Racial 'affirmative action' programmes in US universities that give a helping hand to under-represented minorities are opposed by many conservatives, including the Bush administration. But they have been vindicated in a hugely important court ruling this week, writes Lee Bollinger.
On Monday the US Supreme Court delivered the most important decision dealing with affirmative action - perhaps the most important decision dealing with race in the United States - in a quarter of a century. The court's decision is a great victory for American higher education, and for the nation as a whole.
Writing for the majority in the case dealing with the admissions policy of the University of Michigan Law School, Justice Sandra Day O'Connor declared that the constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."
While a 6- 3 decision struck down an aspect of the university's undergraduate admissions procedure, which it viewed as "not narrowly tailored to achieve educational diversity", the court affirmed the central principle set forth in Justice Lewis Powell's opinion in Regents of the University of California v Bakke in 1978 that race may be considered by colleges and universities as a factor in making admissions decisions.
The court also explicitly endorsed the view that the government (here the public University of Michigan) does have a compelling interest in obtaining the educational benefits that derive from having a diverse law school student body. It recognised that those educational benefits are "substantial", "important and laudable".
It stated that the university's law school admissions policy "promotes 'cross-racial understanding', helps to break down racial stereotypes, and 'enables \ to better understand persons of different races'." Referring to friend-of-the-court briefs from major American businesses and "high-ranking retired officers and civilian leaders of the United States military", the court noted that the "benefits are not theoretical but real".
Especially gratifying is the court's statement, quoting Brown v Board of Education, that "education is the very foundation of good citizenship". For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity . . . Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realised."
The court's decision, then, suggests that the court knows what the nation knows: that race still matters in the United States, and that as we as a nation seek to treat all Americans fairly, treat them equitably and as individuals, college and university admissions offices cannot be barred from looking at race.
As Justice Harry Blackmun wrote in Bakke, "It would be impossible to arrange an affirmative-action programme in a racially neutral way and to have it successful . . . In order to get beyond racism, we must first take account of race. There is no other way."
What, many might ask, at the end of the day does this really mean for higher education in the US? Against the alternative of eliminating consideration of race in admissions, the decision is of immense significance. There are no effective alternatives to achieving an integrated student body, at least without sustaining enormous costs to the quality and character of education.
Furthermore, a negative decision would have reached throughout the nation's colleges and universities, private as well as public, because statutory law incorporates any 14th Amendment doctrine directly applicable to public institutions. The alternative, in short, would have been a change in educational course of enormous proportions.
What the positive decision in this case did was, however, even better and more significant than Bakke. No simple majority emerged from that earlier case; Powell's famous opinion upholding the use of race under limited circumstances stood alone and required extensive analysis to make it into precedent. Now we have a clear majority and a clear precedent.
Moreover, the rationales for the educational benefits of diversity are more extensive than any that have been given before. That helps make the value of the decision as a precedent even stronger.
And, finally, it is of the highest importance to recognise that the law school policy can be applied throughout all other colleges and universities. Nothing about this policy makes it peculiarly relevant for admissions decisions regarding law schools.
The Michigan undergraduate admissions policy, which the court found flawed, awarded points for race and ethnicity. The only reason for that system was to ensure consistency across many different applications reviewed by many different admissions counsellors.
Nothing precludes the university from now embracing a non-quantitative method that permits counsellors to consider "race" as one among many factors. And that will be true of every college admissions programme in the country.
It is, therefore, misleading and inaccurate to think of what the Supreme Court has done as a "split" or "murky" decision in this area of constitutional law. It is about as clear as constitutional law gets.
By rejecting an absolutist argument - by affirming the notion that race may be considered in an appropriate manner in the admissions process - the court has helped ensure that public and private colleges and universities in the United States will remain accessible to all Americans of all backgrounds. - (LA Times-Washington Post Service)
Lee Bollinger is president of Columbia University and former president of the University of Michigan