Affirmative action foes field skeptical queries Page 10A
Affirmative action foes field skeptical queries
Justices hear challenges to Mich. policy
By Joan Biskupic
USA TODAY
WASHINGTON -- An attorney for white students who are trying to end racial preferences in college admissions faced a skeptical Supreme Court during arguments Tuesday in a case that could determine the future of affirmative action policies nationwide.
The justices' remarks did not definitively indicate how they will rule this summer in a case that challenges admissions programs at the University of Michigan. But a majority of the nine justices cast doubt on the notion that it is time to end initiatives that are designed to give minorities a boost.
Those justices appeared concerned that colleges, as well as U.S. military academies, could return to an era of segregation if no consideration of applicants' race were allowed. At the same time, some justices seemed bothered by Michigan's loosely defined goal of enrolling a ''critical mass'' of black, Hispanic and other minority students, and by the open-endedness of Michigan's program.
In the past, when the high court has allowed affirmative action, the approved programs have run only for fixed periods. As the drama unfolded over two hours in the ornate courtroom, thousands of college students -- most of them black supporters of affirmative action -- packed the sidewalks around the columned building in a scene that reflected the passion the Michigan dispute has generated across the nation.
Some carried signs that read ''Fight for Equality'' and ''Never Turn Back.'' The dispute represents the biggest test of racial-preference policies since 1978, when the court ruled that colleges could consider race as a factor in admissions to increase diversity on campuses.
With nearly every U.S. university now using some type of affirmative action, the stakes are enormous for college admissions, scholarships and financial aid. For years, the Supreme Court has been narrowly divided over how far government can go to compensate for historical bias.
But there were hints Tuesday that although a majority of the court has rejected racial preferences in some employment cases, education could be viewed differently. Supporters of affirmative action say that such policies are particularly warranted for colleges because campuses are forums for learning about different cultures, and because education can be a ticket to a good job and a better life.
Justice Sandra Day O'Connor, often a tie-breaker in disputes over race, was the first justice to jump in as attorney Kirk Kolbo, representing white students who were denied admission to Michigan's undergraduate and law schools, said that ''race must be beyond the bound for the university.''
O'Connor observed that colleges necessarily weigh many factors when screening hundreds of applicants for only a few slots, and said the court has never forbidden race from being a factor in all situations. ''We have given recognition to the use of race in a variety of settings,'' O'Connor said. She seemed wary of abandoning the court's 1978 opinion in Regents of the University of California vs. Bakke, which the white students have asked the court to reverse.
But later in the session, O'Connor raised concerns about upholding an open-ended affirmative action plan. She noted that most racial-preference policies endorsed by the court were for fixed time periods, typically to counter past discrimination.
Justice Anthony Kennedy, who like O'Connor is in the political center of the divided court, questioned whether campuses would see little diversity without affirmative action policies. He also was dubious about the university's goal of a ''critical mass'' of minorities in its law school and undergraduate programs.
John Payton, defending the undergraduate policy, said the affirmative action policy has led to freshman classes that are 12% to 17% minority. Without such admissions policies, he suggested in his brief, less than 5% of Michigan's undergraduates would be minorities.
''It looks to me like it is just a disguised quota,'' Kennedy said. When the high court ruled in 1978 that schools could consider race as one of many factors in admissions, it banned quotas. The court's four liberal justices, John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, seemed ready to support Michigan.
They expressed doubt that any screening policy that did not consider an applicant's race would bring about campus diversity. They were critical of U.S. Solicitor General Theodore Olson's stance that ''race-neutral'' policies -- those aimed at students from certain locales or backgrounds, for example -- would be as effective.
Attorney Maureen Mahoney, defending Michigan's law school program, said the U.S. government has long relied on Bakke's diversity grounds in education programs. Justice Antonin Scalia and Chief Justice William Rehnquist were most critical of the Michigan programs. Scalia said Michigan is caught in a dilemma of its own making.
He said it had created an elite campus with high standards, but when not enough minorities qualified for admission, the university resorted to racial preferences. He suggested that Michigan simply lower its standards.
Justice Clarence Thomas, the court's only black justice, also asked whether Michigan could avoid resorting to affirmative action if it adjusted its standards. Mahoney and Payton emphasized that the minority students enrolled were part of a pool of generally qualified students.
Thomas, who rarely asks questions from the bench, has opposed affirmative action. His few comments Tuesday did not suggest he was reversing his position.
The cases of Grutter vs. Bollinger and Gratz vs. Bollinger were brought in 1997 by Barbara Grutter, who was rejected by Michigan's law school, and by Jennifer Gratz and Patrick Hamacher, who were denied admission to the undergraduate program.
They said the university's policies giving minorities extra credit in admissions violates the 14th Amendment's guarantee of equal protection. The three challengers were in the courtroom, as were many prominent figures: civil rights leader Jesse Jackson;
Sen. Edward Kennedy, D-Mass; civil rights advocate William Coleman, who was Transportation secretary in the Ford administration; and Columbia University President Lee Bollinger, formerly president at Michigan. Seats in the courtroom for those without connections were at such a premium that people began camping in line four days before the arguments.
Lawyers who are part of the Supreme Court bar began lining up with sleeping bags at 10 p.m. Monday.
About 50 of them got seats, as did about 50 members of the public.
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