Justices Hear Affirmative Action Cases

The Supreme Court heard a forceful challenge to affirmative action in colleges and universities Tuesday, but most of the justices signaled that they were not ready to outlaw all use of a minority student’s race as a plus factor when students are considered for admission.

In two cases heard Tuesday, lawyers for rejected white applicants to the University of Michigan and its law school urged the court to adopt a strict rule of racial neutrality.

The Constitution’s “promise of equality” means that all people are entitled to be judged equally and without regard to race, said Kirk Kolbo, a Minneapolis lawyer for the plaintiffs.

Speaking for the Bush administration, Solicitor General Theodore B. Olson agreed, saying the Michigan schools used a “thinly disguised quota” that gives preference to minority students and penalizes whites.

It was the first time in 25 years that the Supreme Court has dealt directly with affirmative action in higher education. And the justices were well aware that the decisions in the Michigan cases could shape admission policies for another generation. If the high court were to rule that it is flatly illegal to weigh an applicant’s race or ethnic heritage, it would force most of the nation’s elite colleges and universities to change their policies.

It also would close the doors of those schools to most minority students, the court was told.

That prospect drew a huge crowd of demonstrators to the court’s marble steps. More than 5,000 people, many of them African American students, carried signs proclaiming their support for affirmative action as the key to equality. Without it, they said, the nation’s best colleges could again become segregated.

But by the arguments’ end before the court, the prospects for a clear-cut rejection of affirmative action had faded. Olson and Kolbo ran into surprisingly skeptical questions, not just from the court’s four liberal justices, but also from Justices Sandra Day O’Connor and Anthony M. Kennedy, the moderate conservatives who likely will cast the deciding votes.

O’Connor, who is not fond of setting strict legal rules, told Kolbo that she did not see a need for such a rule in this area. “A university or a law school is faced with a serious problem when it’s one that gets thousands of applications for just a few slots,” O’Connor said. “A lot of factors go into [deciding who gets in] .... But you’re speaking in absolutes .... I think we have given recognition to the use of race in a variety of settings.”

Kennedy said university presidents and law school deans are worried if only 2% or 3% of the students are black or Latino.

“Is that a legitimate concern for the university officials?” he asked.

“We believe not, your honor,” Kolbo replied. And it would certainly not “justify racial preferences” in admissions, he added.

Unswayed, Kennedy answered his own question.

“It’s a broad social and political concern” if there are few minority graduates from a state’s top universities and law schools. “I should think that it is a very legitimate concern on the part of the state,” Kennedy said.

In the past, Kennedy and O’Connor have helped form a five-member conservative majority to strike down city and state programs that gave preferences to minority contractors, set aside minority scholarships or created black-majority congressional districts.

Both have said they were opposed to the blatant use of race by public officials, even for laudable purposes.

They may well join a ruling that strikes down the undergraduate admission policy at the University of Michigan because it assigns points to students based on their race.

Applicants who are black or Latino are given an automatic 20 extra points. A perfect SAT score, by comparison, is worth 12 points on Michigan’s scale.

At one point, Kennedy commented that the admission policy appeared to be “just a disguised quota.”

The law school, by contrast, avoids a rigid point system and seeks to evaluate each applicant individually.

O’Connor, like Justice Lewis F. Powell Jr. in the Bakke decision of 1978, is more likely to support an admission policy that weighs many factors and evaluates students as individuals.

Another possibility would be a ruling that strikes down both admission policies because they give too much weight to race, accompanied by an opinion that says again that universities can consider an applicant’s race as one plus factor.

Such a ruling would force many universities to revise their policies, but it would not abolish the use of affirmative action.

Either way, the outcome should not affect California public universities. Since voters passed Proposition 209, the state schools have been forbidden from giving “preferential treatment” to anyone based on race or ethnicity.

A similar voter initiative governs the University of Washington in Seattle. In Texas, public universities have been barred by a court order from employing affirmative action.

Most other selective universities continue to use affirmative action -- including, notably, the U.S. military academies at West Post, N.Y.; Annapolis, Md.; and Colorado Springs, Colo.

Olson’s argument against race-based affirmative action was badly undercut when the liberal justices seized on the fact that these selective schools, operated by the United States, use affirmative action. In a friend-of-the-court brief, military leaders stressed the need to increase the number of blacks and Latinos in the officers’ corps.

Before Olson could finish his opening sentence, Justice John Paul Stevens asked him about affirmative action at the service academies -- and whether it is necessary and valuable.

“We don’t accept the position that black soldiers will only fight for black officers,” Olson replied. He added that the Bush administration has not taken a stand on the admission policies at the service academies.

“Is it illegal? Are they violating the Constitution?” Justice Ruth Bader Ginsburg pressed him.

Justices David H. Souter and Stephen G. Breyer joined in, arguing that if it is reasonable for the service academies to use affirmative action, why can’t state universities and law schools do the same?

Without it, “they say they will not obtain a substantial number of minorities,” Souter said.

When the topic is affirmative action, the court’s liberals and conservatives often seem to switch sides.

Usually, the conservatives argue for judicial restraint and deferring to the states. In this case, the conservative advocates said the court should intervene and strike down the state university policies.

Meanwhile, the liberals, who usually insist on strictly enforcing constitutional rights, argued in this case that the court should stand back and defer to the states, even if it results in racial bias against a white student.

Justice Antonin Scalia carried the argument for the conservatives.

The law school was represented by Washington attorney Maureen Mahoney, a former clerk to Chief Justice William H. Rehnquist and a deputy solicitor general during the first Bush administration.

Each year, Michigan’s law school receives more than 5,000 applications, but it admits only 1,000 students. Of those, 350 enroll as first-year law students.

The lead plaintiff, Barbara Grutter, was 43 when she applied. She had very good, but not superb credentials.

She was rejected, although her grades and test scores were better than most of the minority students who were accepted. She sued the university for racial discrimination.

At the trial, school officials said that 12% to 17% of a typical class is made up of black and Latino students.

When Mahoney on Tuesday defended the school’s desire for a “critical mass” of minority students, Scalia pounced.

“Is 2% a critical mass, Ms. Mahoney?” he asked.

I don’t think so, she replied.

Four percent? Scalia continued.

No, she said.

“You have to pick some number, don’t you? Does it stop being a quota because it’s somewhere between 8 and 12 [percent], but it is a quota if it’s 10. I don’t understand that reasoning. Once you use the term critical mass, you’re into quota land,” Scalia said.

John Payton, another lawyer for the university, stressed the benefits of affirmative action for all students, white and black. Michigan is a highly segregated state, he said. Black students are concentrated in Detroit, while the rest of the state is overwhelmingly white. When they come to the Ann Arbor campus, white and black students often mix for the first time.

However, when Mahoney argued that affirmative action is strongly supported by the students at Michigan and elsewhere, Scalia quickly objected.

“Sure, they’re in already,” he snapped. “If you think that [the affirmative action policy] is not creating resentment [among failed applicants], you are just wrong,” he said.

At one point, O’Connor asked about the effect of Proposition 209 at the University of California. Mahoney said the number of black students at Boalt Hall, the law school at Berkeley, and at UCLA dropped dramatically at first. However, the number of minority students has gone up somewhat in the last two years.

If the high court were to rule that race-based policies are illegal, private universities, such as USC and Stanford, would be affected, since they receive federal funds.

The court’s only major ruling on college affirmative action, the 1978 Bakke decision, struck down the use of quotas, but said colleges can consider a minority applicant’s race to create a diverse class of students.

Since then, the court has grown more conservative on matters of civil rights and race. But O’Connor, who was especially fond of Powell, asked several times about his opinion in the Bakke case. Her questions suggested that she saw no need to scrap Powell’s approach.

If Powell’s Bakke opinion survives, it would be a solid defeat for the conservative advocates who hoped the Rehnquist court would abolish race-based affirmative action.

Decisions in the cases, Grutter vs. Bollinger and Gratz vs. Bollinger, are expected by July.

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(BEGIN TEXT OF INFOBOX)

A challenge to admission policies

Excerpts from the Supreme Court arguments Tuesday in the affirmative action cases:

KIRK KOLBO, attorney for Barbara Grutter, a white University of Michigan law school applicant who sued for discrimination after being rejected: A constitutional promise of equality would not be necessary in a society composed of a single homogeneous mass. It is precisely because we are a nation teeming with different races and ethnicities, one that is increasingly interracial, multiracial, that it is so crucial for our government to honor its solemn obligation to treat all members of our society equally without preferring some individuals over others....

JUSTICE SANDRA DAY O’CONNOR: A university or a law school is faced with a serious problem when it’s one that gets thousands of applications for just a few slots, where it has to be selective. And inherent in that setting is making choices about what students to admit. So you have an element here that suggests there are many reasons why a particular student would be admitted or not. And a lot of factors go into it. So how do you single this out and how are we certain that there is an injury to your client that she wouldn’t have experienced for other reasons?

KOLBO: First of all, race is impermissible because of the constitutional command of equality. The university is certainly free to make many different kinds of choices in selecting students and to look for all kinds of different diversity -- experiential diversity, perspective diversity -- without regard to race. But race, Your Honor, because of the constitutional command of equality, must be beyond the bound for the university.

O’CONNOR: But you’re speaking in absolutes, and it isn’t quite that. I think we have given recognition to the use of race in a variety of settings.

KOLBO: And we absolutely agree, Justice O’Connor.

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JUSTICE JOHN PAUL STEVENS, addressing Maureen Mahoney, attorney for the University of Michigan: We’re all hoping someday race will be a totally irrelevant factor in all decisions. One of the arguments on the other side of your case, is these programs actually generate racial hostility, particularly on the part of the excluded members, and that in turn delays the ultimate day we are all hoping for. What is your comment about that?

MAHONEY: The record certainly does not support that inference under this program. ... There is overwhelming support by the students at Harvard and Michigan law schools for maintaining the diversity programs because they regard it as so positive.

JUSTICE ANTONIN SCALIA: Sure, they’re in already. The people you want to talk to are the high school seniors who have seen people visibly less qualified than they are get into prestigious institutions where they are rejected. If you think that is not creating resentment, you are just wrong.

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SCALIA: Is 2% [minority students] a critical mass, Ms. Mahoney?

MAHONEY: I don’t think so, Your Honor.

SCALIA: Four percent?

MAHONEY: No, Your Honor.

SCALIA: You have to pick some number, don’t you. Like eight. Is 8%?

MAHONEY: Your Honor.

SCALIA: Does it stop being a quota because it’s somewhere between 8 and 12 [percent], but it is a quota if it’s 10. I don’t understand that reasoning. Once you use the term critical mass, you’re into quota land.

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SOLICITOR GENERAL THEODORE B. OLSON, on the Michigan plan: First, it’s a thinly disguised quota which sets aside a significant portion of each year’s entering class for preferred ethnic groups. Secondly, it overtly employs stigmatizing and divisive racial stereotypes, what the law school calls “diversity-relevant characteristics.” It identifies persons by diversity-relevant characteristics.

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JOHN PAYTON, representing Michigan in the case concerning undergraduate admissions: If you have the meaningful numbers of minority students, what then happens is that students will see a range of ideas, a range of viewpoints from and among those students, and they will then see things that they may not have expected, similarities and differences. And those, in turn, will have the result of undermining stereotypes. And this happens for the minority student and the white student. This happens for all the students.

Source: Associated Press

Los Angeles Times