Walter Dellinger and Dahlia Lithwick

O'Connor: The Court's Hero
An email conversation about the news of the day.
June 23 2003 12:39 PM

Walter Dellinger and Dahlia Lithwick

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Dear Dahlia,

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When I was a young professor, I delighted in demonstrating to my students the logical flaws in Justice Powell's controlling opinion in Bakke. A quarter of a century later, I have the maturity to realize how profoundly wise that opinion was.

Now comes Sandra O'Connor. My God, what a hero. She has it exactly right. She doesn't simply continue the Powell tradition. She builds upon it and writes as persuasive an argument for racial diversity and for the legitimacy of allowing consideration of race to play a role in admissions as the United States Reports have ever seen.

She keenly understands the adverse consequences of singling out race—of singling out any fact about an individual—and ruling it off limits, regardless of the consequences. She nods to the powerful amicus brief by military officers that demonstrates how important it is for us now to consider race if we are to have an effective officer corps.

Most impressive is her rejection of the position urged by the solicitor general and the District Court—that the law-school plan is flawed because non-racial methods could have achieved racial diversity. She emphatically rejects the suggestion by the District Court that diversity should have been achieved by means such as "using a lottery system" or "decreasing the emphasis for all applicants on undergraduate GPA or LSAT scores." "These alternatives," O'Connor writes, "would require a dramatic sacrifice of diversity, the academic quality of all admitted students, or both." Regarding the SG's suggestion that diversity could be achieved by a program like some states have, of admitting all students to college who have a certain high-school GPA, she simply notes, "The United States does not, however, explain how such plans could work for graduate and professional schools."

Importantly, she says, "narrow tailoring" does not "require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups." (I should note that I filed an amicus brief in the law-school case on behalf of the Law School Admissions Council, so this point is of particular note for them. And, as a faculty member, I also believe in the importance of both excellence and diversity.) She also recognizes, as did Justice Powell, that the First Amendment is implicated in how universities select their classes. Admissions are the first step in the process of education.

There are limits on affirmative action, and they are set out by her concurring opinion in the decision that strikes down the undergraduate school's admissions program. This is not confusing, illogical, or fine-line drawing. It's basic good sense. Unlike the law-school program, which has professionals or faculty members evaluate the entire file, the undergraduate school has lower level clerks apply a point system in which 20 points are given for race. Just as race was an eligibility requirement for the places that were set aside in the Bakke program, race is an eligibility requirement for the 20 points.

Imagine mixed-race applicants to the law school and the undergraduate school. In the law school, no one has to decide exactly what race a person is. They just look at the whole person. In the undergraduate process, if the issue is raised, someone has to make an essentialist determination of race. As I said, that's not good, and it's not necessary.

As a practical matter, the bottom line is that some schools are going to have to spend more money on admissions. Instead of giving points for race, or making race an eligibility requirement for programs or points, they have to evaluate everything relevant about a person. And for a good while to come, race will be relevant.

Some are saying Justice O'Connor put a 25-year time limit on affirmative action. That's not quite right. What she said was: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Like a good teacher, she doesn't so much lay down a rule as provide thoughtful guidance. And her guidance should tell us that we have work to do in our educational system from Head Start on, starting now.

I just wish that about seven other justices had joined O'Connor's opinions.

There is more to be said, but I'll save it for tomorrow.

Walter

Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.