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Court divided on affirmative action

By MICHAEL KIRKLAND and MARK BENJAMIN   |   April 1, 2003 at 2:05 PM   |   Comments

WASHINGTON, April 1 (UPI) -- The Bush administration's top courtroom lawyer, Solicitor General Theodore Olson, told a closely divided Supreme Court Tuesday that admissions policies at the University of Michigan are a "thinly disguised quota system."

Several white students, who would have been admitted except for their race, are challenging the university's undergraduate student admissions policy and its Law School admissions policy.

During two hours of oral arguments Tuesday morning, justices weighed the protections provided individuals under the Constitution with the broader goal of encouraging diversity.

Lawyers for the University of Michigan said they did not use racial quotas, but sought to attain a "critical mass" of minority students. They said diversity was a vital goal for higher education and the country as a whole worthy of protection from the high court. "This is of enormous importance," attorney John Payton said on behalf of the university during oral arguments about the undergraduate program. "Not just to the university of Michigan, but to the country as a whole."

The university's admission policies give minority applicants as much as a 20-point bonus on a 150-point evaluation scale.

The stakes in the University of Michigan cases are very high. The school told the justices in a brief filed last year that if the high court rules against affirmative action admissions policies, it "would produce the immediate re-segregation of many -- and perhaps most -- of this nation's finest and most selective institutions."

But the white challengers cite the equal protection clause of the 14th Amendment and Title VI of the 1964 Civil Rights Act, which bans discrimination based on "race, color or national origin."

The Supreme Court seems to be closely divided. The court's four-member liberal bloc -- Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- appear to support the school.

The court's conservatives -- Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas (the court's only black member, who rarely speaks from the bench but asked questions Tuesday) appear to support the white challengers.

The conservatives may be joined by moderate Justice Anthony Kennedy, though his vote is by no means certain. If Kennedy does go with the conservatives that would leave the deciding vote to Justice Sandra Day O'Connor.

O'Connor, a moderate conservative, has consistently voted against race-based government programs in the past. But she has said some race-based programs may be necessary.

While thousands of pro-affirmative action demonstrators chanted outside, the Supreme Court heard two arguments back to back Tuesday, the first dealing with the Law School, the second dealing with undergraduate admissions.

"The Michigan Law School admissions policy fails every test this court has established," Olson said during the first argument.

The administration is supporting the white student challengers in both cases.

"No. 1, it's a thinly disguised quota," Olson said, and quotas based on race are unconstitutional. "No. 2, it overtly employs stigmatizing characteristics" based on race.

Throughout the oral arguments, Olson said that far from encouraging diversity, the university was actually generating racial animosity by discriminating against whites. "It is stigmatizing. It is divisive," said Olson.

But speaking for the school, Washington attorney Maureen Mahoney told the justices that an unconstitutional quota would involve a "fixed number, no matter what the qualifications are."

Mahoney's argument provoked visible anger from Scalia, who constantly contradicted her argument with statements from the bench.

"Your honor, there's not a minimum" of Law School openings set aside for minorities, Mahoney said. There is no quota "as long as you don't set aside a certain number of slots."

Minority students "are considered on the merits just like every other applicant," Mahoney said. When Scalia questioned her statement, she added, "They are given extra weight in the process because they bring something valuable to the class" -- their minority status.

During the second part of the oral arguments, Payton argued on behalf of the university that instead of a quota, the undergraduate program determines the appropriate "critical mass" of minority students based on observations of how minorities behave on campus -- but that does not translate to a set number of minority students the school seeks. "It is actually not a percentage at all and is driven by the educational benefits of a diverse student body," Payton said. "That is not a fixed, precise number at all."

"It looks to me that this is just a disguised quota," said Kennedy.

The Michigan Law School program is much like Harvard's, Mahoney argued, and the students on both campuses "overwhelmingly support the program."

"Sure, they're in (the Law School) already," Scalia said.

Mahoney also argued that "95 percent" of the decisions on who to admit to the Law School "are not affected by race ... This is extremely limited in scope."

"I don't know of any other (instance) where we have decided a case because very few people were being treated unconstitutionally," Scalia shot back.

When Mahoney appeared at a loss, Rehnquist told her, "You may take that (Scalia's comment) as a statement, rather than a question."

Minneapolis attorney Kirk Kolbo spoke for the white student challenging the Law School admissions program.

His client, Barbara Grutter, applied to the Law School "with the personal right guaranteed by the Constitution that her race would not be counted against her," Kolbo said. "But the Law School used her race against her, as it does against thousands of (white) applicants each year."

Kolbo said race could never be a factor in deciding whom to admit.

But O'Connor objected from the bench.

"The (Supreme) Court has upheld using race in certain contexts," she said. "... You're speaking in absolutes, and it isn't like that."

Kolbo conceded that he "would allow recruiting targeted at minorities," and said he had no constitutional objections to the nation's military academies routing minority students to prep schools before accepting them.

Kolbo said schools could use race as a factor "to remedy discrimination, not to achieve diversity."

The University of Michigan cases may ultimately turn on a Supreme Court precedent, 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.

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.

Writing to explain the plurality position, Justice Lewis Powell 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," he said that the California admissions policy, "which forecloses consideration to persons like (Alan Bakke), is unnecessary to the achievement of this compelling goal and therefore invalid under the equal protection clause."

The Supreme Court did three things in its decision: It ordered Bakke's admission; it struck down the California admissions policy; and, for the first time, said race-based admissions policies could be constitutional.

Tuesday, O'Connor asked Olson if he agreed with Powell's explanation that race could be used as a factor. Olson said he "would disagree with that approach."

The administration proposed in briefs to the high court that schools achieve diversity by taking the top percentage from each high school in a state. Since many high schools have a majority of minority students that would ensure that some minorities would be admitted to the top colleges and universities.

Critics contend that recommendation itself would rest on an unconstitutional premise: that high schools would have to be segregated in order for it to work.

The Supreme Court should hand down a decision in both University of Michigan cases before the justices recess for the summer.

Attending Tuesday's arguments were a number of high profile politicians and lawyers, including the Rev. Jesse Jackson and Sen. Ted Kennedy, D-Mass.

Earlier during the oral arguments, Scalia asked just how long admissions policies might be tinkered with before the country attains the appropriate critical mass given that decades have gone by since desegregation. "When does all of this come to an end?"

Speaking for the university, Payton said that in Michigan and across the country, neighborhoods remain racially divided for the foreseeable future. "They have not lived together, they have not played together and they certainly have not gone to school together," Payton said. "People thought we were coming together in a way and that is not happening."

--

(No2. 02-241, Grutter vs. Bollinger et al; 02-516, Gratz and Hamacher vs. Bollinger et al.)

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