[Congressional Record Volume 149, Number 95 (Wednesday, June 25, 2003)]
[Senate]
[Pages S8548-S8549]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               SUPREME COURT AFFIRMATIVE ACTION DECISION

  Mr. KENNEDY. Mr. President, on Monday, in a landmark decision, the 
Supreme Court made clear that colleges and universities can adopt 
admissions policies that take students' racial and ethnic background 
into account to achieve a diverse student body. The Court's decision is 
a resounding vindication for the fundamental principle that affirmative 
action can be used in education to promote opportunity for all, and 
encourage interaction among students of diverse backgrounds.
  Our diversity is our greatest strength, and this decision recognizes 
the broad benefits of diversity in higher education. A diverse student 
body benefits all students at our colleges and universities and helps 
prepare students for our increasingly diverse workforce and our diverse 
society.
  As the opinion of Justice O'Connor states, ``Major American 
businesses have made clear that the skills needed in today's 
increasingly global marketplace can only be developed through exposure 
to widely diverse people, cultures, ideas and viewpoints.'' High-
ranking military leaders, too, have stated that affirmative action is 
necessary for promoting a ``qualified, racially diverse officer 
corps,'' to enable the Armed Forces to protect national security.
  The Court's decision supports the paramount importance of education 
as a gateway to equal opportunity, reaffirming once again the Court's 
historic decision nearly 50 years ago in Brown v. Board of Education. 
Few areas are as vital to sustaining our democracy that education. Our 
institutions of higher education, like our public schools, are 
indispensable in broadening the minds of young adults, and training 
them for leadership.
  As the Court stated in Brown, and emphasized again in Monday's 
opinion, ``Education is the very foundation of good citizenship.'' The 
Nation is becoming increasingly diverse, and it is important for all 
our institutions to reflect that rich diversity.
  The Court stated: ``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. Access to education must be inclusive of 
talented and qualified individuals of every race and ethnicity, so that 
all members of our heterogeneous society may participate in the 
education institutions that provide the training and education 
necessary to succeed in America.''

  The Supreme Court has made clear that a well-crafted affirmative 
action admissions program like that of the University of Michigan Law 
School is constitutional. It is flexible and allows for individualized 
review of each applicant, and it is not a quota. The Court also made 
clear that States do not have to promote diversity only by relying on 
percentage plan programs which guarantee college admission to all 
students above a certain class-rank in every high school graduating 
class in the State.
  As the Court recognized, such programs do not work for graduate and 
professional schools. In fact, percentage plans can prevent colleges 
and universities from making the individualized assessment of 
applicants that is necessary to assemble a diverse student body.
  Our country has made extraordinary progress over the past half 
century toward equality of opportunity in all aspects of our society, 
and affirmative action has been an indispensable part of that success. 
But we all know that we have to do more to make the promise of Brown a 
reality. Even with affirmative action, vast inequities remain in access 
to higher education especially for African-Americans and Latinos.
  We know that civil rights is still the unfinished business in 
America. Half a century after Brown, our schools remain starkly divided 
along racial and ethnic lines, and minority children are too often 
relegated to inadequate schools. We have to do more to see that 
minority children are not forced to think of an institution like the 
University of Michigan as an impossible dream. This decision by the 
Supreme Court is another major step by the Court to make that dream 
possible, and it is difficult to believe that either this Congress or 
this President would approve a Supreme Court nominee who would reverse 
that decision.
  Mr. FEINGOLD. Mr. President, it has been nearly 50 years since the 
Supreme Court ruled segregation in schools unconstitutional in Brown v. 
Board of Education of Topeka, Kansas. Then-Chief Justice Earl Warren 
said: ``We conclude that in the field of public education the doctrine 
of `separate but equal' has no place. Separate educational facilities 
are inherently unequal.''
  This week, the tenet of equality that lies at the foundation of the 
Brown decision was reaffirmed and strengthened. In fact, it is becoming 
more and

[[Page S8549]]

more infused into our Nation's increasingly diverse identity.
  This week, the U.S. Supreme Court reaffirmed the principle that 
diversity is a compelling national interest and that race can be a 
factor in higher education admissions decisions. The Court upheld the 
admissions policy at the University of Michigan Law School in Grutter 
v. Bollinger.
  Justice Sandra Day O'Connor, on behalf of the 5-to-4 majority and 
citing Brown, wrote: ``This Court has long recognized that 'education . 
. . is the very foundation of good citizenship.''
  Justice O'Connor and the Supreme Court found the use of race in the 
Michigan Law School admissions policy consistent with the aspirations 
of the 1954 Supreme Court in deciding Brown. O'Connor stated for the 
Court:

       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. All members of our 
     heterogeneous society must have confidence in the openness 
     and integrity of the educational institutions with which the 
     law interacts . . . Access to legal education (and thus, the 
     legal profession) must be inclusive of talented and qualified 
     individuals of every race and ethnicity, so that all members 
     of our heterogenous society may participate in the 
     educational institutions that provide the training and 
     education necessary to succeed in America.

  The Court's decision keeps this country on a path toward the day when 
our children and our children's children will not be able to envision a 
pre-Brown v. Board America. In fact, Justice O'Connor cites the Brown 
opinion in writing the Grutter decision. Justice O'Connor's words 
reflect a powerful American value that is really a strength of our 
Nation--diversity. It is in the best interest of all Americans to seek 
diversity in all segments of our society, including educational 
institutions, the military, and the workplace. To fail to do so, in 
fact, would be to misrepresent our national identity.
  I am heartened, by the large number of amicus briefs filed in support 
of affirmative action. These briefs showed the Court the deep 
importance of diversity to so many people and institutions across the 
Nation. I am pleased to have had the opportunity to join Senator 
Kennedy and several of our colleagues in signing one such brief, urging 
the court to uphold the Bakke decision and support Michigan's admission 
policies.
  One of the greatest strengths of our Nation is its guarantee of equal 
educational opportunities for all students. Our Nation's colleges and 
universities are the envy of the world for their rigorous courses of 
study and high-caliber professors, but also for their enriching 
environment of students from a range of racial, ethnic, and social and 
economic backgrounds representing every part of America, if not the 
world. I am proud that the Court has affirmed the importance of campus 
diversity and deemed it a constitutionally permissible governmental 
interest.
  In the Grutter case, the Court decisively allowed race and ethnicity 
to be considered in combination with other factors in an admissions 
decision. I don't believe that the decision striking down the specific 
point system used in the undergraduate admissions policy will be a 
serious impediment to the implementation of race-sensitive admissions 
policies at colleges and universities.
  In the 50 years since the walls of segregation began to crumble, we 
have traveled many miles on the road toward guaranteeing civil rights 
to all Americans. But this week's decision affirming diversity as a 
compelling national interest--and thus declaring affirmative action 
constitutional and viable--confirms our Nation's progress in ways 
unmeasurable by miles or years. The Court's decision is more than a 
victory. It is a milestone. It is a testament to the strength of Brown 
and our Constitution's equal protection guarantees.

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