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Managing Editor Scott Harris sharris@aamc.org Staff Writer Elissa Fuchs efuchs@aamc.org

Supreme Court Hears Arguments In Michigan Diversity Case

The parties in Grutter v. Bollinger, one of two lawsuits challenging the University of Michigan's use of race as a factor in admissions policies, presented oral arguments before the U.S. Supreme Court April 1.

Michigan's law school attorney, Maureen Mahoney, told the court that racial diversity in higher education is a "compelling state interest" that passes the "strict scrutiny" test with respect to the Constitution's equal protection guarantee.

"There is a compelling interest in having an institution that is both academically excellent and racially diverse," she said. "Our leaders need to be trained in institutions that are…superior academically [and] also need to be trained with exposure to the viewpoints, to the perspectives, to the experiences of individuals from diverse backgrounds."

The court's precedent - the landmark 1978 Board of the University of California v. Bakke case - makes the implementation of racial quotas in higher education illegal. The court ruled in that case that universities could, however, use race as a "plus factor" when looking at applications from minorities.

Scalia: 'Quota land'

Although the majority of the high court's justices expressed support for diversity in higher education, some of them questioned whether Michigan's policies aimed at admitting a yearly "critical mass" of minority students were the equivalent of disguised quotas.

Justice Antonin Scalia pressed Mahoney for the specific "critical mass" number that the school uses in determining whether enough minorities are admitted each year. "You have to pick some number, don't you?" he asked. Justice Scalia indicated that despite the fact that Michigan does not have a minimum percentage requirement as part of its minority admissions policy, the school still is relying on quotas in its quest for a more diverse student body.

"Does it stop being a quota because it's somewhere between eight and 12, but it's a quota if it's 10?" he asked. "I don't understand that reasoning. Once you use the term 'critical mass' - and you are - you are into 'quota land.'"

Mahoney replied that according to the court's precedent, a quota is "a fixed number… [but] there's no fixed number here."

Justice Sandra Day O'Connor - viewed by many legal experts to be the pivotal vote in the case - expressed some skepticism toward affirmative action plans that lack a time limit, noting that in previous cases the Supreme Court upheld programs that had a "fixed time period." She said that Michigan's program appeared to be open-ended; Mahoney responded that the court should not conclude that Michigan's affirmative action policy is permanent.

"There are two things that can happen that will make this [policy] come to an end," Mahoney said. "The first is that the number of high-achieving minorities will continue to grow and that law schools will be able to enroll a sufficient number [of minorities] to have a critical mass or meaningful numbers…without having to take race into account.

"The second," she continued, "is that we could reach a point in our society where the experience of being a minority [does] not make such a fundamental difference in their lives, where race [does not] matter so much that it's truly salient to the law school's educational mission. While I can't say when that will happen, we certainly know that, as a nation, we have made tremendous progress in overcoming intolerance. And we certainly should expect that that will occur with respect to minorities."

Relevance for medicine

Although the two Michigan cases pertain specifically to affirmative action in undergraduate and law school admissions, the court's ruling will affect the admissions policies of all institutions of higher education, including medical schools.

"We are all eager to see the day when race ceases to be a relevant factor in this country, and when access to health care surpasses ethnic and economic boundaries," said Jordan J. Cohen, M.D., president of the AAMC. "But since that day clearly has not arrived, the use of race-conscious decision making in medical school admissions is the only way that medicine can effectively meet its obligation to serve our entire society."

University of North Carolina Chancellor Emeritus Christopher Fordham, MD, voiced similar sentiments in an interview. "It is my conviction that these issues are even more important in medicine," said Dr. Fordham, a former dean of UNC's School of Medicine. When discussing affirmative action in an academic medicine context, "we're not just talking about educational opportunity, we're talking about providing proper service to a population," he said.

Since he began teaching medicine at UNC in 1958, Dr. Fordham has seen positive changes in the academic medicine environment, including an increase in the number of minority students, faculty, and housestaff. "Things have changed significantly, but ... we're still not adequately serving the whole population," he said.

Dr. Fordham cited an Institute of Medicine (IOM) finding to make his point. "A recent IOM study showed that ethnic health disparities are not attributable to differences in education and economic levels," he said. "This is a serious problem for the profession; it means we have got to do a better job."

Having more minority doctors is one way to address current ethnic health disparities, Dr. Fordham said, adding that since studies have indicated that minorities are more likely to work in underserved areas and with members of minority groups, it is important to keep their presence in medicine strong.

"When I was in medical school in the 1940s, there were just a few women in my class," Dr. Fordham recalled. "The changes that have taken place since then, leading to the inclusion of women in a full way, have been profound and really invigorating to medicine and society. The same will be true in the case of minorities."

A companion case - Gratz v. Bollinger - is challenging Michigan's undergraduate admissions policy. Lee C. Bollinger, now president of Columbia University, was Michigan's president until the end of 2001. The university's new president, Mary Sue Coleman, took her post in late March, pledging the school would remain committed to the ideal of diversity.

- Suria Santana

Editor's note: For more information, visit www.aamc.org/diversity

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