AFFIRMATIVE ACTION ON TRIAL: POLICY PUT TO THE TEST AFFIRMATIVE ACTION ON TRIAL: POLICY PUT TO THE TEST
Both sides face pointed questions by court's conflicted justices
April 2, 2003
BY STEPHEN HENDERSON AND MARYANNE GEORGE
FREE PRESS STAFF WRITERS
WASHINGTON -- The Supreme Court heard its first challenge to using race in the college admissions process in more than a generation Tuesday as two of its centrist justices emerged as the most conflicted members of the high court. Justices Anthony Kennedy and Sandra Day O'Connor expressed consternation about the role affirmative action should play in American life.
In a courtroom filled with cultural icons and political dignitaries who came
out to witness the historic arguments, both justices expressed strong doubts
about the assertions -- made by white students rejected by the University of
Michigan -- that universities cannot consider race in admissions decisions.
But Kennedy and O'Connor also asked the university's lawyers pointed questions about whether Michigan's programs go beyond legality, and how long they might need to be in place. O'Connor's internal debate over the issue has been discussed almost since the lawsuits were filed, and many have considered her to be the key vote. Kennedy's opinions suggest he might be more inclined to reject affirmative action, but is open to changing his mind.
Many say the court's opinion may unfold around Kennedy and O'Connor's middle-ground positions, because the other justices are so firmly divided. Some court watchers said Tuesday that Kennedy and O'Connor's struggles reflect a deeper tension on the court between its desire to deal with race discrimination, to ensure academic freedom and practice judicial restraint.
"They've got to look at all of those principles, and try to balance them in this decision," said Victor Bolden, a New Haven, Conn., lawyer who filed a brief supporting U-M on behalf of several black mayors. "They need a way to be able to look at these policies without getting too entangled in the educational process, or to be second-guessing decisions made by educators."
The cases, which separately challenge U-M's use of race in its undergraduate and law school admissions, mark the first time since the 1978 Bakke decision -- which affirmed the limited use of race in college admissions -- that the high court has considered the issue.
The justices are expected to make their decisions by July. Kirk Kolbo, an attorney for plaintiffs Barbara Grutter, Patrick Hamacher and Jennifer Gratz, didn't get through more than a few paragraphs in his opening argument before O'Connor jumped in with several questions. She challenged Kolbo to establish how he could prove that race -- and not some other factor -- prevented his clients from being accepted to U-M, and then moved to his claim that race can never be used in admissions.
"You have some precedents out there that you have to come to grips with," O'Connor said, "because the court obviously has upheld the use of race" in certain contexts. "You're speaking in absolutes, and it isn't quite that," O'Connor said. Kennedy then broke in with several questions about whether the small number of minorities on campus was a legitimate concern for universities to try to correct.
"So, if year after year after year, there's an underrepresentation, there is no cause for the state or the government or its educational experts to be concerned?" Kennedy asked incredulously. "I should think that's a very legitimate concern on the part of the state." Kennedy was equally tough on Maureen Mahoney and John Payton, the lawyers for U-M.
He suggested several times that there was a reasonable debate over whether Michigan's desire to produce a "critical mass" of minority students on its campus is a thinly disguised quota system, which would be illegal. Kennedy asked Mahoney, if that were true, "you lose, correct?" Mahoney said no, but Kennedy kept making the point, doubting whether the university's focus was anything more than a quota because during admissions considerations, its staff is constantly checking "to see what the numbers are based on race."
O'Connor was less relenting with the university's lawyers, but she expressed reservations about how long the university might have to consider race as a factor. "In all the programs which this court has upheld," O'Connor said, "you could see an end to it. There is none in this, is there? How do we deal with that?" Both Kolbo and U.S. Solicitor General Ted Olson -- who filed a brief in support of the plaintiffs -- hammered away at the university's policies. Olson said Michigan's use of race "fails every test this court has articulated for the use of race."
He called it a "quota" several times, and said it employed stigmatizing and divisive racial stereotypes. Michigan has created a separate path for minorities to enter the university, he said, and "their door is always open." He also said race-neutral alternatives are available to recruit a diverse student body. Kolbo said the university's goal of achieving a "critical mass" of minority students was "too amorphous, too undefined" to support the use of race in admissions. "There is something special about race in this country," Kolbo said.
"That's why we have a constitution" that forbids discrimination, Kolbo said. U-M's lawyers were equally forceful in their defense of the policies, saying they were necessary to produce a diverse student body benefiting all students. They argued fervently in defense of the university's notion of creating a "critical mass" of minority students, and said it wasn't a disguised quota because it entailed no fixed minimums.
Mahoney said the university might want 10 to 17 percent of its students to be minorities, but that was an "aspiration," not a hard rule. Several justices homed in on a brief written by former military officers in support of affirmative action. In particular, they asked Olson to square the government's opposition to racial preferences in this case with the fact that the nation's military academies use race-conscious admissions. Olson said the military officers' views were important, but not official.
"We do not accept the position that black soldiers will only fight for black officers and vice verse," Olson said. Justices Antonin Scalia and Clarence Thomas, who rarely speaks during arguments but chimed in Tuesday, focused in on the idea that U-M might solve its problem by backing off its high academic standards. Mahoney said that was a false choice for the school.
"I don't think there's anything in this court's cases that suggests the school has to make an election between academic excellence and racial diversity," he said. As the arguments neared their conclusion, Payton, the U-M lawyer, said: "We need to do things to bring us together, to bring us closer to the day when we have none of this."
Contact MARYANNE GEORGE at mageorge@freepress.com.
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