[Congressional Record (Bound Edition), Volume 149 (2003), Part 12]
[Senate]
[Pages 15942-15943]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   SUPREME COURT DECISION IN MICHIGAN

  Mr. DURBIN. Mr. President, I rise in praise of yesterday's Supreme 
Court decision in the Michigan case--the most important affirmative 
action case in a generation. I along with 11 of my colleagues--Senators 
Daschle, Kennedy, Clinton, Corzine, Edwards, Feingold, Kerry, Landrieu, 
Lautenberg, Schumer, and Stabenow--filed an amicus brief in support of 
the university's affirmative action programs.
  I am disappointed that the Court struck down the undergraduate 
admissions program, but I believe that the opinion upholding the law 
school program represents a significant victory for affirmative action 
and for America.
  The Court's decision reaffirms the compelling interest in racial and 
ethnic diversity--universities may continue to include race as one 
factor among many when selecting its students. Diversity programs 
promote the integration and full participation of all groups in our 
society. The core holding of Grutter v. Bollinger, the law school case, 
and Gratz v. Bollinger, the undergraduate case, boils down to this: 
universities must look at each applicant individually.
  Michigan Law School's program was upheld because the law school 
performs an individualized consideration of every applicant. Race is 
considered, but not in a mechanical manner. The University of 
Michigan's undergraduate program was struck down because the Court said 
its point system was too rigid and too mechanical. The bottom line is 
that university affirmative action--when done right--is alive and well 
in America. Not surprisingly, the law school opinion was 5-4 and, not 
surprisingly, Justice O'Connor was the swing vote. She has been the 
crucial swing vote in so many important Supreme Court cases over the 
past 20 years that she is now routinely referred to as ``the most 
powerful jurist in America,'' and indeed, as ``the most powerful woman 
in America.'' Both descriptions may well be true.
  I would like to briefly discuss what I think are the three most 
important aspects of yesterday's decision.
  First, the Court set out a clear roadmap for affirmative action. The 
question is no longer whether race can be used to further diversity, 
but how it can be used. The majority of universities are already 
practicing affirmative action the right way. As discussed in today's 
Washington Post, most universities currently have admissions programs 
that are similar to Michigan Law School's. And for those that don't, a 
quick fix would be to go out and hire more admissions officers. Many 
universities have large endowments, so I am confident they have the 
ability to hire a few more staff. As a result, they will be able to 
conduct the flexible, individualized analysis that the Court now 
demands.
  I personally agree with Justice Souter's dissent in the undergraduate 
case--their point system is a far cry from the quota system that was 
struck down in Bakke. Underrepresented minorities automatically get 20 
points out of a possible 150, but so do athletes, low-income 
applicants, and those who attended disadvantaged high schools. To me, 
this type of point system does not seem unconstitutional.
  But in any event, universities now have clear guidance. I think 
Justice Scalia will be proven wrong in his dire prediction that the 
Michigan decisions will lead to an avalanche of new affirmative action 
litigation.
  Another important aspect of yesterday's decision is that it 
recognizes the value of diversity not only on campus, but for other 
critical areas of our society as well. Eliminating affirmative action 
in universities would have harmful ripple effects for the nation.
  For universities, the Court noted that ``classroom discussion is 
livelier, more spirited, and simply more enlightening and interesting'' 
when the students have ``the greatest possible variety of 
backgrounds.''
  For society at large, diversity has even more tangible benefits. 
Citing to an amicus brief filed by a large number of Fortune 500 
companies, Justice O'Connor wrote that ``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.''
  Referencing an amicus brief filed by dozens of retired U.S. military 
leaders--including Generals Norman Schwarzkopf, John Shalikashvili, 
Hugh Shelton, Anthony Zinni, and Wesley Clark--the Court wrote that 
``high-ranking retired officers and civilian leaders of the United 
States military assert that, `based on their decades of experience,' a 
`highly qualified, racially diverse officer corps . . . is essential to 
the military's ability to fulfill its principal mission to provide 
national security'''.
  In addition, the Court brought the issue of diversity close to home. 
Noting that law schools represent ``the training ground or a large 
number of our Nation's leaders,'' the Court observed that individuals 
with law degrees occupy more than half the seats in the United States 
Senate (59), a third of the seats in the House of Representatives 
(161), and roughly half the state governorships.
  A third important aspect of yesterday's decision is the rejection of 
the Bush Administration's position that both Michigan programs were 
unconstitutional and should be struck down. It gives you an idea of how 
conservative the Bush Administration is. Even this Supreme Court--in 
which 7 of 9 members were appointed by Republican Presidents--rejected 
its arguments.
  Contrary to the misleading assertions of President Bush and other 
opponents of affirmative action, the Court held that Michigan Law 
School's policy of seeking a ``critical mass'' of minority students did 
not as a de facto quota.
  Between 1993 and 2000, the number of African Americans, Native 
Americans, and Latinos in each class varied from 13% to 20%. As the 
Court noted, diminishing stereotypes about ``minority viewpoints'' is 
``a crucial part of the Law School's mission, and one that it cannot 
accomplish with only token numbers of minority students.''
  The Court also rejected the Bush Administration's position that you 
could attain diversity through race-neutral means, such as the 
``percentage plans'' in Texas, Florida, and California, which guarantee 
admission to all students above a certain class-rank threshold in every 
high school in the state.
  The Court rejected this argument for two main reasons: 1, percentage 
plans don't work for graduate and professional schools, and 2, they 
are, ironically, even more mechanical and inflexible than the Michigan 
undergraduate program.
  The Court shot down another central argument of the Bush 
Administration--that affirmative action programs were invalid unless 
they had a definitive end date. As Justice O'Connor observed: ``It has 
been 25 years since Justice Powell first approved the use of race to 
further an interest in student body diversity in the context of public 
higher education. Since that time, the number of minority applicants 
with high grades and test scores has indeed increased. We expect that 
25 years from now, the use of racial preferences will no longer be 
necessary to further the interest approved today.''
  I hope that Justice O'Connor is right.
  The Michigan case is yet another reminder of the fragile balance on 
the Supreme Court, and how high the stakes will be if a Justice 
retires.
  If there were a switch of a single Justice in yesterday's case, 
things would be dramatically different today. If there had been a fifth 
vote to end race-conscious affirmative action in America's 
universities, we would face a sudden reduction in minority students on 
our Nation's college campuses, especially at the elite ones.
  The dean of Georgetown Law School--my alma mater--speculated 
yesterday that if the decision had gone the other way, Georgetown's 
minority enrollment would have been cut in half.
  America cannot afford to turn back the clock on opportunity for all 
of our

[[Page 15943]]

citzens and--by a 5-4 margin--the Supreme Court agrees.

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