After 25 Years, a Road Map for Diversity on Campus

By Jacques Steinberg

June 23, 2004 - Much of the secrecy that has shrouded the admissions processes at highly selective private colleges over the past quarter-century can be attributed to a basic ambiguity in the landmark Bakke decision: admissions committees could never be sure whether a majority of the Supreme Court had supported the argument that engineering a diverse freshman class was of compelling interest to the state.

They got that long-awaited assurance yesterday.

"This is what I think universities have been craving: a road map," said James O. Freedman, a former president of Dartmouth and former dean of the University of Pennsylvania Law School. "This legitimates legally what we all thought was educationally appropriate."

In upholding the University of Michigan Law School admissions program, the Supreme Court effectively endorsed the post-Bakke recipe that has guided not only Dartmouth and the University of Pennsylvania but also Harvard, Princeton, the University of Chicago, Stanford and dozens of other selective undergraduate and graduate institutions.

On those campuses, as at Michigan Law, an applicant's race is but one ingredient in an evaluative mishmash that also includes grade point averages, standardized test scores, personal essays, athletic ability, musical talent, alumni connection and teacher recommendations. Each is measured in varying degrees, depending not only on the candidate but on the subjectivity of the admissions officer considering the file.

One of the few things the court said admissions officers could not do, in a related case involving undergraduate admissions at Michigan, was to establish mechanized formulas — at least those that give extra points for race. Michigan had given blacks, Hispanics and Native Americans an automatic 20 points on a 150-point undergraduate admissions scale.

The rejection of such point systems could put a crimp in the computerized admissions policies of other large state universities that have employed race-sensitive formulas to assemble at least part of the student body — Ohio State, for example — sometimes as a way to take the measure of large numbers of applicants in systematic fashion.

It is not clear how many universities use such scales, though critics of affirmative action contend that some of the most competitive public institutions, often the flagships of state universities, employ point systems. And yet, many populous states like California, Texas and Florida have dismantled race-conscious policies in favor of those that accept a set percentage of students from every high school because of legal challenges and ballot initiatives.

While largely silent on those so-called percent plans, the court made it clear that it supported the position staked out by Justice Lewis F. Powell in 1978. Having cast the tie-breaking vote in the Bakke case, Justice Powell argued that an admissions officer could consider an applicant's race "a plus." At that time, however, his was one of six opinions — none of which intersected clearly on that seemingly central point.

In affirming the main justification for Justice Powell's position — that white students benefit educationally from the presence on campus of a "critical mass" of nonwhites, and vice versa — Justice Sandra Day O'Connor, writing for the majority yesterday, took pains to assure admissions officers that their instincts for what was educationally appropriate were, in most instances, protected by law.

"Cross-racial understanding," Justice O'Connor wrote, borrowing language from a lower court ruling, "helps to break down racial stereotypes" and better prepares graduates for the working world.

She added, "The law school's educational judgment that such diversity is essential to its educational mission is one to which we defer."

So important was the trail blazed by Justice Powell, Justice O'Connor suggested, that it also appeared to benefit the training of military officers. That notion had been underscored in briefs filed with the court by numerous military leaders, whose positions were cited high in Justice O'Connor's opinion.

The court majority appeared to advise yesterday that if universities were willing to invest the resources to follow the Michigan Law School model — and to painstakingly evaluate each applicant as "an individual," and not as a mere jumble of statistics — then they, too, would most likely find themselves on the right side of the law in trying to assemble a diverse class.

For those admissions officers who have long wondered what precisely Justice Powell meant when he talked about race being one "plus" among many, Justice O'Connor offered several answers drawn from the Michigan Law school policy.

She indicated, for example, that the law school was not obligated to accept those applicants with the highest grades and test scores — or to reject those with the lowest — saying instead that it fell to the individual institution to establish criteria for admission.

Similarly, she said that admissions officers were permitted to consider so-called soft variables, which Michigan Law defines as including "the enthusiasm of recommenders, the quality of the undergraduate institution" — for an undergraduate applicant, the quality of one's high school is presumably relevant — as well as the applicant's "likely contributions to the intellectual and social life of the institution."

In siding with Chief Justice William H. Rehnquist in the undergraduate case and in her own opinion on the law school program, Justice O'Connor also stipulated some practices that were not constitutional. She reiterated, for example, the argument in Bakke that barred quotas, which Justice Powell had defined as isolating "a category of applicants with certain desired qualifications from competition with all other applicants."

But she did not challenge the so-called daily reports that Michigan Law and many other institutions consult during the admissions process to track the ethnic and racial breakdown of a class as it takes shape, often to ensure that the final composition of the class is within range of rough targets.

For all the ambiguity in Bakke that the law school decision appeared to resolve, Justice Antonin Scalia, in a strongly worded dissent, argued that the majority had created a whole new set of unanswered questions.

"Some future lawsuits," Justice Scalia wrote, would surely seek to plumb whether other admissions programs include "enough evaluation of the applicant `as an individual.' "

But for supporters of affirmative action like Mr. Freedman, the former Dartmouth president, yesterday was a day to celebrate the court's acknowledgement that students learn much from living and studying with a broad cross-section of classmates. Mr. Freedman said he traced that idea not only to Justice Powell but as far back as the 19th century, to a favorite quotation from Emerson.

"I pay the schoolmaster," Emerson wrote, "but 'tis the schoolboys that educate my son."