Law Professor Says Michigan Case Will Produce Scrutiny of University Affirmative-Action Admissions Programs

BUFFALO, N.Y. -- The U.S. Supreme Court's consideration of two affirmative-action cases involving admissions policies at the University of Michigan will result in a strict scrutiny to identify which university affirmative-action programs actually serve diversity, says Lee A. Albert, professor in the University at Buffalo Law School.

"The Supreme Court's skepticism will entail a demanding look at the manner in which admission programs are structured and how they operate. Universities likely will not get any benefit of doubt on these issues," says Albert, a former Supreme Court clerk.

"The court will seek to separate those that genuinely pursue diversity from those that seek adequate racial representation."

Albert expects the Supreme Court likely will rule there is compelling interest for upholding standards of diversity at universities. "Overruling educators on this score would not be easy, despite the lack of precision in the idea of diversity," Albert says. "Diversity is an authentic and important interest in universities, even though it does not have history of tradition behind it."

According to Albert, diversity was not the original justification for race-based programs, nor was it the motivation for the Supreme Court's 1978 landmark decision in the case of Regents of the University of California v. Bakke, which colleges and universities have relied upon to justify their affirmative-action policies for admissions.

"In the midst of creating and defending affirmative-action programs, American universities may have stumbled onto the value of diversity in education," he adds. "But experience with pluralism in the classroom revealed that the idea of diversity really had substance and value, which accounts for the staying power of affirmative action during the political storms of the past two decades."

Albert predicts the court will not close the door on affirmative action in admissions, nor will "American universities return to the homogeneous classroom of mainly white males," he says.