WASHINGTON – The most important affirmative action case in a generation went before the Supreme Court yesterday, giving lawyers on both sides their last chance to sway undecided justices.
Thousands of vocal supporters surrounded the court’s perimeter, holding signs, beating drums and voicing their concern for preserving integration in education.
The hundreds of spectators who crowded into the historic courtroom, which is no bigger than a medium-sized lecture hall, were insulated from the protests. They watched the nine Supreme Court justices fire a barrage of questions at attorneys representing the University and the rejected applicants who sued it.
Instead of providing each side with the opportunity to reiterate its basic legal arguments, the justices instead targeted specific details of the cases. They asked fast-paced questions challenging the importance of diversity in society and education, the University’s goal of enrolling a critical mass of minorities through race-conscious admissions policies and the validity of race-blind alternative programs.
Attorneys from the Center for Individual Rights – the law firm representing the plaintiffs – argued that minorities meeting certain minimal qualifications are automatically accepted into the College of Literature, Science and the Arts.
“These systems featured separate admissions guidelines for different races, protected or reserved seats in the class for select minorities,” CIR lead attorney Kirk Kolbo said.
Some of the justices appeared to accept Kolbo’s arguments. Justice Anthony Kennedy, considered a key moderate vote on the bench, joined Justice Antonin Scalia in saying that LSA seems to be operating a quota.
Kennedy posed questions about the importance of diversity in public institutions and whether schools should be permitted to use race as an admissions factor to achieve diversity. He asked Kolbo whether states should be concerned if law schools only enroll 2 to 3 percent minorities, and if the majority of future lawyers are white.
“It’s a broad social and political concern that there are not adequate members of the profession which is designed to protect our rights and to promote progress. I should think that’s a very legitimate concern,” he said.
Despite the brevity of the proceedings and the targeted inquiries, both sides said their lawyers responded well and voiced optimism that the justices will rule in their favor.
“I think it went well,” University President Mary Sue Coleman said. “The court was prepared … I think they asked the right questions.”
Former University President Lee Bollinger, the lead defendant in both lawsuits, said the justices asked questions attempting to examine new aspects of the cases.
“With the University of Michigan’s stand on this, all of higher education joined the University,” he said. “What it has shown is that the legacy (of) (ITAL) Brown v. Board of Education (ITAL) (abolishing racial segregation in education) remains now a mainstream part of society.”
Yet, CIR spokesman Curt Levey said the proceedings clearly indicate the justices will overturn the LSA policy, ruling that it is a disguised quota.
“I was left with the impression that there is very little chance the court will uphold Michigan’s policies,” he said. “You can’t name one of the nine justices who indicated they buy Michigan’s distinction between critical mass and a quota.”
Justice Sandra Day O’Connor, predicted by many legal experts as the deciding vote in the cases, initiated the questioning by asking Kolbo whether CIR contends that race can constitutionally be used in college admissions. After Kolbo replied that “race itself should not be a factor among others,” O’Connor pointed to Justice Lewis Powell’s opinion in the 1978 (ITAL) Regents of the University of California v. Bakke (ITAL) ruling, which banned racial quotas but permitted the use of race as an admissions factor.
“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,” O’Connor said, indicating that she may possibly support race-conscious admissions in general.
But in every past instance the court has permitted the use of racial plus factors, it has also required a clear outline of how long the policies will be necessary, O’Connor said.
Levey said although O’Connor was difficult to read during the proceedings, she “always stressed that a compelling state interest in racial preferences has to be limited in scope and interest.”
University attorney Maureen Mahoney said the University will stop using racial plus factors when they are no longer necessary to attain a critical mass of minorities. Evan Caminker, associate dean of the Law School, said the court is more interested in a logical stopping point than a set number of years.
“The court has not in other contexts said there has to be a fixed date,” he said.
While both parties seemed optimistic and relieved to be past the long-awaited arguments, a group that advocates a different defense of the University’s policies was displeased.
Theodore Shaw, lawyer for the National Association for the Advancement of Colored People, said the University did not focus enough on affirmative action as an aspect of the civil rights movement. The group, along with other intervenors in the case, believes race should be considered to counter discrimination.