The Court reaffirmed these three principles a quarter-century later in the 2003 cases of , involving the admissions policy of the University of Michigan's law school, the majority ruled that an admissions process giving some advantage to "underrepresented minority students," but also taking into consideration a variety of other factors (applied strictly on an individual basis for each applicant), did not amount to a quota system and so was constitutionally permissible.But in , which looked at that university's undergraduate admissions policy, the Court found that, because it granted a set number of admission points to any racial-minority applicant (rather than considering each applicant individually as the law school did), it amounted to an impermissible quota system.
n affirmative-action cases, the Supreme Court never seems to learn the obvious lesson, or perhaps it is determined to finesse it.
The lesson is that universities that are keen to implement race-based affirmative action (and it is hard to find a highly or even moderately selective school that isn't) will figure out a way to do so unless the Court emphatically and clearly prohibits it.
The Court's superficial treatment of these questions reveals the profound weakness of its affirmative-action analysis.
DIVERSITY AND REMEDIATION First, the plurality had imposed for validating them.
Their costs vastly exceed their benefits, and in ways that should cause universities and courts alike to change course.
By considering both the legal architecture of the Court's affirmative-action jurisprudence and the empirical evidence regarding the effects of affirmative action in higher education, we can begin to see the defects of today's affirmative-action regime and the powerful case for change.Policies justified under that rationale thus could not survive if the "strict scrutiny" standard were seriously applied.The Court applies strict scrutiny when assessing race-based policies like affirmative action, whether in higher education, government hiring, or government contracts.In a case decided in April, the Court upheld Michigan voters' power to ban affirmative action — indeed, to ban the same affirmative-action program at the University of Michigan that the Supreme Court had upheld in 2003 — through a constitutional amendment adopted by voter referendum.But while Americans consistently voice a firm opposition to affirmative action in university admissions, the public debate surrounding the issue has been clouded by both weakly reasoned Supreme Court jurisprudence and incoherent factual claims by supporters of race-conscious admissions.Over the course of 35 years, the Court has upheld race-based affirmative-action programs based solely upon a so-called "diversity rationale." All of the current justices except Antonin Scalia and Clarence Thomas have accepted this rationale.But the premises underlying the diversity rationale for race-based affirmative action are empirically tenuous and theoretically implausible.The framers of the 14th Amendment may have countenanced affirmative action favoring former slaves and perhaps their descendants, but they would never have approved of today's affirmative-action programs, in which most of the potential beneficiaries are immigrants or descendants of immigrants.But regardless of whether such programs are constitutional or not, they are undesirable public policy, indeed perverse in practice.But the Court has often held, most recently in (a laxness that has defined courts' attitudes to affirmative-action programs ever since) deviated radically from her own more rigorous approach to that test in earlier cases.She finessed (or mischaracterized) five crucial questions that bear on affirmative-action policies: the nature of educational diversity; how educational diversity relates to both the "critical mass" idea at the core of Michigan's theory and the ethno-racial stereotypes that the school claimed to abhor; how the majority distinguished between valid and invalid preferences and how Michigan's program fared under that test; the existence of race-neutral alternatives; and the duration of preference policies.