ASHINGTON, June 23 — The Supreme Court preserved affirmative action in university admissions today by a one-vote margin but with a forceful endorsement of the role of racial diversity on campus in achieving a more equal society.
"In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity," Justice Sandra Day O'Connor wrote in her 5-to-4 majority opinion upholding the University of Michigan's consideration of race for admission to its law school.
At the same time, by a vote of 6 to 3, and with Justice O'Connor in the majority as well, the court invalidated the same university's affirmative action program for admission to its undergraduate college. The difference was in the details: the undergraduate school uses a point system based in part on race.
As a result, the pair of decisions — the court's first in a generation to address race in university admissions — provided a blueprint for taking race into account without running afoul of the Constitution's guarantee of equal protection.
The law school engages in a "highly individualized, holistic review of each applicant's file" in which race counts as a factor but is not used in a "mechanical way," Justice O'Connor said. For that reason, she said, it was consistent with Justice Lewis F. Powell Jr.'s controlling opinion in the Bakke case in 1978, which permitted the use of race as one "plus factor."
The result of today's rulings was that Justice Powell's solitary view that there was a "compelling state interest" in racial diversity, a position that had appeared undermined by the court's subsequent equal protection rulings in other contexts and that some lower federal courts had boldly repudiated, has now been endorsed by five justices and placed on a stronger footing than ever before.
President Bush had asked the court to declare the universities' policies unconstitutional.
Although the four dissenters in the law school case did not directly confront the continued validity of the Bakke precedent, it was clear that both Justices Clarence Thomas and Antonin Scalia would have overturned it if they could. "Every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all," Justice Thomas said in a dissenting opinion that Justice Scalia also signed.
Chief Justice William H. Rehnquist wrote the principal dissenting opinion that spoke for all four, including Justice Anthony M. Kennedy. He took a more oblique approach that attacked the law school program not so much for its premise as for how it works in practice, dismissing it as "a carefully managed program designed to ensure proportionate representation of applicants from selected minority groups."
Justice Kennedy, writing separately, said that Justice Powell's opinion in the Bakke case "states the correct rule for resolving this case," but that the court had not applied the "meaningful strict scrutiny" under which the program should have been found unconstitutional.
Joining Justice O'Connor's majority opinion in Grutter v. Bollinger, No. 02-241, were Justice Ruth Bader Ginsburg, who wrote a brief concurring opinion, and Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.
By contrast with the law school, the admissions program for Michigan's College of Literature, Science, and the Arts awards 20 points on a scale of 150 for membership in an underrepresented minority group — blacks, Hispanics, and American Indians — with 100 points guaranteeing admission to the university's main undergraduate school. Fixed numbers of points are also awarded for other factors, including alumni connections, geography and athletics.
The inclusion of race on the scale, with the result that nearly all qualified minority applicants are admitted to the competitive program while many qualified white students are turned away, demonstrates the absence of the "individualized consideration" that the Bakke decision required, Chief Justice Rehnquist wrote. Justice O'Connor echoed that conclusion, describing the undergraduate program as a "nonindividualized, mechanical one."
Justice Breyer, concurring separately, did not sign the Rehnquist opinion. The dissenters were Justices Ginsburg and Souter, who said the majority opinion was incorrect on the merits, and Justice Stevens. He said the case should have been dismissed because the plaintiffs, two white students who had failed to win admission under an earlier version of the undergraduate admissions policy, lacked standing to challenge the current policy that the university adopted in 1998.
The rulings today came as an enormous relief to the civil rights community, as well as to public and private colleges and universities around the country, dozens of which had joined briefs supporting Michigan. Although the constitutional issue applied directly only to public institutions, federal law has given private colleges an equal stake in the outcome by forbidding racial discrimination by educational institutions that receive federal money.
President Bush issued a statement praising the court "for recognizing the value of diversity on our nation's campuses." He added, "Like the court, I look forward to the day when America will truly be a color-blind society."
The statement made no reference to the fact that the administration had asked the court to invalidate both Michigan programs as thinly disguised quota systems that violated the holding of the Bakke decision. Mr. Bush had personally announced in a televised address in January that his administration was siding against the university.
"A reader would never know that the administration's brief derided the law school's goal of having a critical mass of underrepresented students in each class," the liberal advocacy group People for the American Way said in a statement.
The administration's brief faulted the university for having failed to consider "race-neutral alternatives" before adopting its affirmative action plans. The only example the brief offered as an acceptable alternative was the plan now used in Texas, California and Florida, where admission is offered automatically to high school graduates above a particular class rank.
In her majority opinion today, Justice O'Connor was close to dismissive of the administration's analysis. She said the brief did not explain "how such plans could work for graduate and professional schools." She added: "Moreover, even assuming such plans are race-neutral, they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university."
The court's precedents, including the Bakke decision, made clear that any official consideration of race must survive a standard of judicial review known as strict scrutiny, meaning that the policy must serve a compelling state interest and be narrowly tailored to achieve that interest. Consequently, Michigan faced two analytical hurdles in defending its programs in lawsuits brought by three disappointed white applicants, Barbara Grutter in the law school case and Jennifer Gratz and Patrick Hamacher in the undergraduate case, Gratz v. Bollinger, No. 02-516. The university had to persuade the court that racial diversity was a compelling interest that was appropriately served by the challenged programs.
Justice O'Connor's opinion in the law school case embraced the diversity rationale. "Effective participation by members of all racial and ethnic groups in the civil life of our nation is essential if the dream of one nation, indivisible, is to be realized," she said. She added that law schools, in particular, served as gateways to economic and political leadership.
"Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity," she said, "so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America."
Her opinion cited a number of briefs from businesses, colleges and, with particular emphasis, two dozen retired senior military officers and former commandants of the service academies, who told the court that affirmative action was essential to maintaining an integrated officer corps.
The real debate came down to whether either program was narrowly tailored enough. With its 20-point formula, the undergraduate program had always appeared more vulnerable. The Federal District Court in Detroit had invalidated both programs. On appeal, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the law school program but never issued an opinion after hearing arguments on the undergraduate program.
In concluding her opinion, Justice O'Connor noted that 25 years had passed since Bakke and said affirmative action should "no longer be necessary" 25 years from now. That led Curt A. Levey, director of legal and public affairs at the Center for Individual Rights, the law firm representing the plaintiffs, to observe that universities would start facing new lawsuits 20 years from now if they did not heed the court's advice.
"The court says affirmative action is not timeless, and it had better not be," Mr. Levey said in an interview.
In and Out of Court: Affirmative Action
JULY 2, 1964
Civil Rights Act of 1964
The act established legal recourse against discrimination based on race, color, religion, sex, or national origin. This protection covered public accommodations, public transportation, public education, and federally assisted programs.
JUNE 28, 1978
Regents of the University of California v. Bakke
In a 5-to-4 vote, the Supreme Court struck down an admissions program that reserved a fixed number of spots for minorities, but allowed that race may be considered as one of a number of factors. The controlling opinion stated that diversity contributes to a richer educational environment.
MARCH 18, 1996
Hopwood v. University of Texas Law School
The Court of Appeals for the Fifth Circuit suspended an affirmative action admissions program, outlawing any preferences whatsoever based on race. The decision rejected the Bakke notion of diversity as a compelling state interest.
NOV. 5, 1996
Proposition 209 in California
Californians voted to forbid any consideration of race, gender or national origin in hiring or school admissions.
DEC. 3, 1998
Initiative 200 in Washington
Washington State voters eliminated all preferential treatment based on race or gender in government hiring and school admissions.
FEB. 22, 2000
“One Florida” Initiative
The Florida cabinet enacted the education component of Gov. Jeb Bush’s “One Florida” program, which ended the consideration of race in university admissions and state contracts. It instead called for more aid based on financial need.
JUNE 23, 2003
University of Michigan rulings
The Supreme Court upheld an affirmative action program at the University of Michigan law school, but struck down the undergraduate system that awarded extra points to minority students.