Court cites landmark US case to make the point: Govt should look beyond quota

Here, Justice Dr Arijit Pasayat urges a serious look at how other diverse constitutional democracies like the United States and South Africa, in which certain groups were subjected to discrimination in the past, have addressed the fundamental challenge of equality.

The court singled out the Grutter v. Bollinger case in 2003 — the first ruling in 25 years by the US Supreme Court on affirmative action in higher education admissions.

The US court ruled that race can be used in university admission decisions, but the narrowly divided court also seemed to put limits on how much of a factor race can play in giving minority students an advantage in the admissions process.

On June 23, 2003, the US Supreme Court justices decided on two separate but parallel cases. In the pivotal case, Grutter v Bollinger, Barbara Grutter, a white student applied for admission to the University of Michigan Law School, one of the nation’s top law schools.

Denied admission, and finding that African Americans and ethnic minorities who had lower overall admissions scores were admitted, she filed a suit alleging discrimination against her on the basis of race in violation of the the 14th amendment.

The district court found the law school’s use of race as a factor unlawful. But the Sixth Circuit Court of Appeals sided with the university view that a diverse student body has benefits and that a system of admission that takes the race of the applicant into account in an overall score wasn’t a quota.

(In a 1978 case, Regents of the University of California v Bakke, a case which Justice Pasayat also refers to, the court ruled that a school could take race and ethnicity into account but couldn’t use quotas and admissions programmes must be “narrowly tailored” to harm as few people as possible).

The US Supreme Court held that the law school’s use of race was “narrowly tailored” because race was merely a “potential ‘plus’ factor”. The Supreme Court justices voted 5-4 to uphold the University of Michigan’s law school affirmative action policy.

This decision hinged on two crucial questions: How closely did the law school’s use of race cleave to the compelling state interest of “diversity” as defined in the Bakke case — considered to be a binding precedent. And, how “narrowly tailored” was the policy?

To be narrowly tailored, the court held, a race conscious admissions programme cannot “insulate each category of applicants with certain desired qualifications from competition with all other applicants”. Instead, it may consider race or ethnicity only as a “‘plus’ in a particular applicant’s file”.

In other words, each applicant should be evaluated as an individual and not in a way that makes “race or ethnicity the defining feature of the application”.

Illustrating how delicately such lines are to be drawn, on that same day in June 2003, the US Supreme Court did not judge another race conscious admissions programme to pass its stringent test.

This was in the Gratz v. Bollinger case. In this case, the justices struck down the affirmative action policy in the same university for undergraduate admissions, which awarded 20 points for Blacks, Hispanics and Native Americans on an admissions rating scale.

In this case, in a 6-3 majority, the court ruled that the points system violated equal protection provisions of the Constitution. Chief Justice William Rehnquist observed that the use of race was not “narrowly tailored” to achieve the university’s diversity goals.

At the heart of those two cases in 2003 was a question: Why must a university be allowed to discriminate — because it values diversity in its student body or because discrimination is primarily justified for reversing past injustice?

In India, conceptual distinctions in the definitions and justifications of affirmative action which can in turn nuance the design of an effective policy intervention are yet to be clearly made. What is heard is shouting match that unproblematically equates the pro-social justice position with the pro-reservation one, and similarly considers those who are anti-reservation to be also anti-social justice.