WASHINGTON, March 31 (UPI) -- Affirmative action supporters are promising thousands of demonstrators before the Supreme Court Tuesday.
The justices will hear argument on whether using a race as a factor in admissions at the University of Michigan violates the Constitution.
But any final decisions in the two cases -- one covering undergraduate admissions, the other Law School admissions -- may leave the country puzzled as to what the high court really meant.
The stakes in the case are unusually high.
The University of Michigan has told the Supreme Court that a ruling against its affirmative action programs would affect the entire county and "would produce the immediate re-segregation of many -- and perhaps most -- of this nation's finest and most selective institutions."
More than 100 friend-of-the-court briefs have been filed in the cases -- more than any other combined set of cases in recent Supreme Court history. Most of those amici briefs, about three-quarters, support the school's position.
In one of the two University of Michigan cases to reach the Supreme Court, a federal appeals court upheld the Law School's use of racial preferences in admissions policy to increase the number of minority students.
In the other, a federal judge upheld the use of racial preferences in the general admissions policy of the university as a whole. The challengers in the second case successfully asked the Supreme Court to review the dispute at once, despite the fact that an appeals court had not yet ruled on the matter.
The cases are being heard back to back in the Supreme Court Tuesday.
The challengers in both cases are white applicants who were denied admission to the Law School or the university, but who would have been admitted had they been members of an approved racial minority.
The challengers cite the equal protection clause of the 14th Amendment -- equal protection under the law -- and Title VI of the 1964 Civil Rights Act, which bans discrimination based on "race, color or national origin."
Many court observers, including this one, expect the case to turn on the vote of moderate conservative Justice Sandra Day O'Connor.
Since 1993, the court's decisions on affirmative action usually have broken down along a 5-4 philosophical line that has survived the retirement and replacement of several justices.
Currently, a majority made up of three reliable conservatives -- Chief Justice William Rehnquist and justices Antonin Scalia and Clarence Thomas -- has been joined by the moderates, O'Connor and Justice Anthony Kennedy, to strike down government programs that are based on racial preference.
The University of Michigan, like most institutions of higher learning, receives federal funding, and is considered a "government actor" when it comes to race-based programs.
O'Connor has been a constant part of this majority, and very often writes its majority opinions. However, she has never taken the position that government programs based on race are always unconstitutional.
O'Connor first came to the fore on the issue of affirmative action in 1993's Shaw vs. Reno. A 5-4 majority headed by O'Connor outlawed a new North Carolina congressional district because it was irregularly gerrymandered to achieve a black majority of voters.
In her opinion, O'Connor left room for some programs to survive constitutional review.
"Classifications of citizens based solely on race are by their nature odious to a free people whose institutions are founded upon the doctrine of equality, because they threaten to stigmatize persons by reason of their membership in a racial group and to incite racial hostility," O'Connor said in the majority opinion in Shaw. "Thus, state legislation that expressly distinguishes among citizens on account of race -- whether it contains an explicit distinction or is 'unexplainable on grounds other than race' -- must be narrowly tailored to further a compelling governmental interest."
She added, however, that the Supreme Court "never has held that race-conscious state decision-making is impermissible in all circumstances."
Since Shaw, O'Connor's has been the deciding vote in a number of other cases that struck down irregular redistricting in other states because it was based on race.
In 1995's Adarand vs. Pena, a plurality led by O'Connor forced the Clinton administration to remodel its plans for an aggressive affirmative action plan.
Though the Supreme Court struck down a government program giving preference to minority-owned businesses in U.S. Department of Transportation subcontracting, O'Connor conceded that race-based government programs could survive court scrutiny if they served "a compelling governmental interest" -- such as combating ongoing, rather than historical, racial discrimination.
If O'Connor writes the opinion in either or both of the University of Michigan cases, that opinion probably will reflect both her distrust of race-based government programs and her unease with outlawing them altogether.
Some observers even predict a split decision -- a ruling for the challengers in the more blatantly raced-based undergraduate admissions policy, and a ruling for the school in the case dealing with Law School admissions.
If someone other than O'Connor writes the prevailing decisions in the University of Michigan cases, O'Connor is quite likely to join in the judgment but to write a separate opinion concurring in the judgment but that leaves the door open for some race-based programs.
In other words, instead of being 5-4 decisions they could be styled 4-1-4 decisions, with the "opinion of the court" backed by Kennedy and the three conservatives and O'Connor's concurring opinion making up the majority.
In that event, lawyers could cite either the "opinion of the court" -- though it is signed by only four justices -- or O'Connor's concurring opinion in future cases dealing with affirmative action.
Clear as mud, isn't it?
In case you aren't confused enough, the precedent for using race as an admissions factor is 1978's University of California Regents vs. Bakke.
In Bakke, a white applicant to the University of California Medical School at Davis was denied admission, even though less-qualified minority applicants were allowed to enroll.
Eventually, a Supreme Court plurality ruled that school admissions policies could take race into account, but they couldn't do so in a way that violated the Constitution's guarantee of equal protection for individual students.
Justice Lewis Powell's opinion explaining the plurality's decision said that racial and ethnic classifications by government "are inherently suspect and call for the most exacting judicial scrutiny."
While conceding that the "goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances," Powell said that the California admissions policy, "which forecloses consideration to persons like (Allan Bakke), is unnecessary to the achievement of this compelling goal and therefore invalid under the equal protection clause."
As understood since then, the Supreme Court did three things in its Bakke decision: It struck down the California admissions policy. It ordered Bakke's admission. But it also, for the first time, said race-based admissions policies could be constitutional.
Was Bakke a particularly clear decision?
Since 1978, schools either have been following it closely or violating it grossly, depending on your point of view. You can make a valid case either way.
With the advent of the University of Michigan case, the hope is that the lower courts and the nation's institutions of higher learning will not have to undergo another 25 years of Bakke confusion.
But the odds are against it.
(Nos. 02-241, Grutter vs. Bollinger et al; 02-516, Gratz and Hamacher vs. Bollinger et al)
