Supreme Court Hears Arguments In Key Affirmative Action Case

By Mark Walsh — April 01, 2003 6 min read
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A quarter-century after outlawing strict racial quotas in higher education, the U.S. Supreme Court on April 1 heard arguments on whether race can still be one factor among many that colleges use to achieve diversity in admissions.

Based on the comments and questions of the court’s two likely swing votes, Justices Sandra Day O’Connor and Anthony M. Kennedy, it appeared unlikely that a majority was ready to prohibit completely the consideration of race to achieve diversity in a law school or undergraduate entering class.

Court materials on the Michigan affirmative action cases, including previous decisions and briefs, are compiled by Findlaw.

An audio transcript of the April 1, 2003, oral arguments is posted by C-Span. (Requires the Real Player.)

“You say race can’t be a factor at all” in admissions decisions, Justice O’Connor said to the lawyer representing white applicants who challenged racial preferences in the University of Michigan’s law school and undergraduate program. “I think we have given recognition to the use of race in a variety of settings.”

But Justice Kennedy and others were troubled by the admissions system in Michigan’s undergraduate college, which awards 20 points on a 150-point scale to African-American, Hispanic, and Native American applicants.

“It looks to me just like a disguised quota,” he told John Payton, a Washington-based lawyer who was defending the undergraduate program.

Three White Applicants

The high court devoted an intense two hours to the Michigan admissions cases, Grutter v. Bollinger and Gratz v. Bollinger (Case Nos. 02-241 and 02-516).

The courtroom was packed, with luminaries such as Sen. Edward M. Kennedy, D- Mass., and the Rev. Jesse L. Jackson in the audience. Outside, a crowd estimated at more than 5,000 demonstrated both for and against the Michigan policies. Supporters of the policies came by the busload from Michigan and elsewhere, and they began a three-mile march from the Supreme Court to the Lincoln Memorial as the arguments continued.

The cases are the Supreme Court’s most extensive look at racial preferences in higher education since its landmark 1978 ruling in Regents of the University of California v. Bakke. That splintered decision struck down racial quotas but held that race could be one factor considered in admissions.

The Center for Individual Rights, a legal-advocacy organization based here, sued the University of Michigan in 1997 on behalf of one white applicant rejected by the law school and two white applicants rejected by the undergraduate program.

Barbara Grutter was 43 when she applied to the Michigan Law School in 1996. She had a 3.8 undergraduate grade point average and a Law School Admission Test score that put her in the 86th percentile nationally. She was rejected for admission to the law school, which is one of the nation’s most selective. School officials acknowledged in the course of the lawsuit that Ms. Grutter probably would have been admitted if she were a member of one of the underrepresented minority groups.

Jennifer Gratz and Patrick Hamacher brought the undergraduate case. Ms. Gratz applied for the fall 1995 entering class at the flagship Ann Arbor campus with a high school grade point average of 3.8 and an ACT score of 25 out of a possible 36. She was at first put on a waiting list and later rejected. She graduated in 1999 from the University of Michigan-Dearborn.

Mr. Hamacher applied for the fall 1997 entering class in Ann Arbor with a 3.32 high school GPA and a 28 on the ACT. He was rejected and ended up graduating from Michigan State University in 2001.

Separate federal district judges in Detroit heard the law school and undergraduate cases. In 2000, a judge upheld the consideration of race in the undergraduate case. The judge in the law school case ruled the opposite way.

The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, heard arguments in both cases in 2001. In May 2002, it ruled 5-4 in the law school case in favor of the university. The majority said that the late Justice Lewis F. Powell Jr.'s concurring opinion in Bakke had established diversity as a compelling governmental interest that justified the use of racial preferences.

The 6th Circuit court never ruled on the undergraduate case. The Supreme Court accepted appeals involving both cases for review. The high court’s decisions are expected to have an impact in elementary and secondary education regarding the consideration of race for magnet schools and other voluntary affirmative action programs.

An Admissions Ticket?

Kirk O. Kolbo, a Minneapolis lawyer, argued the cases for the three rejected white applicants.

“The fundamental problem with the diversity rationale is that it depends on the standardless discretion of educators,” he said. The question of which minorities are underrepresented and which should benefit from racial preferences can change over time and are not anchored to constitutionally permissible justifications, he said.

U.S. Solicitor General Theodore B. Olson also argued for the white applicants in both cases, and he attempted to walk the delicate line that the Bush administration’s friend- of-the-court brief drew on the issue.

“The University of Michigan admissions program has created a separate path and a separate door for preferred minority groups,” he said. The 20-point bonus for minorities applying to the undergraduate program “might as well be an admissions ticket,” he added, because if the minority- group members meet the university’s minimum qualifications, they will get in.

Earlier, in the law school segment of the argument, Mr. Olson said the administration was “reluctant to say never” to consideration of race. He argued that race- neutral alternatives such as the “percentage plans” in place in California and Texas could help universities achieve the desired goal of diverse classes.

Justice David H. Souter asked whether such plans, which guarantee admission to state colleges and universities for a certain proportion of students from each high school in a state, “depend on the segregation of the schools” for any success in helping colleges achieve racial diversity.

Mr. Olson said there was “no evidence” that the plans relied on segregation in K-12 education.

‘Critical Mass’

When it came to Michigan’s arguments, both Mr. Payton, representing the undergraduate program, and Washington lawyer Maureen E. Mahoney, defending the law school, repeatedly sparred with conservative members of the court over the question of whether each program had specific numerical goals for minority admissions.

Justice Antonin Scalia pressed Ms. Mahoney on whether terms such as “sufficient number” and “critical mass” of underrepresented minorities sought by the law school were really just other names for quotas.

“Once you use a term like ‘critical mass,’ you’re really into Quota Land,” Justice Scalia said.

But a university’s diversity goals “can be related to a number without being a quota,” Ms. Mahoney said. She cited guidance from federal education officials issued in 1979, shortly after the Bakke decision, that said “numerical goals can be taken into account.”

“Excuse me,” Chief Justice William H. Rehnquist interjected. “They don’t interpret the Constitution.”

Later, he pressed Mr. Payton on the meaning of “critical mass.”

“It’s a number where students feel comfortable as individuals,” the lawyer said. “If we did not take race into account, we would not be able to get the critical mass we want.”

Michigan is a “very segregated state” where white and minority young people have very little interaction before they enter college, Mr. Payton argued. Having a critical mass of minority students at the University of Michigan helps undergraduates get to know one another in dorms and coffeehouses, where they can break down racial stereotypes, he added.

Justice Clarence Thomas, who rarely asks questions during oral arguments, spoke up near the end of the two-hour session. He asked Mr. Payton whether Michigan’s arguments about the importance of diversity apply to historically black colleges and universities.

“Yes, they have more diversity in some respects,” Mr. Payton said, but his time ran out before he could explain further.

The cases are expected to be decided by early July.

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