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High court clearly split
about affirmative action
Allen Pusey
The Dallas Morning News (KRT)
WASHINGTON — A clearly di
vided U.S. Supreme Court heard
arguments Tuesday for an end to
race-sensitive college admissions,
part of a searing debate — at times
between justices — on diversity,
school standards and even the na
tion’s military.
In the first major challenge to
affirmative action on campuses in
25 years, the justices revealed a
deep and even division, suggesting
that the future of affirmative ac
tion may well turn on the vote of
Justice Sandra Day O’Connor.
In back-to-back proceedings, a
lawyer for three white students ar
gued that they were turned down
for admission to the University of
Michigan because of policies that
favor minority students over
equally qualified white applicants.
Two of the students, Jennifer
Gratz, 26, and Patrick Hamacher,
24, had applied as undergraduates.
Barbara Grutter, 49, had applied to
Michigan’s law school.
All three watched their case un
fold near the front of a crowded
court gallery that included the
Rev. Jesse Jackson, Rep. John
Conyers, D-Mich., and Sen. Ed
ward Kennedy, D-Mass.
Outside, an estimated 5,000
demonstrators — many of whom
had queued up late Monday —
held an orderly and festive rally
in support of affirmative action
as the proceedings continued in
the court.
The cases mark the first serious
test for affirmative action since the
1978 decision in Regents of the
University of California v. Bakke.
That 5-4 decision struck down
racial quotas but allowed narrowly
focused race-based admissions
programs designed to accomplish
a “compelling” state interest.
The university has acknowl
edged that it considers the race of
applicants in an effort to achieve a
“critical mass” of racial diversity
on its campus. Racial diversity is
not a compelling state interest
and amounts to a racial quota,
said Kirk Kolbo, who represented
the students.
“Race, because of the Constitu
tion, should never be a factor,”
Kolbo said.
Kolbo was challenged almost
immediately by Justice O’Connor,
who pointed out that race-based
admissions had been approved by
the court to remedy past discrimi
nation. She asked whether “diver
sity” could be seen as a measure
of progress.
“In this case, diversity is not so
much a measure of anything but
an end in itself,” Kolbo said. “That
is unconstitutional.”
Kolbo was joined on behalf of
the White House by Solicitor Gen
eral Theodore Olson, who asked
the court to reconsider Bakke. He
said the Michigan system helped
perpetuate stereotypes by creating
“a separate path and a separate
door for preferred minorities.”
“There are lots of race-neutral
programs out there that don’t dis
criminate,” Olson said.
Maureen Mahoney defended the
Michigan law school admissions
process as being highly individual
ized. She said race was only one of
many factors — such as job expe
rience, socioeconomic status and
leadership potential — used to
evaluate applicants to the school.
She said the law school, rated as
one of the nation’s best, admits
only qualified students and has no
interest in admitting a minority
who might not succeed.
Justice Sealia suggested that the
school simply lower its standards.
The university “has decided to
create an elite law school accept
ing only the best students, know
ing full well that the result will be
to exclude minorities,” he said. “If
... (diversity) is important enough
to override a constitutional prohi
bition on discrimination, then
it should be important enough to
decide not to have a super-duper
law school.”
Justice O’Connor and Justice
John Paul Stevens said they were
concerned, in particular, with a
“friend of the court” brief in sup
port of Michigan filed by 29 high
ranking military officers. In the
brief, the officers describe the im
portance of affirmative action to
efforts to recruit, train and keep
minority officers in uniform. Jus
tice O’Connor asked whether Kil
bo’s complaints about affirmative
action would extend to the na
tion’s military academies.
Turn to Court, page 6
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The Oregon Humanities Center
PRESENTS THE 2002-3
Colin Ruagh Thomas O’Fallon
Memorial Lecture
by
AVI SOIFER
BOSTON COLLEGE LAW SCHOOL
Disliking Like Cases:
Has Formal Equality
Become a
Solemn Mockery?
Thursday, April 3
7:30 p.m.
175 Knight Law Center
University of Oregon
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