Affirmative Action at the Court: Just the Facts

With varying degrees of success, each generation of Americans has struggled to understand the meaning of race and seek solutions to the problems brought on by our differences. The latest legal chapter in that struggle is arguably the story of the 2003 Supreme Court decision in the companion cases Grutter v. Bollinger and Gratz v. Bollinger. In A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge, Greg Stohr, traces the history of this latest chapter.

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A BLACK AND WHITE CASE By Greg Stohr Bloomberg Press ($26.95) With varying degrees of success, each generation of Americans has struggled to understand the meaning of race in a multicultural nation and to seek solutions to the problems brought on by our differences. The latest legal chapter in that struggle is arguably the story of the 2003 Supreme Court decision in the companion cases Grutter v. Bollinger and Gratz v. Bollinger, which dealt with the question of the constitutionality of affirmative action in higher education. In A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge, Greg Stohr, a legal reporter for Bloomberg News, traces that tale from the moment the outgoing and confident Jennifer Gratz received her rejection letter from the University of Michigan in 1993 to the day, a decade later, when champagne flowed in former Michigan President Lee Bollinger’s office after the Court’s rulings in Grutter and Gratz. The challenges in both cases were brought by the conservative Washington public interest firm the Center for Individual Rights, which sought plaintiffs willing to sue the University of Michigan on the grounds that the affirmative action policies the public university used in admitting students to the college and law school violated equal protection. The CIR had already won a similar case against the University of Texas School of Law; it hoped to replicate the success in another part of the country and thus force the Supreme Court to consider the issue. Of course, as students of equal protection law know, the Court had already addressed this issue once before, in 1977′s Regents of the University of California v. Bakke. The problem was that because of the fractured nature of the opinion in Bakke, no one was sure precisely what the state of the law was regarding affirmative action in college admissions — especially in light of subsequent cases prohibiting affirmative action programs in many other contexts. A frequent conclusion, and the University of Michigan’s defense, centered on Justice Lewis Powell’s Bakke opinion, which upheld the contribution a diverse student body made to the educational experience. But whether Powell’s rationale had truly endured a decade and a half of significant ideological shift on the Supreme Court bench was anyone’s guess. A DETAIL-LADEN TALE A Black and White Case focuses on precisely what its subtitle, How Affirmative Action Survived Its Greatest Legal Challenge, promises: how affirmative action survived — not why it survived or whether it should have survived. Stohr’s tale is short on analysis, long on narrative. His background as a Harvard Law School graduate and a judicial clerk notwithstanding, this book is clearly written for a general audience, and it doesn’t throw legal jargon at its reader. Indeed, Stohr takes nothing for granted, not even basic knowledge of American history; at times, he takes painful detours into set-piece descriptions of race relations over time. In his effort to convey the prejudice in the segregated South of the 1950s, for instance, Stohr resorts to prose ripped from a high-school textbook: “Restaurants that served blacks did so in separate sections. Buses had whites-only seats in the front; ‘Negroes’ and ‘colored’ had to sit in back. Theaters relegated blacks to the balconies.” By contrast, Stohr’s writing becomes dynamic when portraying the personalities involved in the litigation. His reporting skills are excellent, and he is clearly fascinated by the people and politicking at the heart of a large, significant court case. He draws vivid pen-portraits of lawyers, judges, students, administrators, professors, and affirmative action advocates and opponents. The intriguing figures I met on the pages of A Black and White Case were enough to keep me moving through the book. Take Jennifer Gratz, the name plaintiff in the case against Michigan’s undergraduate faculty. (Barbara Grutter sued the law school.) Gratz appears on the first pages of the book, tearing open that rejection letter, and we hear about her in finely rendered detail over the course of several pages. A hardworking, intelligent cheerleader, Gratz had spent two months “work[ing] on her application. She had brought it with her to school basketball games, poring over the materials in the stands until it was time to start leading cheers.” These small details give us a sense of Gratz’s dedication — the kind of dedication necessary to agree to be part of a test case against one of the most firmly entrenched facets of the college application process at the time. These sorts of anecdotes will interest almost anyone in Washington’s legal community, since Stohr includes similar details about the city’s top practitioners, firms, politicians, and jurists. OVERLY DETACHED? On the other hand, Stohr’s attempt at journalistic neutrality is, in my view, a limitation. Stohr seems to have conceived of A Black and White Case as simply a book-length article, full of facts and description, devoid of the author’s personality or opinions. A reluctance to disclose one’s own view is appropriate for a reporter in most instances, but affirmative action is one of the most emotionally charged constitutional issues of our day, and Stohr writes at times as though the principles involved in these cases were tiny, technical points from one of the more abstract areas of the law — trusts, perhaps, or admiralty. Yet when the stakes are this high, for the country’s promise of racial equality and for our understanding of the meaning of rights in the 21st century, it seems fair to expect more from an author than a duck behind a veil of purported neutrality. I wanted to know what Stohr himself thought about affirmative action, having presumably spent years discussing, researching, and dissecting the topic — even if his view was only expressed briefly, in a preface. Instead, I spent the book frustratedly attempting to guess his viewpoint. Even in his epilogue, Stohr refuses to tip his hand, writing coyly that, “[h]ad CIR achieved its goal of color-blind admissions, the social and political consequences might have been enormous. . . . For good or bad, virtually every student who attended a top American university would have felt the impact of a fundamentally different admissions system.” Stohr ends his book the way he began it, describing the fate of his principal characters, a topic that clearly drives him as a writer more than the question of the “good or bad” of affirmative action itself. On the whole, A Black and White Case documents a crucial moment of American history. Though the Court rejected the university’s undergraduate affirmative action program as too rigid, it upheld the law school program. What is more important is that it resoundingly endorsed the goal of diversity in higher education and strengthened the legal grounding for such a goal. Stohr’s account of how the opinion came to be should find an eager readership among litigators (and future litigators), Washington insiders, and those who concern themselves with the history of race in America. Grutter v. Bollinger may well be the case that helps define much of the relationship between the races for the next generation of American leaders. Beth Johnston is a lawyer and writer in Cambridge, Mass. This article was originally published in Legal Times , a Recorder affiliate based in Washington, D.C.

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