High court weighs affirmative action High court weighs affirmative action
By Patrick Healy, Globe Staff, 4/2/2003
WASHINGTON -- As civil-rights leaders sat tensely in the visitors gallery and as thousands of college students rallied outside, the justices of the US Supreme Court weighed the constitutionality of affirmative action in college admissions yesterday, with a majority expressing support for racial diversity in higher education but questioning the use of a point system to achieve that goal.
The justices are weighing the most significant legal challenge to college affirmative action since 1978, when a sharply split Supreme Court permitted colleges to treat the race of minority-group applicants as a plus among other factors in admissions.
Most highly selective American colleges and graduate schools use that standard today to promote student diversity, which they regard as having educational value. But critics of affirmative action accuse them of relying on quota-driven formulas to admit a fixed percentage of black and Hispanic students.
The court's rulings in the two new cases involving undergraduate and law school admissions at the University of Michigan will probably determine the future of affirmative action at all of Boston's highly selective universities, as well as the Ivy League, selective state schools such as the University of Massachusetts at Amherst, and top law, medical, and business schools nationwide.
The court's decisions in the two cases are expected in June. During oral arguments yesterday, legal analysts paid special attention to two justices who often cast crucial swing votes in race-related cases, Sandra Day O'Connor and Anthony M. Kennedy.
Their comments offered comfort to both supporters and opponents of affirmative action, yet did not provide a clear view of where they stand on the issue. O'Connor pointed out that highly selective public colleges face ''a serious problem'' sorting through thousands of student applications and use myriad factors other than race in determining admissions. She noted that the court has previously deemed race to be a constitutionally permissible factor in such decision-making.
But O'Connor also sounded a skeptical note about affirmative action plans that lack a time limit. Maureen E. Mahoney, a lawyer for the University of Michigan Law School, said that affirmative action policies were not permanent, but that two points of progress were needed for them to end: More high-achieving minority students in the admissions pipeline to ensure continued diversity in the classroom or sufficient social progress, to the point where race does not matter in the United States.
''We could reach a point in our society where the experience of being a minority did not make such a fundamental difference in their lives, where race didn't matter so much that it's truly salient to the law school's educational mission,'' Mahoney said.
Kennedy called diversity in the work force and professions ''a broad social and political concern'' and suggested that ensuring such diversity was ''a very legitimate concern on the part of the state.'' Some analysts pointed to his comment as significant, because the justices are deciding whether college diversity is a sufficiently compelling state interest under the Constitution's guarantee of equal treatment.
Kennedy and four other justices also expressed concern that an end to affirmative action would harm diversity in the armed services, and they noted that some high-ranking officials at the nation's military academies had come out in favor of admissions policies that consider race, as had some business leaders. But Kennedy also criticized Michigan's undergraduate admissions formula, which uses a 150-point scale to evaluate applicants and automatically awards 20 points to African-American, Hispanic, and Native American students.
At one point Kennedy called that approach ''a disguised quota,'' embracing language used by Solicitor General Theodore B. Olson, who argued against Michigan's policies on behalf of the Bush administration. Olson said that Michigan had created ''a separate path and a separate door for minority students'' with a 20-point bonus for race or ethnicity, a boost, he noted, that is worth more than six times the points awarded for a perfect application essay.
''If [minority students] meet basic qualifications, their path is always clear, and their door is always open,'' Olson argued. ''Nonpreferred racial groups face rigorous competition to get through the other door.'' While the Bush administration opposes the Michigan policies, its legal briefs in the two cases do not explicitly call on the court to ban all college affirmative action.
O'Connor pressed Olson on this point, asking him if he would ever agree with the court's 1978 ruling that allowed for a racial plus factor, in the landmark case University of California Regents v. Bakke. ''We're reluctant to say never, Justice O'Connor,'' Olson said, adding that he believed that Michigan's admissions policies went beyond use of a plus factor.
Besides Kennedy, four other justices also expressed concern about the undergraduate point scale and whether the bonus it provides minorities exceeded the Bakke standard, as Olson argued. Justice Stephen Breyer questioned whether a point system allows for ''individualized consideration'' of each applicant's file and merits, as a majority of Supreme Court justices supported when they endorsed a racial plus factor in the Bakke case.
Breyer used the example of a white star athlete from ''the poorest family around,'' who has the same academic record as a black applicant, yet cannot amass enough points to overcome the 20 points given to the black student on the basis of race.
''The black student might lose, if there were the individualized consideration,'' Breyer said. John Payton, who represented Michigan in the undergraduate case, said that in the instance of such a tie, the application files of both students would probably receive a second reading.
But Payton could not say for sure whether any minority student who had received the 20-point boost and was academically qualified and had undergone a second review had been turned down for admission or lost a tie with a white student. The university's goals of achieving a ''critical mass'' or ''meaningful numbers'' of minority students were also challenged.
The Michigan lawyers insisted there were no exact targets or quotas, but rather a range, such as between 10 to 17 percent at the law school. But Chief Justice William H. Rehnquist and Associate Justice Antonin Scalia each sounded skeptical and pressed for a specific percentage.
''Is 2 percent a critical mass, Ms. Mahoney?'' Scalia asked. ''I don't think so, your honor,'' she replied. ''OK. Four percent? . . . You have to pick some number, don't you? . . . Like 8, is 8 percent?'' ''Now, your honor -- '' she began. ''Now, does it stop being a quota because it's somewhere between 8 and 12, but it is a quota if it's 10?'' Scalia asked. ''I don't understand that reasoning.
Once you use the term critical mass, and you're, you're into quota land.'' Scalia and Justice Clarence Thomas -- the court's lone black member, who is often silent during oral arguments -- suggested that Michigan could lower its admissions standards to enroll more minority students, instead of using a point scale that might favor some races and ethnic groups over another.
But Michigan's lawyers argued that the nation needed both highly selective universities and open-enrollment schools that have diverse student populations. Legal analysts predicted yesterday that Rehnquist, Scalia, and Thomas, at least, would find fault with Michigan's affirmative-action policies, while Breyer, Justice David Souter, Justice Ruth Bader Ginsburg, and Justice John Paul Stevens would be more open to race-based admissions policies.
Before the arguments began, thousands of students gathered on the street separating the Supreme Court and the US Capitol to rally for affirmative action. The scene inside the court was more subdued, as several members of Congress and other prominent figures gathered to listen.
Civil rights leader Jesse Jackson sat with US Representative Maxine Waters, a California Democrat and member of the Congressional Black Caucus, and the two appeared solemn and stern throughout the arguments.
Several critics of affirmative action sat together, as well, such as University of California regent Ward Connerly, who led a successful fight against affirmative action in his state, and US Civil Rights Commission member Abigail Thernstrom, who is also a member of the Massachusetts Board of Education.
After the arguments, lawyers on both sides gathered outside the court, but neither side was so confident as to predict victory. ''Giving preferences based solely on skin color is wrong,'' said Jennifer Gratz, one of two white plaintiffs in the undergraduate case.
''I hope the court sees that.'' Duke University law professor Walter E. Dellinger III, a former acting solicitor general in the Clinton administration, said after observing the arguments that he believed a majority of justices would find a way to preserve affirmative action in admissions in some form.
''I think a majority of the court is persuaded that the right answer on the use of race is not never or zero,'' Dellinger said. ''The consequences on the US military would be enough to persuade a majority that the answer is not zero.''
Patrick Healy can be reached at phealy@globe.com.
This story ran on page A1 of the Boston Globe on 4/2/2003.
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