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On Affirmative Action, High Court Seeks Nuance


April 2, 2003
Copyright © 2003
THE NEW YORK TIMES. All rights reserved. 

WASHINGTON – Opponents of affirmative action came to the Supreme Court today to make an absolute case against race-conscious government policies but found the justices impatient with absolutes and hungry for nuance.

Prepared to argue the merits of the color-blind principle, the opponents found the justices more concerned about a world where color still matters and where senior military officers describe affirmative action as essential for national security.

By the end of two hours of fast-moving and sometimes surprising arguments, it appeared to many in the packed courtroom that affirmative action would survive its most important test in 25 years and that colleges and universities would still be able to take steps to ensure the presence of more than token numbers of minority students on their campuses.

Whether the precise programs the University of Michigan was defending today would survive their encounter with a more conservative Supreme Court than the one that endorsed the use of race as a vague "plus factor" in the Bakke case 25 years ago was uncertain.

The university's undergraduate admissions program gives an automatic 20 points on a 150-point scale to applicants who are black, Hispanic or American Indian. The highly selective law school does not use a formula, but regularly admits students from those three groups who have lower grades and test scores than many white students it admits.

During the arguments today, Justice Anthony M. Kennedy, a regular opponent of affirmative action, criticized the undergraduate formula as a "disguised quota" and expressed doubts about the law school's program. But late in the second hour, Justice Kennedy asked a question that was potentially one of the most significant of the entire argument.

Justice Kennedy asked John Payton, the lawyer who argued in defense of the undergraduate admissions program, to assume that the court would invalidate both affirmative action plans. What would happen then? Justice Kennedy asked. Would it be the court's job to tell the university what to do, or the university's job to devise "some other system, say, more individualized assessment in order to attain some of the goals you wish to attain?"

What was important about Justice Kennedy's choice of words was that he said "individualized assessment" and not "race-neutral alternative," the formulation urged by the lawyer for the disappointed white applicants who are suing the university and also by the Bush administration, which entered the case on their behalf. An individualized assessment presumably permits consideration of race as one of the elements in an applicant's personal profile, as a race-neutral approach would not.

The Bush administration is arguing that the Michigan programs are unconstitutional because the university has failed to show that it cannot achieve diversity through a race-neutral alternative, such as the plan in use at the University of Texas, which offers admission to students graduating in the top 10 percent of every high school in the state. California and Florida use similar plans.

There was little discussion in the courtroom today of the percentage approach. Instead, the justices consumed much of the time allotted to Solicitor General Theodore B. Olson in firing questions about a brief filed in support of Michigan by a group of retired senior military officers and former military academy superintendents. The brief argued that an integrated officer corps was essential to national security and could be achieved only through affirmative action at the nation's military academies. It was obvious that of the 102 briefs filed in the two cases, this was the one that had grabbed the attention of justices across the court's ideological spectrum.

Mr. Olson did not welcome the line of questions, which not only stalled the flow of his own argument but put the administration, with its opposition to affirmative action, in a delicate position. "We respect the opinions of those individuals," he said, "but the position of the United States is that we do not accept the proposition that black soldiers will only fight for black officers." He added: "Race neutral means should be used in the academies as well as other places."

Justice Ruth Bader Ginsburg asked, "But you recognize, General Olson, that here and now, all of the military academies do have race preference programs in admissions?"

She added, "Is that illegal, what they're doing?"

Mr. Olson replied, "We haven't examined that, and we haven't presented a brief with respect to the specifics of each individual academy."

The delicacy of the solicitor general's personal, as opposed to institutional, position was also evident. As a lawyer in private practice during the 1990's, he opposed affirmative action and successfully argued the case that shut down affirmative action at the University of Texas. In that case, a federal appeals court declared that the Supreme Court's Bakke decision was no longer valid.

But the briefs that Mr. Olson filed for the administration in the Michigan cases did not go that far – Mr. Olson lost an internal battle over the wording – and assumed for the sake of argument that the Bakke ruling was still good law and that "diversity," as used in the controlling opinion by Justice Lewis F. Powell Jr., was a valid rationale for affirmative action. Justice Kennedy asked Mr. Olson whether he disagreed that diversity was a "permissible governmental goal."

Mr. Olson replied that under the law school's program, diversity was "an end in and of itself" and, as such, "obviously it's constitutionally objectionable."

So wasn't the Texas 10 percent plan just as objectionable, Justice Stephen G. Breyer wanted to know, because its motive and purpose "is to have diversity in the college?"

That was not the "stated motive," Mr. Olson replied. He said the purpose of the program was to break barriers and open access, and accepting the top 10 percent was "one very race-neutral means of accomplishing that legitimate objective."

The lawyer defending the University of Michigan Law School's program was Maureen E. Mahoney, a veteran Supreme Court litigator who was a law clerk for Chief Justice William H. Rehnquist when he was an associate justice. Her experience showed as she held her ground in a series of rapid-fire questions from Justice Antonin Scalia, who said he could not take Michigan's position seriously because "the problem is a problem of Michigan's own creation."

Having "decided to create an elite law school," Justice Scalia said, Michigan was now complaining that in order to achieve diversity, it needed to ignore "the Constitution's prohibition of distribution on the basis of race." What was so important about having a "super-duper law school," Justice Scalia, a graduate of Harvard Law School, asked.

Ms. Mahoney replied, "I don't think there's anything in this court's cases that suggests that the law school has to make an election between academic excellence and racial diversity."

Kirk O. Kolbo, a lawyer from Minneapolis, represented the white plaintiffs in both cases – Barbara Grutter, who was turned down by the law school when she applied at the age of 43, and Jennifer Gratz and Patrick Hamacher, who failed to win admission as undergraduates. The United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the law school plan in Grutter v. Bollinger, No. 02-241. It had not yet ruled on the undergraduate plan, in Gratz v. Bollinger, No. 02-516, when the Supreme Court decided to hear both cases. The Court is due to issue its decisions by early summer.

"The Constitution protects the rights of individuals, not racial groups," Mr. Kolbo said. He described his clients as the victims of discrimination.

Justice Sandra Day O'Connor, whose position at the center of the court on this issue made her the object of particular attention, was the first to challenge Mr. Kolbo. Was he saying that race "can't be a factor at all," Justice O'Connor wanted to know.

"Race itself should not be a factor among others in choosing students, because of the Constitution," Mr. Kolbo replied.

Justice O'Connor objected that the court's precedents held otherwise. "You are speaking in absolutes, and it isn't quite that," she said.

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