Supreme Court Tackles Affirmative Action Supreme Court Tackles Affirmative Action
By Tom Brune
Washington Bureau April 2, 2003
Washington -- As thousands demonstrated outside, the Supreme Court Tuesday repeatedly asked how, if at all, race can be used in choosing among student applications in its most significant college-affirmative action case in 25 years.
In two hours of questioning and arguments over the use of race in the admissions systems at the highly selective University of Michigan's undergraduate and law schools, the justices appeared split on the key legal and constitutional questions in the case. Justice Sandra Day O'Connor, a possible swing vote, challenged the assertion by Kirk Kolbo, representing the unsuccessful white applicants who sued, that the Constitution simply does not permit using race to choose students.
"But you're speaking in absolutes, and it isn't quite that. I think we have given recognition to the use of race in a variety of settings," O'Connor said. Yet O'Connor also questioned the lack of a fixed time period for the university's use of race.
"Have we ever approved another affirmative action program with a vague, distant termination point?" she asked. "Bakke itself," said university lawyer Maureen Mahoney, citing the court's 1978 landmark decision that has guided colleges in creating admissions systems to boost badly lagging minority enrollment and is now being challenged in the Michigan cases.
Mahoney urged the court to reaffirm Bakke and approve the university's limited use of race, denying charges it is tantamount to using quotas. The high court's decision, expected in June, could overturn Bakke, which held quotas were illegal but said using race as one of many factors to achieve student diversity is constitutional. Or it could decide only on the legality of the admissions plans.
The decision could affect hundreds of the nation's top public and private universities and the students who apply to enter their programs. Among those in the courtroom were the Rev. Jesse Jackson and Sen. Edward Kennedy (D-Mass.), supporting the university, and top Justice Department officials supporting the challengers. Speaking for the Bush administration, Solicitor General Ted Olson urged the court to reject the Michigan admissions systems as "a thinly disguised quota" that relied on racial and ethnic "stereotypes."
He said the systems failed every test of the court and the school must first try race-neutral means. But he stopped short of declaring that race could never be considered and acknowledged that U.S. military academies all use race in choosing students. Justice Anthony Kennedy, also a possible swing vote, called the university's admissions systems "disguised quotas," but also called diversity "a very legitimate concern of the state."
Justice Antonin Scalia, an ardent affirmative action foe, however, repeatedly zinged the university lawyers with questions, asking why the school doesn't choose between being "elite" with high standards or being diverse with lower standards. Justice Clarence Thomas, who rarely speaks during arguments, later picked up on Scalia's question and asked how the arguments affect historically black colleges.
"Would the same arguments with respect to diversity apply to those institutions?" he asked. University lawyer John Payton said they would. Justice Stephen Breyer, considered a liberal, often stepped in to forcefully repeat and to clarify what he called the arguments for the university. But justices kept returning with questions about the university's statement it needs to reach a "critical mass" in minority enrollment.
Is it 2 percent, 4 percent, 8 percent, asked Scalia, who added, "Once you use the term critical mass, you're in quota-land." Even Breyer cited testimony of an admissions officer saying 5 percent is too few but 10 percent might suffice. "What do I do with that piece of evidence?" he asked. Payton said "critical mass" is the level of minority students to keep them from being isolated and what works to achieve educational benefits of diversity. Everyone wants to assign a number to it, he said, "but it is not quite that precise."
Copyright © 2003, Newsday, Inc.
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