WASHINGTON – Unlike most other Supreme Court justices, who focused on questioning the details of each side’s legal standpoint during yesterday’s oral arguments, Justice Anthony Kennedy actually voiced his views on the University’s use of race in the LSA admissions policy.
Kennedy is considered by many legal experts to be a moderate vote, but his statements suggest that Kennedy may vote to overturn one or both of the University’s policies, while upholding the use of race as an admissions factor in general.
“I have to say that in looking at your program, it looks to me like this is just a disguised quota,” Kennedy said after University lawyer John Payton finished clarifying the University’s definition of a critical mass in its admissions policies.
The University defines a critical mass as having enough minorities so that a few individuals are not considered representatives for their race.
But Kennedy later asked a hypothetical question which indicates that he may still uphold the 1978 Regents of the University of California v. Bakke ruling, which banned racial quotas but permitted the use of race as one of many admissions factors.
“Suppose the court were to say that the 20-point system and the Law School system looked just too much like a quota,” Kennedy said. “Is it your burden to come up with some other system, say, more individualized assessment, in order to attain some of the goals you wish to attain?” Kennedy’s use of the phrase “individual assessment” may indicate that instead of advocating race-neutral programs, he supports replacing the University’s policies with another program that considers many admissions factors, possibly including race.
The Center for Individual Rights, the law firm representing the plaintiffs in the lawsuits, has advocated replacing the University’s admissions systems with race-neutral systems such as the Ten Percent Plan used in Texas. Such plans guarantee that students graduating in the top 10 percent of their high school classes will be admitted to a state university, and have been criticized by the University for not using a holistic review of all applicants. CIR’s legal team criticized the University for using admissions policies that guarantee enrollment for minority students who achieve certain minimal qualifications.
“The University of Michigan admissions program has created a separate path and a separate door for preferred minorities,” said U.S. Solicitor General Theodore Olson, arguing on behalf of the plaintiffs. “For those groups, if they meet basic qualifications, their path is always clear and their door is always open.”
Justice Antonin Scalia also said minorities who meet the minimum requirements are automatically accepted, and he suggested the University lower its academic standards if it wishes to enroll more minorities in a constitutional manner.
During the oral arguments, Payton attempted to further clarify the meaning of critical mass, which the justices asked about during arguments for both cases. He said the University aims to enroll minorities in great enough numbers so that non-minority students will not conclude that all minorities think or act in the same way. “Students, I think as we know, learn a tremendous amount from each other. Their education is much more than the classroom. It’s in the dorm, it’s in the dining halls, it’s in the coffee houses,” Payton said. “If there are too few African American students … there’s a risk that those students will feel that they have to represent their group, their race.”
Justice Ruth Bader Ginsburg, who will most likely vote in favor of the University, assisted its attorneys by explaining to the other justices that critical mass is a sociological term originally used “with respect to the enrollment of women in law school.”
Justice David Souter said the University’s goal in achieving a critical mass is to show non-minority students – many of whom encountered little diversity during high school, University lawyers claim – that black, Hispanic and Native American students have certain unique perspectives, but also that they do not always share the same viewpoints.
“The objective is to show students what the correlation or no correlation is between races and points of view. And it seems to me that the Michigan plan is equally consistent with the latter interpretation as with the former,” Souter said.