“In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity,” she wrote.

O’Connor rejected the reasoning of critics of affirmative action policies who said schools must try every race-neutral formula to achieve diversity first.

“Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” she wrote. “Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all groups.”

In Gratz, though, the Court held that Michigan’s undergraduate point-based policy rewarded race to the exclusion of any nuanced consideration. “Clearly, [the undergraduate] system does not offer applicants the individualized selection process described in Harvard’s example,” wrote Chief Justice William H. Rehnquist for the majority.

Reactions on the Ground

Though they hailed the day as an overall success, some professors and officials at Harvard said the Gratz ruling placed unnecessary restrictions on affirmative action programs—though Summers said it would have no effect on Harvard’s non-point-based system.

“The point system was a reasonable application of Bakke,” Orfield said.

Though Tribe said he thought the point system could have been upheld, such a ruling “was an almost inconceivable outcome given the current composition of the Court.”

Tribe and Orfield said that that composition should not be taken for granted by supporters of affirmative action.

“This emphasizes the importance of Supreme Court appointments,” Orfield said. “People who think that who goes on that court doesn’t matter in terms of what our rights are have to look at this decision.”

But the Court’s ruling against Michigan’s undergraduate policy should not be a major cause for concern, Tribe and Orfield said.

The result of the undergraduate ruling was “a relatively minor loss which in the end may make the court’s compromise more broadly acceptable throughout society,” said Tribe.

“I really don’t feel a lot of regret about the point system going,” Orfield said, adding that individualized race-conscious policies are “the fairest system.”

Summers said that Harvard’s interest in the case had not centered on defending such a point-based system.

“It’s probably the case that the appropriate weight to give to race will vary from situation to situation,” he said. “The important thing is the principle and that’s what we focused our brief on.”