Expert: Michael Troy - 8/5/2004

Question
Do you think that due to Michigan cases (Gratz and Grutter), in the near future, the attitude to the affirmative will change? and even will cancel?  

Answer
Hi there,

The Gratz and Grutter decisions ended up being a fairly muddled outcome that didn't really please anyone.  The decision did give hope to supporters of affirmative action since it was the first Supreme Court decision to say by a clear majority that racial preferences are permissible for a purpose other than remedying past discrimination.  

On the other hand, the Court did not really make clear exactly how race could be considered.  It struck down the point preferences in the undergrad but found the unstructured preference for the law school to be acceptable.  The Court seemed to be saying schools could consider race, but shouldn't leave any paper trail as to how much emphasis was really given to race.

Justice O'connor's comment that racial preference would be considered Constitutional for the next 25 years or so but then would become unconstitutional left many people scratching their heads.  It really makes no sense from a legal standpoint.  However, it does make clear that the Court does expact racial preferences to end at some point in the next few decades.

Some schools that were in jurisdictions where affirmative action had been held unconstitutional are alreay bringing back racial preferences in their admission plans.  In other places such as California, State laws no ban such preferences and are moving in the other direction.

I think affirmative action will continue to be a contentious issue.  There are people with strong feelings on both sides of the issue.  I think it will continue to be a fight for some time to come.

- Mike