By George E. Curry
Editor-in-Chief NNPA News Service
Sitting for oral arguments in a pair of University of Michigan affirmative action cases on Tuesday, Supreme Court justices gave no indication of how they will vote in the case but made it clear that they are looking at more than just a black-and-white case of whether race- and gender-conscience affirmative action programs are constitutional.
In what is certain to be a landmark decision, the court is expected to rule by July whether the race-conscious affirmative action programs that cover undergraduate and the law schools at Michigan are permissible.
The conservative Center for Individual Rights brought both cases on behalf of rejected White applicants, claiming the university had violated the equal protection clause of the Constitutions 14th Amendment.
This is the first time in 25 years that the court has considered whether race is permissible in college admissions. In University of California Regents v. Bakke, the court outlawed quotas but said that race can be used as a plus factor in admissions.
Although the case before the court centers on higher education, the ruling is expected to have an impact on employment practices and tax-supported government contracting.
Justice Sandra Day OConnor is expected to be the swing vote on the sharply-divided court that often produces 5-4 decisions in contentious cases.
Solicitor General Theodore B. Olson, who argued on behalf of the federal government against the University of Michigan plans, told the court that the law school program fails every test this court has articulated for evaluating governmental racial preferences.
When OConnor asked him whether, as the court decided in Bakke, race can ever be considered a plus factor, Olson replied, Were reluctant to say never.
Kirk Kolbo, a Minneapolis lawyer who handled the rejected applicants oral arguments, described the Michigan program as a thinly disguised quota, a term Justices Antonin Scalia and Anthony Kennedy would later echo.
But OConnor seemed to disagree. She told Kolbo, You have some precedents out there that you have to come to grips with because the court obviously has upheld the use of race in making selections or choices in certain contexts, for instance, to remedy prior discrimination in other contexts.
Clarence Thomas, the only African-American on the court, broke his customary silence.
In the first hour-long case, which was brought against the law school, he said nothing. In the second case, which was heard immediately after the first case, Thomas asked several questions, none that showed a flicker of support for affirmative action.
After Payton extolled the virtues of affirmative action, saying it would help bring about more racial unity, Thomas posed his first question: Mr. Payton, do you think that your admissions standards overall at least provide some headwind to the efforts that youre talking about?
Payton replied, Yes, I do. I think they do in all sorts of ways. They are certainly producing Black students, White students, Hispanic students, Native American students who go out into our communities and change their communities.
Thomas asked Payton to at least acknowledge that there is a tension between operating an elite university and a more diverse but less prestigious institution.
But Payton rejected Thomas premise.
He replied, I think you know, some of our other schools, the nonselective schools, actually some can end up with completely un-diverse populations as well; that the fact that a school does not have selectivity doesnt mean that the community college, in fact, is diverse. So I dont think it necessarily follows at all that if you lower your standards and distribute this all across the country, we will get these educational benefits, you know, throughout our educational system.
Payton and Thomas had one final exchange.
Thomas: Now, about 10 terms ago, we had the University of Mississippi higher ed case in here and the argument was made that the historicallythe HBCs, the historically Black collegesprovided a different benefit to minorities. Would the same arguments with respect to diversity apply to those institutions?
Payton: Yes. You mean do they benefit if they had a racially and ethnically diverse student body? I believe most every single one of them do have diverse student bodies.
University attorneys seemed to have their most difficulty defining what they consider a critical mass of Black studentsthe number that would make them feel isolated and forced to carry the burden of the entire race on their shoulderswithout appearing to use a quota.
Payton, arguing in favor of a critical mass, noted that Black undergraduate enrollment at Michigan had fluctuated between 12 percent and 17 percent over the past four years.
In the law school argument, Scalia said, Once you use the term critical mass, youre into quota land.
Maureen E. Mahoney, the attorney representing the law school, countered, What a quota is under this courts cases is a fixed number. And there is no fixed number here.
In his case, Payton explained how the undergraduates point system works.
Michigans undergraduate admissions 150-point process awards 20 points to Blacks, Hispanics and Native Americans because they are underrepresented groups on campus. However, a White applicant who is socio-economically disadvantage can also earn 20 points; but an applicant cant receive points in both categories.
At Michigan, scholarship athletes are automatically awarded 20 points. Under the provosts discretion, 20 points can be awarded to an applicant regardless of his or her race. A person who lives in an underrepresented Michigan county can receive 16 points10 for being a Michigan resident and six for geographical reasons.
Sons and daughters of Michigan alumni receive an automatic four points.
Both Solicitor General Olson and Kolbo had a difficult time explaining why West Point and the U.S. Naval and Air Force academies openly embrace race-conscious recruiting but the court is being asked to do away with such programs at the University of Michigan.
Justice Ruth Bader Ginsburg, speaking to Kolbo, said: I call your attention in that regard to the brief of some retired military officers who said that to have an officer corps that includes minority members in any number, there is no way to do it other than to give not an overriding preference, but a plus for race.
When she asked Kolbo for a response, he tried to sidestep the question, saying, I dont believe we have an adequate record in this case from which to conclude that we wouldnt have representation of minorities.
But Ginsburg pressed Kolbo, telling him, Suppose that were true. Lets take that as the fact, would you still say nonetheless even if its true that there will be very few, if any, minority members admitted to the military academies, still you cannot use race?
Kolbo answered: I believe race could not be used.
Justice Breyer said he understands why Michigan wants to promote racial diversity.
'' They have a reason for it, he said. They think it breaks down stereotypes within the class; they think it's educationally beneficial, he said. They think...a legal profession, like business and the military, that is diverse is good for America.
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