[ OUR OPINION ]

Race rulings could
result in vague policies

THE ISSUE The U.S. Supreme Court upheld the University of Michigan law school's method of seeking racial diversity but rejected Michigan's undergraduate affirmative action system.

In rejecting the University of Michigan's point-based system of affirmative action but upholding the flexible policy of the same university's law school, the U.S. Supreme Court has endorsed further efforts to assure racial diversity on college campuses. The high court's decisions seem to ban any numerical methods of achieving diversity, preferring flexibility, but they leave a huge question: At what point does flexible become capricious?

The high court ruled 25 years ago in the landmark Bakke decision that racial quotas were unconstitutional but that colleges and universities could recognize race as a factor in admissions and hiring. Some institutions adopted scoring systems, with applicants receiving points in such categories as test scores and high school grades, along with being an underrepresented minority. Minority applicants to Michigan's undergraduate program have been awarded 20 points in a 150-point index.

The law school's policy is less rigid, giving African-American, Latino and Native American applicants a "plus" so the school's diversity could reach an unquantified "critical mass." That is similar to the University of Hawaii's policy in considering applications from Filipino, Hawaiian, Samoan, African-American, Hispanic and Southeast Asian students, who have been identified as underrepresented compared with general school-age numbers. UH's affirmative action policy does not have a point system.

School administrators and lawyers will be poring over the court's rulings to parse phrases for what is allowed and what is not. The 5-4 ruling in the law-school case, written by Justice Sandra Day O'Connor, permits a "narrow tailoring" of programs in which race is used "in a flexible, nonmechanical way." In the 6-3 majority opinion in the undergraduate case, Chief Justice William H. Rehnquist wrote that assigning specific points to applicants because of their minority racial status "is not narrowly tailored to achieve the interest in educational diversity."

Does that mean the justices agree that banning mathematical formulas will lead to acceptably tailored programs? Not hardly. O'Connor and Rehnquist disagree on what "narrowly tailored" means. O'Connor voted with the majority in both opinions. Rehnquist voted against the law school's method of achieving diversity, which he concluded also needs to be sent back to the tailor.

Affirmative action has been beneficial to higher education, and the law-school ruling recognizes the need for continuation of acceptable programs. In the years since the Bakke ruling, the number of minority applicants with high grades and test scores has increased. If that trend continues for the next quarter-century, O'Connor suggested, proponents of affirmative action will be unable to show a compelling interest to use racial preferences.