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McAdoo Weighs in on Affirmative Action

by James Ottacio Castagnera

Fall 2003, Vol. 66, No. 3

On June 23, 2003, the U.S. Supreme Court announced its two, intensely anticipated opinions on the University of Michigan’s affirmative-action admissions programs. On June 24 I was on the phone to my labor-lawyer friend, Archie McAdoo, to get his take on the two opinions. I guessed correctly that if I called early I’d catch him at his desk in his suburban Philadelphia office, consuming his first cup of coffee and a buttery croissant. Between slurps and gulps, he shared his first impressions.

“Overall the Supremes sang a sweet song, so far as higher education is concerned,” he ventured. “Justice O’Connor’s opinion in Grutter v. Bollinger—that’s the Michigan Law School case—confirms two of the most important principles in higher education law today.” “And they are?” I prompted him as the sounds on the other end of the line suggested that his train of thought might be lost in the ecstasy of a latte with a double shot of mocha flavoring, in my experience a McAdoo favorite for kicking off the day’s endeavors.

“First,” he finally resumed, “the five-justice majority bought the argument—being pushed hard by higher education for the past decade or so—that ‘student body diversity is a compelling state interest.’ This was a notion that Justice Powell floated way back in 1978 in the Bakke case.”

“Wasn’t that the one where the court outlawed racial quotas in college admission decisions?” I asked, a dim bulb flickering in the back of my brain.

“You got it, pal,” Archie confirmed. “The Supremes were each singing solo tunes in that case… half a dozen separate opinions, if my memory serves. But it was Powell’s opinion that pulled the majority of the justices’ positions together and gave the decision a couple of direction signs.”

“Such as?”

“Well,” McAdoo said, “on the one hand the University of California’s medical school was violating the Constitution when it set aside some sixteen seats in the first-year class on the basis of race. But on the other hand, Powell suggested that race could be taken into account in individual admissions decisions on the ground that a diverse student body was a worthwhile institutional goal. Lots of colleges and universities fashioned their admissions policies to conform to Powell’s sign posts in the quarter century following Bakke, and especially after other affirmative action decisions in the 1990s really narrowed the legitimate options available to an organization that wanted to take race into consideration in hiring or admissions.”

“So racial quotas are still verboten?”

“You betcha,” he replied. “That’s the gist of the second new opinion, the one in Gratz v. Bollinger. There Chief Justice Rehnquist writes for a six-justice majority that the University of Michigan’s liberal arts college ran afoul of the Fourteenth Amendment and the federal civil rights acts when it awarded a flat twenty points on its admissions scorecard to every African-American student who applied. That comes too close to a quota and can’t be done. Justice O’Connor’s Grutter opinion confirms this. Listen: ‘The importance of individualized consideration in the context of a race-conscious admissions program is paramount.’ Close quote.”

I reminded him that he had counted not one but two important legal principles confirmed in the Grutter decision.

“Oh, yeah, right,” he resumed. “The other is academic freedom. Although O’Connor devoted some space in her decision to amicus curiae briefs by General Motors, among others, about the need to expose students to diversity to prepare them for the real world of work, she says flat out that ‘The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.’ ”

“So, overall, we educators should be satisfied with the University of Michigan decisions?”
“If affirmative action to achieve a diverse student body is one of your school’s goals,” answered Archie, “then, yes, I’d say that on balance you folks have come out the winners on this one.”

“What about race-based scholarships?” I inquired, probably pushing the limits of my free consultation.

McAdoo pondered for a long moment. “Well, I can see it both ways,” he finally responded.

“Typical lawyer,” I thought, but held my peace. Having a law degree myself, who was I to call the kettle black?

“On the one hand,” he continued, “under Gratz, earmarking financial aid bucks for blacks and Hispanics, for instance, looks a lot like awarding twenty points automatically on the basis of minority status. If the Court in some future case adopted that analogy, you’d be in trouble.

“But on the other hand, if a university follows the Grutter model of including race as just one factor in each individualized admission decision and then puts some money aside to ensure that those minority students admitted can actually afford to attend… well, I don’t know, but that just might pass muster with Grutter’s slim majority.”

I thanked McAdoo for his thoughts. “On the whole I’m feeling better than before I called you,” I said. “Still, I can’t help feeling some anxiety about this whole affirmative action issue, especially when you remember that the bare majority in Grutter could be shifted by just one retirement while George Bush is President. One more conservative on the Court and the Powell/O’Connor approach could be out the window, right?”

Archie let out a long, satisfied sigh. “Relax,” he said. “Walk over to that snack bar on campus and get yourself a grande cappuccino and one of those big, fat blueberry muffins I had the last time I was up there. Trust me… that’ll help you put all this in proper perspective.”

“Easy for you to say, Arch,” I thought, but didn’t say, as I placed the phone back in its cradle on my desk. Then I thought, “Aw, what the hell,” and headed off in the direction of the campus snack bar.