The naming of White House counsel Harriet Miers to replace retiring Supreme Court Justice Sandra Day O'Connor has provoked serious concern among some conservatives. They worry that Miers may take positions all too similar to O'Connor's on issues like affirmative action. O'Connor was often the swing vote on controversial social issues from abortion to school prayer, and she actually wrote the majority opinion in one of the most important decisions on affirmative action in the last two decades. Writing for a 5-4 majority in a University of Michigan law school case, Grutter v. Bollinger, O'Connor upheld the use of race to achieve diversity, but she then joined the late Chief Justice William Rehnquist and Justices Scalia, Thomas, Kennedy and Breyer to reject the university's affirmative action program for undergraduates in Gratz v. Bollinger. Most conservatives hoped that with O'Connor gone, the Supreme Court might revisit affirmative action with a decision that once and for all rejects racial preferences as permissible public policy. But it may be that even without further action by the court, the practice of granting preference to minority students is beginning to lose favor on college campuses.
A recent study by two sociologists at the University of California at Davis, which looked at public and private undergraduate admissions at some 1,300 institutions from 1986-2003, concluded that the number of schools that considered race as a factor in admission declined sharply after 1995. After holding steady for nearly a decade, the proportion of public four-year institutions that acknowledged using race as a plus-factor in admission declined from 60 percent to 35 percent, while the percentage of private schools using preferences fell from 57 to 45. The study's authors conclude that litigation and the threat of litigation were factors in discouraging schools from taking race into account in admitting students. Many conservatives worried after the University of Michigan decisions that schools would feel justified in continuing to use racial preferences, but the opposite may be happening.