High court confronts race issueWednesday, April 2, 2003
Susan Walsh / Associated Press
High court confronts race issue
Justices raise questions about diversity, quotas in debate of U-M admissions cases
By Jodi S. Cohen
WASHINGTON -- The University of Michigan may have to choose between staying highly selective or racially diverse, several U.S. Supreme Court justices suggested during historic arguments on race-conscious admissions policies. In the more than 200 questions or statements from justices Tuesday, the high court also seemed to indicate that race still matters in society as they focused much attention on a brief from senior retired military officers who said a racially diverse officer corps is crucial to national security.
"The problem is a problem of Michigan's own creation," said Justice Antonin Scalia in a point joined by two other justices. "If Michigan really cares enough about the racial imbalance ... lower the standards ... it solves the problem." It was the first time in 25 years that the nation's highest court heard arguments challenging the constitutionality of affirmative action in higher education.
The emotionally charged cases are of great importance to students, professors and college officials nationwide. If the justices rule against U-M, it could change the way colleges pick their student classes and even extend to businesses that seek diversity. "If (they) say this is unconstitutional, what about the next thing?" asked former U-M President Lee Bollinger, a legal scholar. "If we unravel this one piece, the important things in American life ... will be deeply and tragically affected."
The justices will now meet privately and write opinions in the lawsuits against U-M's undergraduate and law school admissions systems. A decision is expected in late June or early July. Solicitor General Theodore Olson, representing the Bush administration, argued vigorously against the university, saying that the U-M Law School policy is "a thinly disguised quota."
He said "race-neutral means should be used in the academies as well as other places," referring to military institutions. Kirk Kolbo, representing the three white applicants who said U-M rejected them in favor of less qualified minorities, called Michigan's undergraduate admissions policy "amorphous, ill-defined, unlimited" and said the goal of diversity is not a legally justified reason for giving minority applicants an advantage.
All nine justices, including usually silent Justice Clarence Thomas, asked questions during the two-hour session. There was occasional laughter among the 500 people -- judges, senators, regents and the plaintiffs -- stuffed into the small courtroom, as thousands of affirmative action supporters from across the country rallied outside.
The crowd cheered when U-M attorneys emerged after the arguments. Both Olson and Kolbo stopped short of saying race could never be considered, a likely nod to Justice Sandra Day O'Connor, considered the crucial swing vote and one who probably would not want to completely abolish the consideration of race. "We're reluctant to say never, Justice O'Connor," Olson said in arguing against U-M's Law School policy.
As an example, he cited a hypothetical National Institutes of Health study on diseases that affect a particular race. The bulk of O'Connor's questions were directed to U-M lawyers as she asked whether giving minorities an advantage to obtain diversity was unconstitutional because there was no clear point at which it would end. "In all (affirmative action programs) which this court has upheld ... there's been a fixed time period within which it would operate. You could see at the end -- an end to it.
There is none in this, is there?" O'Connor asked. "How do we deal with that aspect?" U-M attorney Maureen Mahoney, who defended U-M's Law School policy, said the practices could end when the number of highly-qualified minorities becomes sufficient or race is no longer a salient factor in society.
U-M attorney John Payton, who argued the undergraduate cases, replied that "we're all quite confident that it's only going to last for X number of finite years." Susan Low Bloch, a Georgetown University law professor who was in the courtroom, said O'Connor's questions could be a bad sign for U-M.
"She might strike down both policies ... because they don't have some kind of sunset period," Bloch said. The questions basically followed the 4-4 split between the four liberal justices and four conservative ones, with O'Connor being the most centrist on the issue.
However, Justice Anthony M. Kennedy, typically an opponent of affirmative action, asked questions critical of arguments on both sides. Quota question The justices are reconsidering a 1978 decision that outlawed numerical quotas but allowed race to be considered among other factors. In Tuesday's oral arguments, they tried to decipher whether U-M's undergraduate and law school admissions policies are actually illegal quotas, an argument made by the plaintiffs.
Prospective undergraduates who are minority students get a 20-point advantage on a 150-point scale, and the law school considers race to achieve a "critical mass" of minorities, enough so there aren't token numbers. Mahoney, a former clerk to Chief Justice William H. Rehnquist, argued that the law school policy is not a quota because the number of minority students has ranged from 44 to 73 during the past eight years. Race is taken into account in a "modest, limited fashion," she said.
Payton said the undergraduate policy is not a quota because the percentage of minority students in freshman classes has ranged from 12 percent to 17 percent in the last four years. Scalia and Kennedy seemed most skeptical, with one asking what she meant by "sufficient numbers" of minority students and another saying that if the school didn't want specific numbers, why did it frequently check the number of minorities offered admission?
Scalia also asked whether 2 percent or 4 percent of a class would equal a "critical mass." Mahoney said no. She was more vague when asked about a range between 8 percent and 12 percent, the more typical scenario in the law school. In the undergraduate case, Kennedy said he thought the policy looked like a "disguised quota." Military diversity
While the United States military is fighting a war in Iraq, Justice Ruth Bader Ginsburg and others seemed to express concern that without giving an advantage to minority applicants, the military academies would become less racially diverse and lead to a mostly white officer corps. "I believe race could not be used, Your Honor.
I think that other solutions could be looked at," Kolbo responded. When pressed further about the application to military schools, Kolbo said he didn't know the details of those programs and couldn't confirm information in the military brief. "Are you serious?" asked a seemingly annoyed Justice John Paul Stevens.
Scalia questioned whether colleges and universities can get diversity in other ways, such as the Texas plan, where students in the top 10 percent of their high school classes are automatically admitted to any public school.
Justice Kennedy, a potential swing voter, also was interested in whether targeted outreach to minority applicants would be an acceptable alternative. Kolbo said it was permissible to "cast a wider net" through recruiting, but not acceptable to give minorities an advantage at the "point of competition" when they apply. Olson also said universities should use race-neutral systems, including "widespread recruiting."
The issue is important because if there is a more "narrowly tailored" or less intrusive way to get diversity, a school would be required under the law to use that system instead. Public vs. private U-M President Mary Sue Coleman was concerned that Scalia, Kennedy and possibly Thomas suggested that the university may have to forgo its elite status to include diversity.
"The notion that only private universities would be highly selective is one that I find totally unacceptable," she said after the arguments. "You are going to have a highly selective institution and not have diversity? It isn't what we're all about in America."
Three seemingly sympathetic questions to U-M from Justice Thomas, the court's only African-American and one likely to vote against U-M, asked Payton about how colleges are reluctant "to choose between being an elite school and the whole diversity issue."
Justices Stephen Breyer and Ginsburg, likely supporters of race-conscious admissions policies, expressed concerns that striking down such policies could lead to disproportionately white "leadership" in the legal profession, businesses and the military, and extend to affirmative action in private sector business employment decisions.
It was a who's who list inside the courtroom, with senators Ted Kennedy and Carl Levin, all U-M regents but one, the Rev. Jesse Jackson, former U.S. Attorney Saul Green, and the three plaintiffs, among hundreds of others.
About 50 people who had camped outside for as long as four nights for a highly coveted ticket also were there. That group included plaintiff Jennifer Gratz's parents and her newlywed husband, Rob Whyte, who gave her a kiss as he entered the courtroom.
After arguments and press conferences, about 30 U-M officials gathered on the Supreme Court steps to sing "Hail to the Victors," a cheer for a U-M victory.
You can reach Jodi S. Cohen at (313) 222-2269 or jcohen@detnews.com.
Velvet S. McNeil / The Detroit News Kirk Kolbo, representing the three white applicants, called Michigan's undergraduate admissions policy "amorphous, ill-defined, unlimited."
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