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Analysis: Affirmative action at risk

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent

WASHINGTON, June 19 (UPI) -- With the Supreme Court of the United States poised to rule on two University of Michigan affirmative action cases, supporters and opponents of university policy remain convinced of the justice of their cause.

They also predict different outcomes when the justices hand down their rulings, probably sometime next week.

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Decisions in the cases are highly anticipated, not only because they will have a direct effect on whether government can take actions based on race.

The decisions almost certainly will influence how the private sector reaches out to minorities in job recruitment and promotion, even though the rulings will not have the direct force of law in that arena.

Media outlets are being flooded with offers to analyze the cases. Some of the offers come from those directly or indirectly involved; others come from attorneys or academicians who have no connection with the Michigan dispute, but have particular expertise in affirmative action or other aspects of race relations.

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However, United Press International sought the opinions of two individuals who have unique and opposite perspectives of the issue: Peter Kirsanow, appointed by President George W. Bush to the U.S. Civil Rights Commission; and Marvin Krislov, for the past five years vice president and general counsel of the University of Michigan.

First, a little background.

Two University of Michigan cases have reached the Supreme Court.

In one, 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 has not ruled on the matter.

In both cases, the challengers 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 a racial minority, who are given as much as a 20-point bonus on a 150-point evaluation scale that includes a number of factors.

The 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."

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Decisions in the University of Michigan cases may ultimately depend on 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.

Eventually, a 5-4 Supreme Court majority 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.

Writing for the prevailing Supreme Court plurality in 1978, 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."

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

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The University of Michigan, in briefs filed last year, told the Supreme Court that Bakke continues to be good law. The school said a new Supreme Court decision overturning Bakke "would produce the immediate re-segregation of many -- and perhaps most -- of this nation's finest and most selective institutions."

With Bakke in mind, the current members of the Supreme Court are expected to decide two things in the University of Michigan cases: Whether the Bakke decision is correct in finding that "diversity" is a compelling state interest; and, if so, whether the Michigan programs are "narrowly tailored" to further that interest.

From his perspective on the Civil Rights Commission, Kirsanow said he believes a narrow majority of justices will answer "no" to the first question -- deciding that diversity is not a compelling state interest and therefore reversing Bakke.

In believing that the justices will rule completely in favor of the challengers, Kirsanow acknowledged he is in the minority of analysts.

"I really believe that the court's going to say it's not a compelling state interest and wipe that out completely," Kirsanow said. "That means that using diversity is not going to cut it anymore. Now you're going to have to find race-neutral means" to ensure that minorities are represented in institutions of higher learning.

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"Why take a politically charged case like this," Kirsanow asked, "if (the court) is not going to make a bright-line ruling?" The commissioner points to the language of the 14th Amendment.

The amendment says "no person shall be deprived of equal protection under the law," Kirsanow said -- it does not say "'no black person' ... There's got to be an objective standard."

In fact, Kirsanow disagrees with a brief filed in the case on behalf of the Bush administration by U.S. Solicitor General Theodore Olson. The brief, which supports the white challengers and argues that Michigan's programs are unconstitutional racial quotas, nevertheless concedes that diversity is a compelling state interest.

Kirsanow, however, is no stranger to controversy. When Bush appointed him to the commission in 2002, it took a court ruling to allow him to take his seat in the face of Democratic opposition. Democrats, including the commission chairwoman, claimed that the term of the previous occupant had not expired.

Kirsanow sees a slim conservative majority prevailing in the Michigan cases, consisting in part of Chief Justice William Rehnquist, moderate conservative Justice Anthony Kennedy, and conservative Justices Antonin Scalia and Clarence Thomas.

The fifth vote would come from moderate conservative Justice Sandra Day O'Connor, Kirsanow believes.

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The commissioner doesn't underplay the gravity of the Michigan cases. "This is the most important civil rights case in the last 50 years," he said.

But Kirsanow disagrees sharply with those who say Supreme Court decisions against the school will negatively affect blacks and other minorities.

What is really at stake, Kirsanow said, "is political bragging rights."

If the Supreme Court rules that diversity is not compelling interest and schools can't use race in admissions policies, "that will only eliminate one tool by which colleges can ensure that races are represented," he said.

Schools will resort to "socio-economic affirmative action" -- preferences based on income and social status -- or percentage plans, such as those already in place in Texas, Florida, and California, following lower-court decisions or referendum.

Percentage plans allow colleges and universities to accept a certain percentage of the top students from all high schools. Since many high schools in fact remain almost exclusively black or white or Hispanic, despite attempts at integration, minority students are ensured slots in higher education.

Kirsanow cites the California experience after Proposition 209 was implemented.

California is considered a liberal and Democratic state, but Prop 209 was approved by nearly 55 percent of the state's voters in 1996. Prop 209 bans the use of race and gender in public hiring, contracting and college admissions. It only went into effect after a court challenge was unsuccessful.

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After the advent of Prop 209, Kirsanow said, "as one would expect numbers began to drop at elite schools," but minority enrollment at so-called second-tier schools rose. And gradually, Kirsanow contended, minority enrollment at elite schools is reaching pre-Prop 209 levels.

"A lot of people are going to be very nervous about (adverse Supreme Court decisions), but overall there's going to be very little change in minority status, " Kirsanow argued.

There will even be a "silver lining" for minorities, he added -- a decrease in the drop-out rate.

The university's Krislov, of course, disagrees with Kirsanow about the impact of Supreme Court decisions in the cases.

The dispute "obviously tests whether Bakke's principle, that diversity is a compelling interest, is the law of the land," Krislov said. " ... Quotas and set-asides are not narrowly tailored, but you can consider (race) as a plus factor."

Negative rulings in the Michigan cases would be an educational disaster, he argued. "The population of minorities at colleges and universities will likely dramatically decline if there's a reversal of the Bakke principles," Krislov said.

The general counsel points to studies with "models showing what the population of (the University of Michigan) would look like" if race is not a factor in admissions. The studies, which are part of the record in the cases, show that without the affirmative action programs, minorities would have made up only 4 percent of the school population in 2000, instead of the 14 percent that was achieved.

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He also disagrees with Kirsanow about the effect of Proposition 209 in California. Minority enrollment rates in that state's schools "have started to rebound a little bit, but they're not where they were pre-Prop 209," he said.

As for a "silver lining" in drop-out rates, Krislov said, those rates are affected by a "combination of factors ... most of them not related to academics." He pointed to a study by the non-profit Century Foundation showing that drop-out rates are more connected to students' socio-economic status rather than to their race.

Regarding the "re-segregation" of the nation's college's and universities, "we think that is likely to occur" with negative Supreme Court decisions, Krislov said, "particularly if you look at the California example ... That's why the corporations, the (U.S.) military academies have talked about the importance of diversity" in briefs supporting the school's position before the Supreme Court.

Krislov also disagrees with Kirsanow on the probable substance of Supreme Court decisions in the case -- though he doesn't make his prediction with the commissioner's degree of confidence.

"We're cautiously optimistic" that the Supreme Court will rule for the school, he said. "The main issue for us is whether the Bakke principle can be relied upon. We and other universities have relied on it for 25 years. We are cautiously optimistic that will be upheld."

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As for whether the Law School and undergraduate programs will survive scrutiny as "narrowly tailored," "It's much harder to predict that," Krislov said.

In any case, the battle is joined now, and Krislov believes the stakes are very high: "We just can't afford to pass these concerns on for another 25 or 50 years."

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