High Court Poised to Hear 2 Equal Protection Cases

The Supreme Court is poised to take up major cases on college affirmative action and gay rights, possibly as early as Monday, that seek to overturn much-disputed precedents, one the bane of conservatives and the other a thorn for liberals.

Both cases test the meaning of the Constitution’s guarantee of the “equal protection of the laws.”

The first challenges the Bakke decision of 1978, in which the high court narrowly upheld affirmative action as a way to preserve racial diversity in higher education.

The Center for Individual Rights, a conservative legal group in Washington, says “race-based preferences” in college admissions violate the equal-treatment standard and should be struck down.

The second tests whether gays can be prosecuted for having sex at home.

In 1986, the court in a 5-4 vote upheld the prosecution of two gay men under a Georgia anti-sodomy law in the case of Bowers vs. Hardwick.

That case focused on the right to privacy. The Lambda Legal Defense Fund in New York, a gay rights group, is urging the court to revisit the Bowers decision and to rule that prosecuting same-sex couples, but not heterosexuals, for sodomy violates the equal-treatment standard.

The latest case, Lawrence vs. Texas, arose when two men, John Lawrence and Tyron Garner, were arrested in a Houston-area apartment by officers who were responding to a false report of an armed intruder. Instead, the police arrested the men, and they were fined $200 for having sex.

“The state should not have that power, and we are asking the Supreme Court ... to strike down this discriminatory law once and for all,” says Ruth Harlow, Lambda’s legal director.

The Texas law criminalizes “deviate sexual intercourse with another individual of the same sex.” Besides Texas, only three other states -- Kansas, Oklahoma and Missouri -- still enforce anti-sodomy laws that target gays and lesbians.

The gay rights lawyers hope the court’s liberal justices will vote to revisit the issue. Their appeal went before the high court this week.

Meanwhile, the lawyers challenging affirmative action are even more confident the court’s conservative justices are ready to reconsider the Bakke ruling, a split decision they say has left the law unclear ever since.

Allan Bakke, a well-qualified white applicant to the UC Davis medical school, contended in a lawsuit that he was rejected because a preference was given to black and Latino applicants.

Bakke won in 5-4 decision that said the medical school had maintained an illegal quota by reserving 16 of its 100 slots for minority students.

However, Justice Lewis F. Powell Jr. joined his four more liberal colleagues to say colleges can consider a student’s race as a “plus” factor so as to bring about diversity in its entering class.

Over the last decade, lawyers for the Center for Individual Rights have won rulings striking down affirmative action at the University of Texas law school and at the University of Georgia. The Supreme Court refused to hear appeals in those cases because school officials refused to defend their contested admission policies.

Now, the justices have before them a University of Michigan case that clearly tests whether officials may give an edge to minority applicants.

Both the law school and the undergraduate campus in Ann Arbor seek a “critical mass” of black and Latino students. In recent years, from 11% to 17% of the entering law students were black or Latino, a judge found. While all the applicants who won admission had good records, it was much harder for white students to gain admission, the judge said.

This ruling came in a lawsuit filed by the Center of Individual Rights on behalf of Barbara Grutter, a 43-year-old white applicant to the law school who was rejected despite a 3.8 grade-point average and 86th percentile ranking on the Law School Admissions Test.

“The practical effect of the law school’s policy is indistinguishable from a straight quota system,” said U.S. District Judge Bernard Friedman in striking down the policy. He also said the Bakke decision has been overtaken by more recent Supreme Court rulings knocking down affirmative action in public contracts.

But University of Michigan officials appealed and made clear they will vigorously defend the policy.

“We’re urging the court not to turn the clock back on our ability to assemble a diverse student body,” President Mary Sue Coleman said. She and other officials said racial diversity makes for better education and helps foster future leaders for the state.

In May, the U.S. appeals court in Cincinnati sided with the Michigan law school on a 5-4 vote and overturned Friedman’s ruling. To the surprise of many, the appeals court has yet to rule on a similar challenge to the undergraduate admissions program.

Lawyers for the Center for Individual Rights urged the high court to take up the case of Grutter vs. Bollinger and to throw out the Bakke decision. They described the Michigan admissions policy as “a straightforward instance of racial discrimination by a state institution.”

The appeal came before the justices last week, and a veteran civil rights lawyer who worked on the case said he expects the justices to take up the challenge.

“I’d be surprised if they don’t take it,” says Theodore M. Shaw, counsel for NAACP Legal Defense Fund in New York. “This is the best case with the best record.”