May 26, 2002

RIGHT NOW, because of conflicting federal appeals court decisions, race is both a legal and illegal consideration for admission to America's colleges and universities. It all depends on where you live.

Of course, that won't do. And so the Supreme Court -- which hasn't said much about race-conscious admissions policies since 1978 -- must revisit the issue next term. The nation needs a clear and consistent opinion on this issue, and this time it should be one that more adequately sets parameters.

Last week, the 6th U.S. Circuit Court of Appeals upheld a University of Michigan Law School admissions policy that uses race as one of many deciding factors. It only added confusion to the affirmative action landscape. A 1996 5th Circuit appellate decision struck down a similar policy at the University of Texas Law School, and a 2001 judgment shelved race-conscious admissions policies at the University of Georgia.

The conflict here is not just over the principle of whether race should be a permissible consideration at all. It's over methodology as well. How much should race matter and what constitutes the use of quotas, which are clearly not legal?

If the high court weighs in, it will have to do a better job of defining the difference this time. The 1978 decision (called Bakke, for the white student who challenged the University of California's affirmative action policy) was hardly a model of clarity. In it, Justice Lewis F. Powell Jr. said race could be "a plus" in consideration of a black student's application, but it couldn't be used to justify admittance of a "specified percentage" of minority students.

OK. So how much weight can race have? Can it be the deciding factor for an individual student? Can it justify the admittance of a "less qualified" minority applicant over a white student with more favorable test scores or class standing?

Justice Powell didn't say. But one of his biographers took a guess at how he came to his conclusion: Despite Justice Powell's aversion to the idea of justifying racial preferences, he also saw them as socially necessary. It was the only way, he thought, to achieve diversity in a society where negative racial bias still exists.

That thinking could provide important direction for the current justices. They'll need to remember, if they consider the Michigan case, that race matters in nearly every sector of American life, so it would be astonishingly naive for colleges and universities to pretend otherwise.

Indeed, when Texas and California eliminated college affirmative action programs recently, both experienced dramatic and unacceptable drops in minority enrollment.

Moreover, racial diversity is itself a virtue, and the University of Michigan Law School's arguments before the appeals court turned on that issue. Dean Jeffrey S. Lehman has said a racially integrated class enriches classroom dialogue and experience as much as a class that includes Capitol Hill interns or kids who have studied abroad.

The challenge for the court will be balancing those interests against the penchant toward rigid numbers, and even worse, a tendency to pursue numerical diversity at any cost.

Better and clearer than Bakke -- but not dismissive of its intent -- should be the goal the Supreme Court attempts to achieve.

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