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Supreme Court divided on affirmative action
By Mark Armstrong
National/World News Co-Editor
AP PHOTO
The Supreme Court decision could have ripple effects through private and state colleges and universities, other government decision-making, and the business world.
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In the most important civil rights case of the past quarter century, the Bush administration’s top courtroom lawyer, Solicitor General Theodore Olson, told a narrowly divided Supreme Court Tuesday that the admissions policies at the University of Michigan are a “thinly disguised quota system.”
The University of Michigan is under attack for a point system that values the race of an applicant almost twice as highly as a perfect SAT score, and because its law school seeks a twelve to seventeen percent “critical mass” of minority students. The university denies that qualifies as a quota.
“The only thing that was required was to be a member of the preferred race,” Olson said of minorities at the Ann Arbor university, according to court transcripts. “It might just as well be an admission ticket. It’s stigmatizing. It’s divisive. It’s dangerous to the fabric of society.”
During two hours of oral arguments Tuesday morning, the justices sought to weigh the protections provided individuals under the United States Constitution with the broader objective of fostering diversity.
The court has held that any racial classification must be carefully crafted to achieve a “compelling” governmental interest, with the least possible harm to others. The cases will affect affirmative action not only at state universities, such as Michigan’s, but also private universities, since federal law stipulates that any discriminatory institution will be withheld federal funding.
The challengers to the University of Michigan policy cite the equal protection clause of the 14th amendment and Title VI of the 1964 Civil Rights Act which bans discrimination based on “race, color or national origin.”
The Supreme Court appears to be closely divided. The court’s four-member liberal bloc – Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, seem to support the school, whereas the court’s conservatives –Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas (the court’s only black member) appear to support the white challengers. The conservatives may be joined by Justice Anthony Kennedy, a moderate. That would essentially leave the deciding vote in the hands of Justice Sandra Day O’Connor, considered a moderate conservative, who has consistently voted against race-based government programs in the past.
The Court heard two arguments back to back Tuesday, the first dealing with the Law School, the second with undergraduate admissions.
“The Michigan Law School admissions policy fails every test this court has established,” Olson told the court.
“Number one, it’s a thinly disguised quota,” and quotas based on race are unconstitutional, Olson said. “Number two, it overtly employs stigmatizing characteristics” based on race. Throughout the oral arguments, Olson said that far from encouraging diversity, the university was actually generating racial animosity by discriminating against whites.
Olson’s attack on the use of race triggered challenges by several justices, who quoted a friend-of-the court brief filed by retired military officers that said defeating Michigan’s practice would signal the end of preferential programs used by the Air Force Academy, the Naval Academy, and West Point.
West Point spokesman Andrea Hamburger said the academy does not have quotas for applicants, but valued “a diverse corps of cadets” because it is important that officers “represent and serve as role models” for soldiers.
“We respect their opinion. …We do not accept that opinion,” said Olson, who acknowledged to Justice Ruth Bader Ginsburg the existence of race favoritism at military academies.
Speaking for the school, Washington attorney Maureen Mahoney told the court that minority students “are considered on the merits just like every other applicant. …They are given extra weight in the process because they bring something valuable to the class”[their minority status].
“It looks to me that this is just a disguised quota,” said Justice Kennedy.
The Michigan Law program is much like Harvard’s, Mahoney argued, and the students on both campuses “overwhelmingly support the program.”
“Sure, they’re in (the Law School) already,” Scalia shot back.
Minneapolis attorney Kirk Kolbo spoke for the individuals challenging the admissions program. His client, Barbara Grutter, applied to the Law School “with the personal right guaranteed by the Constitution that her race would not be counted against her,” Kolbo said according to transcripts. “But the Law School used her race against her, as it does against thousands of (white) applicants each year.” Kolbo argued that schools could use race as a factor “to remedy discrimination, not to achieve diversity.”
“Racial preferences, because they injure the rights of innocent people, because of a prohibition contained in our Constitution, simply aren’t permissible to remedy that problem,” Kolbo said. “A mere social benefit–-that is, having more minorities in particular occupations or the school–-simply doesn’t rise to the level of compelling interest.”
The court is expected to rule on the case before July.
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