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Supreme Court Set to Review Affirmative Action at Colleges

By David G. Savage

The Supreme Court announced Monday that it will decide whether the United States’ colleges and universities can continue to use affirmative action in choosing new students, marking the first time the court has revisited the issue since the Bakke decision in 1978.

The justices took up two appeals from white applicants who were rejected by the University of Michigan and its law school, despite their strong qualifications.

If the Supreme Court were to outlaw the explicit use of race in college admissions, the ruling would have broad impact.

Federal education law forbids race discrimination in colleges that receive federal funds, and lawyers say discrimination that violates the equal-protection standard also violates the federal education law.

“What they decide in this case will apply to private institutions as well,” said Sheldon Steinbach, general counsel for the American Council on Education, the Washington lobbying group for higher education.

In one of the University of Michigan cases, Jennifer Gratz, a white high school senior with a 3.8 grade point average, was turned away by the Ann Arbor campus in 1995. She blamed her rejection on the preferences given to black and Hispanic applicants.

She and another woman, Barbara Grutter, who was rejected by the law school, became the lead plaintiffs in lawsuits that say “racial preferences in student admissions” violate the Constitution’s guarantee of the equal protection of the laws.

University officials admit they give a decided edge to minority applicants, but they say their affirmative-action policy is needed to ensure racial diversity.

“Now is not the time to turn back the clock,” University of Michigan President Mary Sue Coleman said. “Race still matters in our society.” A ruling rejecting the use of affirmative action “could result in the immediate resegregation of our nation’s top colleges and universities,” she said.

Since 1989, the Supreme Court has rejected affirmative action in a series of settings, but it has done so by 5-4 votes. For example, the court said cities cannot set aside some of their public contracts for black and Hispanic entrepreneurs. It also rejected race-based preferences in federal contracts, and struck down “racial gerrymandering” by state legislatures.

In 1978, Justice Lewis J. Powell set forth the “plus” factor standard in the case of Allan Bakke, a well-qualified white applicant to the medical school at the University of California, Davis. Bakke alleged in a lawsuit that he was rejected because a preference was given to black and Hispanic applicants. He won in a 5-4 decision that said the medical school had maintained an illegal quota by reserving 16 of its 100 slots for minorities.

Powell’s “plus” factor, laid out in a separate opinion, said that colleges may not use quotas or treat black and white students differently because of their race. However, admission officers can take a student’s race into account “in the interest of diversity,” Powell wrote.