for and against affirmative action in a few telling words. Readers will come away from this section grasping the complexities, costs and benefits of affirmative action in university admission programs.
Gratz’s attorneys persuaded the district court judge that the undergraduate program’s original dual track was unconstitutional, but they failed to persuade him to overturn the revised bonus system since the judge found it compliant with Powell’s reasoning in BAKKE (p.71). The district court judge in GRUTTER struck down the law school program, rejecting Powell’s opinion as controlling, and relied on later decisions such as ADARAND CONSTRUCTORS, INC. v. PENA and RICHMOND v. CROSON COMPANY to hold that racial classifications are only constitutional when used to repair documented effects of prior, specific discrimination (p.75).
A closely divided appeals court over-ruled the district court in GRUTTER and held that Powell’s opinion was controlling since it provided the narrowest rationale upholding the BAKKE decision. The law school admissions program was constitutional. The 6th Circuit also heard oral arguments on the GRATZ appeal but never issued a final opinion despite the passage of a year (p.85), allegedly because of a delaying tactic by the chief judge. The Supreme Court granted Gratz certiorari without an appeals court decision.
Nearly a hundred friend of the court briefs were submitted to the Supreme Court, three-quarters supporting Michigan. Military and national security concerns were at the heart of a brief signed by three former chiefs of the Joint Chief of Staffs, the former superintendents of two service academies, a former Marine Corps commandant, and a former Secretary of Defense. Corporations such as General Motors, DuPont, IBM and 3M, along with labor unions such as the AFL-CIO also supported Michigan, arguing the value of diversity in a global market. [*854]
Chief Justice Rehnquist, joined by four other justices and with Breyer concurring and dissenting in part, found the undergraduate program unconstitutional (p.151). The university’s use of race was not narrowly tailored to achieve its interest in diversity and so violated the Equal Protection Clause. The mechanistic application of the 20 point bonus was especially galling for O’Connor, Breyer and Rehnquist. In GRUTTER, O’Connor, and four justices found the law school program constitutional since it used race and ethnicity as one of several competitive factors in selecting students. O’Connor affirmed that Powell’s reasoning in BAKKE was still constitutional doctrine (p.142).
Two important lessons about judicial politics are affirmed in these pages. The first is that individuals do matter. Powell and O’Connor demonstrate the power of the centrist justice in a deeply divided court. In many ways O’Connor was Powell’s doppelganger. Their shared temperament and professional values blossomed into a close and warm friendship. Both justices were the only ones on their respective courts to have held a legislative office. Both were “judicial diplomats” (p.96), displaying an uncanny ability to detect the sweet middle of a divided court and to build and hold a cohesive majority among a set of high-strung individualists. Both embraced a new understanding of diversity as the principal justification for racial preferences when societal rather than individual discrimination was at fault.
The second lesson is that the legal process may have more in common with legislative politics than popular or elite opinion will admit. Perry lays out a fascinating sidebar discussion about the alleged manipulation of the court docket by the chief judge of the 6th Circuit (pp.77-84, 138-140, 170-171). Dissenting judges charged him with intentional manipulation so as to exclude retiring Republican judges from participating in the case. Apparently, the 6th Circuit is as polarized and as susceptible to procedural and docket timing tricks as is the US House of Representatives. No one will walk away from this discussion still entertaining the idea that federal court judges are Platonic guardians, dispassionately deducing principles of constitutional doctrine from perfect ideals embodied in the constitutional firmament.
Perry’s story also demonstrates the profound shift in the rhetoric justifying affirmative action in the near thirty years since BAKKE. Over the years, justifications for racial and ethnic preferences in higher education have narrowed from broad claims, such as group compensation for societal discrimination and the need for role models, to the simpler one stated explicitly by Justice Powell in BAKKE: diversity. O’Connor confirmed this shift by relying on Powell’s curious, perhaps contradictory, assertion of academic freedom as a basis for protecting diversity in academia, a negative liberty claim deployed in defense of an egalitarian outcome. Whether the diversity value can carry this weight is open to debate, especially given recent Supreme Court decisions.
The final chapter is a denouement to this judicial drama and a reminder that politics seldom begin or end with a Supreme Court decision. Interest group [*855] litigation continued to prod colleges and universities to change their more explicit racial preferences in scholarships and housing, and to open themselves to broader understandings of what “diversity” might entail. A grass roots initiative headed by Jennifer Gratz successfully nullified GRUTTER by banning racially based admissions in Michigan public universities. Michigan thus joined sixteen other states in barring racial considerations in public higher education admissions
The book’s many virtues are tainted by a few missteps. Buzzy and therefore fuzzy labels such a “liberal” and “conservative” are used without regard to the fact that these slippery labels have little meaning outside a specific time and on a specific issue. For example University of Michigan philosophy professor Carl Cohen, a former ACLU state president and board member of his local county Democratic Party (pp.55-56), was one of the first to question Michigan’s racial preferences, challenging facile labeling of positions on affirmative action as either liberal or conservative. Might a more helpful usage be nondiscrimination for those claims that stress the individual’s right to be freed from government decisions that unduly rely upon racial or ethnic categories, while using antidiscrimination for those arguments that champion the government’s solicitude for the victims of past and continuing unjust discrimination?
Another barely mentioned issue is whether research purportedly demonstrating that diversity improves relationships among the races actually taps into real changes in behaviors and attitudes (p.62). Encourage people to act civilly and they may begin to think civilly. Unfortunately, the research cited in the book depends on students’ self-reports. As social scientists and especially psychologists will attest, self-reporting is the least reliable measure of genuine change.
These missteps are minor blemishes on an otherwise sterling and stirring depiction of a critical set of Supreme Court decisions. THE MICHIGAN AFFIRMATIVE ACTION CASES can serve as a supplement to civil liberties courses, as an integral part of a law and policy class, or as an edited reading for an advanced American Politics seminar. Even the expert will enjoy its unexpected factual gems. For example, the term affirmative action was chosen over its competitor, “positive action,” because of its alliterative rhythm, one of the many ways in which the style developed in the pulpits of white and black evangelical congregations has subtly affected American political language.
ADARAND CONSTRUCTORS, INC. v. PENA, 315 U.S. 200 (1995).
REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).
RICHMOND v. CROSON COMPANY, 488 U. S. 469 (1989).
© Copyright 2007 by the author, Timothy J. O’Neill.