High court appears split in affirmative action cases

O'Connor might provide swing vote as justices discuss Mich. programs

April 02, 2003|By Jan C. Greenburg | Jan C. Greenburg,SPECIAL TO THE SUN

WASHINGTON - Taking up the most important affirmative action cases in a generation, Supreme Court justices appeared deeply divided yesterday over whether colleges and universities can consider applicants' race as part of their efforts to attract a diverse student body.

Hearing two hours of arguments over the highly contentious issue, a majority of the justices suggested that diversity was an important goal for educational institutions. But they split sharply on whether admissions committees must limit themselves to race-neutral methods to increase minority representation in the classroom.

The court has not addressed the issue since 1978, when it said racial quotas were unconstitutional but did not definitively rule on whether schools could factor a prospective student's race into their admissions decisions. That decision has fractured lower courts, which have issued conflicting rulings on whether race can be taken into account. As a result, colleges and universities in some parts of the country cannot consider race, while those in other regions, including the Midwest, are permitted to do so.

Yesterday's cases, involving a challenge to admissions policies at the University of Michigan's undergraduate program and its law school, give the justices an opportunity to set clear standards. The decision, which is expected this summer, will affect colleges and universities across the country, both public and private. The opinion is also being closely watched in other arenas where issues of racial inequity remain contentious.

The court has long been closely divided on questions of race, with moderate Justice Sandra Day O'Connor generally considered the key swing vote. Her questions yesterday indicated she sympathizes with the goal of diversity articulated by the University of Michigan and its law school. But she raised several concerns that the policies could go too far and could continue indefinitely, in contrast with other affirmative action programs designed to be phased out.

The court's other moderate, Justice Anthony M. Kennedy, suggested he saw serious constitutional problems with both the undergraduate and the law school policies at Michigan. He suggested a state might have a strong interest in diversity but later characterized the undergraduate admissions policy as a "disguised quota."

A group of white applicants who were denied admission at the University of Michigan and its law school are urging the court to make admissions decisions colorblind and hold that any consideration of race violates the Constitution.

"The Constitution protects the rights of individuals, not racial groups," their attorney, Kirk Kolbo, told the justices.

But lawyers for Michigan argued that such a ruling would turn the elite school into an almost all-white institution. Maureen Mahoney, defending the law school policy, said it takes race into account in a "very modest, limited fashion."

"It is not a quota," she said of the policy.

John Payton, defending the undergraduate policy, said Michigan seeks to admit meaningful numbers of minorities so that they will feel comfortable expressing their ideas. The undergraduate policy awards points to applicants for a variety of factors, including race.

Weighing in for the Bush administration, Solicitor General Theodore B. Olson cast the policies as racial quotas and said they failed every test established by the court to evaluate affirmative action policies. He argued that the policies are unconstitutional because schools could pursue racially neutral ways to achieve diversity, such as aggressive recruiting and outreach.

But several justices appeared unconvinced. Justice David H. Souter said some ostensibly race-neutral approaches, such as a Texas program that guarantees admission to the top students of each high school in the state, "depend on segregation" in the state school system.

Since the administration filed court papers in January, it has come under heavy criticism for avoiding the larger issue of whether race can ever be taken into account for diversity's sake - the issue that has divided the lower courts.

The administration has maintained that the court could narrowly resolve this matter by invalidating Michigan's programs as unconstitutional, in light of the other race-neutral alternatives available. It took no position on a key opinion in the landmark 1978 Bakke case, in which the court struck down a strict quota system.

Jan C. Greenburg writes for the Chicago Tribune, a Tribune Publishing newspaper. Tribune staff reporter Bryan A. Keogh contributed to this report.

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