# Supreme court mixed decision on Affirmative Action **URL:** \ **Category:** Great Debates\ **Created:** [June 23, 2003, 4:11pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794 "2003-06-23T16:11:48Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 23, 2003, 4:11pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/1 "2003-06-23T16:11:48Z")
[Supreme Court rules on U of Michigan AA case](http://story.news.yahoo.com/news?tmpl=story&cid=578&ncid=578&e=1&u=/nm/20030623/ts_nm/court_race_dc) > [@](#): > > The nation’s highest court upheld the University of Michigan’s affirmative action policy that favors minorities who apply to its law school, but struck down the program for its undergraduate college because it went too far in providing an advantage to minorities. The Supreme court ruled against the Undergrad program of AA at U of M, in which 20 pts are added to the application “scores” of 3 minority groups (Blacks, Hispanics, Native Americans) but let stand the Law school system, which takes race into account, but not on a numerical basis by adding points. This has been a common topic in the forum, but the new SCotUS decision gives some interesting food for thought. 1. How is “making race one factor”, as in the law school, actually different from adding points to the applications of minority studients? According to the cite, above, the Law School actually seems to be promoting a quota system, which the SCotUS has already ruled to be unconstitional: > [@](#): > > In the law school case, the admissions process does not involve a point system, but the university seeks the enrollment of a “critical mass” of minority students, which has ranged between 10 percent and 17 percent of each class. But this obviously wasn’t enough of an issue to get a majority to rule against the case. Maybe it’s just the scientist in me, but adding points seems to be a clean, simple way of ensuring a “diverse” student body, if that is the goal. And it’s essentially no different than using some qualitative criteria. (I’m personally opposed to both methods, but I don’t really see the difference.) 1. Would the SCotUS decision have been different if the u-grad system used, say, 5 pts (out of a total 150) for minority students instead of 20? Thoughts about what this new decision means? ---
**Author:** ![CrankyAsAnOldMan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crankyasanoldman/32/11670_2.png) [@CrankyAsAnOldMan](https://boards.straightdope.com/u/CrankyAsAnOldMan)\ **Post date:** [June 23, 2003, 4:38pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/2 "2003-06-23T16:38:32Z")
I am pretty puzzled, myself, because as I understand the law school system, they really are aiming for a particular number or percentage. A “critical mass,” in their own words. The undergrad system, with which I am much more familiar, has a set “system” for awarding points, but the end result in terms of numbers or %age of the class which is non-white is extremely variable year to year, depending on the strength of the applicant pool and the strength and numbers of the underrepresented minority pool. If the UG system was meant to get a set number (or a “quota”) they’d have to change the formula and # of “bonus points” each year. Which they don’t so. So overall, the law school seems more quota-like, to me. And we all know the q-word is a dirty one. For that reason, I thought the law school was where we were more vulnerable. I guess this explains why I didn’t get the call to join the legal team. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 23, 2003, 4:46pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/3 "2003-06-23T16:46:17Z")
[Law school opinion](http://www.supremecourtus.gov/opinions/02pdf/02-241.pdf). [Undergrad opinion](http://www.supremecourtus.gov/opinions/02pdf/02-516.pdf). I have not read them yet, but hope to do so this evening. ---
**Author:** ![Tigers2B1](https://avatars.discourse-cdn.com/v4/letter/t/9fc29f/32.png) [@Tigers2B1](https://boards.straightdope.com/u/Tigers2B1)\ **Post date:** [June 23, 2003, 4:46pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/4 "2003-06-23T16:46:34Z")
Good gosh almighty – what is “critical mass?” At least you can get some sort of idea regarding the extent of the abuses under a numerical quota. Are we devolving into another type of “separate but equal” standard? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 23, 2003, 4:54pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/5 "2003-06-23T16:54:53Z")
Minty: Thanks for the cites. I’ll take a look and see if the add more clarity. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 23, 2003, 5:28pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/6 "2003-06-23T17:28:56Z")
from the court decision: > [@](#): > > Finally, race-conscious admissions policies must be lim-ited in time. The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. Interesting. A theory of justice hat varies over as short a time period as 25 yrs. But this is a ticking bomb for supporters of AA. Clearly, the “25 years” is meant to be an esitmate, and it might seem a long ways away, but imagine if that claim had been made in 1978 (25 yrs ago, and cooncidentally, almost the exact time frame as the Bakke decision). ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [June 23, 2003, 5:43pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/7 "2003-06-23T17:43:31Z")
My impression is that the court is saying that it’s okay if you are sloppy and vague about what you are doing, but bad if you are specific about it. Am I way off in this impression? If it’s wrong to do it systematically, how can it be wrong to do it unsystematically, but to the same basic effect? People have been hoping for a clear decision on this ever since Bakke, and this was anything but a clear decision. ---
**Author:** ![yoyo3500](https://avatars.discourse-cdn.com/v4/letter/y/5daacb/32.png) [@yoyo3500](https://boards.straightdope.com/u/yoyo3500)\ **Post date:** [June 23, 2003, 6:05pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/8 "2003-06-23T18:05:58Z")
I haven’t fully thought this one out, but it seems that the Court agrees with the idea that methodically favoring candidates based on race is not right (perhaps since any specific method might be too arbitrary or unfair?..), but the Court put “value” (my term) to the idea of racial favoritism for the purpose of racial diversity. Perhaps the Court thought affirmative action to be wrong, but didn’t want to be the Court to say so difinitively? It does seem like O’Connor wanted to hedge her decision in a way to be fair, yet not rock her political party’s boat… In all, it seems to me that the Court made a very wishy-washy decision and left open the possibility, if not the inevitability, of the need for a future affirmative action case to clarify what exactly the court feels is a correct usage of racial preference. ---
**Author:** ![frixxxx](https://avatars.discourse-cdn.com/v4/letter/f/eb9ed0/32.png) [@frixxxx](https://boards.straightdope.com/u/frixxxx)\ **Post date:** [June 23, 2003, 7:00pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/9 "2003-06-23T19:00:43Z")
What is the deal here? I need to understand the “quota” that is being discussed. Correct me if I’m way off base here! For example purposes: National dispersing by race: Caucasian: 60 % African-American: 15 % Hispanic: 10 % Asian: 10 % Other: 5 % Does the enrollment have to match population represnted above or do the 5 groups get 20% each? ---
**Author:** ![frixxxx](https://avatars.discourse-cdn.com/v4/letter/f/eb9ed0/32.png) [@frixxxx](https://boards.straightdope.com/u/frixxxx)\ **Post date:** [June 23, 2003, 7:01pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/10 "2003-06-23T19:01:17Z")
What is the deal here? I need to understand the “quota” that is being discussed. Correct me if I’m way off base here! For example purposes: National dispersing by race: Caucasian: 60 % African-American: 15 % Hispanic: 10 % Asian: 10 % Other: 5 % Does the enrollment have to match population represented above or do the 5 groups get 20% each? ---
**Author:** ![CrankyAsAnOldMan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crankyasanoldman/32/11670_2.png) [@CrankyAsAnOldMan](https://boards.straightdope.com/u/CrankyAsAnOldMan)\ **Post date:** [June 23, 2003, 8:00pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/11 "2003-06-23T20:00:15Z")
frixxx, as I understand it, U-M has not stated a goal that it wants to match the proportions each group represents according to a state or national census. White and asians are overrepresented in the present campus makeup, while other groups are underrepresented. And that’s true even with the affirmative action programs in place. They want, um, enough. Enough so that classrooms and learning-living communities are at least somewhat multiethnic. I don’t think they can put a number on that, although the law school, I guess, tried to. ---
**Author:** ![middleman](https://avatars.discourse-cdn.com/v4/letter/m/e9a140/32.png) [@middleman](https://boards.straightdope.com/u/middleman)\ **Post date:** [June 23, 2003, 8:02pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/12 "2003-06-23T20:02:50Z")
I haven’t read the rulings themselves, but exactly how different from Bakke is this new “landmark” ruling. Sounds about as original as American Pie 2. ---
**Author:** ![ISiddiqui](https://avatars.discourse-cdn.com/v4/letter/i/97f17d/32.png) [@ISiddiqui](https://boards.straightdope.com/u/ISiddiqui)\ **Post date:** [June 23, 2003, 8:54pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/13 "2003-06-23T20:54:48Z")
I wrote this on another forum: \*Skimming through the opinions, I see some interesting things. 1st, the main reason why O’Conner backs the law school policy, but NOT the undergrad’s policy is because of ‘individualized review of applicants’. Under the law school’s application policy, every applicant is reviewed individually and race might be a boost to his application. Diversity qualifications are considered on a case-by-case basis. In the undergrad case, it is simply 20 points for being an underrepresented minority. There is little, if any, individualized review of applicants under this system. Diversity qualifications are applied automatically to everyone that falls under the catagory in undergrad. Therefore the undergrad’s policy is NOT narrowly tailored to the compelling governmental interest in diversity (Grutter, ie the law school case, held that diversity is a compelling interest), while the law school’s is (because it is individualized and may not always apply). Another consideration (and one that sways Rehnquist as well) is that while race counts for 20 points, other ‘diversity’ classifications such as leadership or art talent, etc. only can account for, at most, 5 points. So race counts FOUR times more than the maximum non-minority talented individual can recieve as a boost (even if he is the next Beethoven or Monet).\* – The question is why is the different than _Bakke_? Well that decision was a 4-4-1, and there has been disagreement as to what that court actually decided. Powell’s opinion (the 1) has been held up, but future appeals courts have said that only the decision is that which is binding (the narrowest agreement among five). THIS decision says, no, Powell’s decision should be precedent (more or less). It also definitely states (in _Grutter_ that diversity is a compelling interest, you simply cannot make it a definte boost. It can be a minor boost, but only upon individual review of the application. One of the problems was how big a boost UM undergrad gave for race. It limits how much of a bump can be given, and says it can only be given under invidualized review. So it can bump a black guy over a white guy who are close on the waiting list or who are on the edge of getting denied, but can’t move a black guy over a bunch of others to get onto the waiting list (from the denied list), or to get onto the accepted list (from the waiting list). That’s basically, more or less, what it is saying. Small jumps ok, big jumps not ok. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [June 23, 2003, 8:56pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/14 "2003-06-23T20:56:46Z")
My impression is that the Court’s decision on Affirmative action said a little is OK, but a lot is too much. This decision is likely to lead to onging litigation trying to determine whether various individual plans are “a little” or “a lot” of preference. Here’s a wonderful [quote from an 1865 Frederick Douglass address] ([http://www.townhall.com/columnists/georgewill/gw20030623.shtml](http://www.townhall.com/columnists/georgewill/gw20030623.shtml)): > [@](#): > > The American people have always been anxious to know what they shall do with us. … Do nothing with us! Your doing with us has already played the mischief with us. … All I ask is, give (the negro) a chance to stand on his own legs. Let him alone! I certainly agree with that POV as regards Jews. I feel grateful that my family had change to find their way in American society without being burdened by “pro-Jewish” affirmative action. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [June 23, 2003, 9:00pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/15 "2003-06-23T21:00:02Z")
Correction: _I feel grateful that my family had a chance to find their way in American society without being burdened by “pro-Jewish” affirmative action._ ---
**Author:** ![middleman](https://avatars.discourse-cdn.com/v4/letter/m/e9a140/32.png) [@middleman](https://boards.straightdope.com/u/middleman)\ **Post date:** [June 23, 2003, 9:16pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/16 "2003-06-23T21:16:05Z")
> [@](#): > > \*Originally posted by ISiddiqui \* > \*\*I wrote this on another forum: > > \*Skimming through the opinions, I see some interesting things. > The question is why is the different than _Bakke_? Well that decision was a 4-4-1, and there has been disagreement as to what that court actually decided. Powell’s opinion (the 1) has been held up, but future appeals courts have said that only the decision is that which is binding (the narrowest agreement among five). > > THIS decision says, no, Powell’s decision should be precedent (more or less). > … > > \*\* That’s right. The “holding” in that case was Powell’s “Alone on My Island” Ruling/Dissent/Concurrence. Good call. Has anyone got to the cases themselves? Do they overrule or distinguish Hopwood (from the 5th Circuit)? I don’t remember how absolute Hopwood was. ---
**Author:** ![holmes](https://avatars.discourse-cdn.com/v4/letter/h/e95f7d/32.png) [@holmes](https://boards.straightdope.com/u/holmes)\ **Post date:** [June 23, 2003, 9:16pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/17 "2003-06-23T21:16:53Z")
[QUOTE] \*Originally posted by december \* \*\*My impression is that the Court’s decision on Affirmative action said a little is OK, but a lot is too much. This decision is likely to lead to onging litigation trying to determine whether various individual plans are “a little” or “a lot” of preference. Here’s a wonderful > [@](#): > > ([http://www.townhall.com/columnists/georgewill/gw20030623.shtml](http://www.townhall.com/columnists/georgewill/gw20030623.shtml)):I certainly agree with that POV as regards Jews. I feel grateful that my family had change to find their way in American society without being burdened by “pro-Jewish” affirmative action. \*\* \*\* why didn’t you include the link? I suppose because the speech in total didn’t support you typical revision view of the world.[WHAT THE BLACK MAN WANTS](http://www.frederickdouglass.org/speeches/#wants) - > [@](#): > > \_ > I ask my friends who are apologizing for not insisting upon this right, where can the black man look, in this country, for the assertion of his right, if he may not look to the Massachusetts Anti-Slavery Society? Where under the whole heavens can he look for sympathy, in asserting this right, if he may not look to this platform? Have you lifted us up to a certain height to see that we are men, and then are any disposed to leave us there, without seeing that we are put in possession of all our rights? We look naturally to this platform for the assertion of all our rights, and for this one especially. I understand the anti-slavery societies of this country to be based on two principles,–first, the freedom of the blacks of this country; and, second, the elevation of them. Let me not be misunderstood here. I am not asking for sympathy at the hands of abolitionists, sympathy at the hands of any. I think the American people are disposed often to be generous rather than just. I look over this country at the present time, and I see Educational Societies, Sanitary Commissions, Freedmen’s Associations, and the like,–all very good: but in regard to the colored people there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice. [Applause.] > > The American people have always been anxious to know what they shall do with us. Gen. Banks was distressed with solicitude as to what he should do with the Negro. Everybody has asked the question, and they learned to ask it early of the abolitionists, “What shall we do with the Negro?” I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are wormeaten at the core, if they are early ripe and disposed to fall, let them fall! I am not for tying or fastening them on the tree in any way, except by nature’s plan, and if they will not stay there, let them fall. And if the Negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! If you see him on his way to school, let him alone, don’t disturb him! If you see him going to the dinner table at a hotel, let him go! If you see him going to the ballot- box, let him alone, don’t disturb him! [Applause.] > > If you see him going into a work-shop, just let him alone,–your interference is doing him a positive injury. Gen. Banks’ “preparation” is of a piece with this attempt to prop up the Negro. Let him fall if he cannot stand alone! If the Negro cannot live by the line of eternal justice, so beautifully pictured to you in the illustration used by Mr. Phillips, the fault will not be yours, it will be his who made the Negro, and established that line for his government. [Applause.] > > Let him live or die by that. If you will only untie his hands, and give him a chance, I think he will live. He will work as readily for himself as the white man. A great many delusions have been swept away by this war. One was, that the Negro would not work; he has proved his ability to work. Another was, that the Negro would not fight; that he possessed only the most sheepish attributes of humanity; was a perfect lamb, or an “Uncle Tom;” disposed to take off his coat whenever required, fold his hands, and be whipped by anybody who wanted to whip him. But the war has proved that there is a great deal of human nature in the Negro, and that “he will fight,” as Mr. Quincy, our President, said, in earlier days than these, “when there is reasonable probability of his whipping anybody.” {Laughter and applause.}\* ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [June 23, 2003, 9:26pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/18 "2003-06-23T21:26:51Z")
> [@](#): > > \*Originally posted by holmes \* > \*\*\*\* why didn’t you include the link? I suppose because the speech in total didn’t support you typical revision view of the world.[WHAT THE BLACK MAN WANTS](http://www.frederickdouglass.org/speeches/#wants) > > \*\* No, I simply didn’t have the link to the original speech, but merely to the quoted excerpt. Thanks for the link to the entire speech. I don’t see where the excerpt that you quoted is so different from the briefer excerpt that I quoted. Apparently your interpretation is different from mine. ---
**Author:** ![ElJeffe](https://avatars.discourse-cdn.com/v4/letter/e/958977/32.png) [@ElJeffe](https://boards.straightdope.com/u/ElJeffe)\ **Post date:** [June 23, 2003, 9:31pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/19 "2003-06-23T21:31:30Z")
> [@](#): > > why didn’t you include the link? I suppose because the speech in total didn’t support you typical revision view of the world.WHAT THE BLACK MAN WANTS er… the speech pretty much exactly says what december’s snippet said. Which part of “_What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice._” did you not follow? Jeff ---
**Author:** ![Tigers2B1](https://avatars.discourse-cdn.com/v4/letter/t/9fc29f/32.png) [@Tigers2B1](https://boards.straightdope.com/u/Tigers2B1)\ **Post date:** [June 23, 2003, 9:31pm UTC](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794/20 "2003-06-23T21:31:33Z")
> [@](#): > > \*Originally posted by watsonwil \* > \*\*That’s right. The “holding” in that case was Powell’s “Alone on My Island” Ruling/Dissent/Concurrence. > > Good call. > > Has anyone got to the cases themselves? Do they overrule or distinguish Hopwood (from the 5th Circuit)? > > I don’t remember how absolute Hopwood was. \*\* It would appear to overturn _Hopwood_ since the 5th Circuit simply said that race-conscious admissions at the University of Texas law school themselves were unconstitutional. [http://www.ca5.uscourts.gov/opinions/pub/94/94-50569-cv0.htm](http://www.ca5.uscourts.gov/opinions/pub/94/94-50569-cv0.htm)][http://www.ca5.uscourts.gov/opinions/pub/9...4-50569-cv0.htm](http://www.ca5.uscourts.gov/opinions/pub/9...4-50569-cv0.htm) > [@](#): > > In summary, we hold that the University of Texas School of Law may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body, to combat the perceived effects of a hostile environment at the law school, to alleviate the law school’s poor reputation in the minority community, or to eliminate any present effects of past discrimination by actors other than the law school. Because the law school has proffered these justifications for its use of race in admissions, the plaintiffs have satisfied their burden of showing that they were scrutinized under an unconstitutional admissions system. [Next page](https://boards.straightdope.com/t/supreme-court-mixed-decision-on-affirmative-action/183794.md?page=2)