The U.S. Supreme Court heard vigorous arguments Tuesday challenging the affirmative action admissions policies employed by the University of Michigan's undergraduate and law schools, but the questions asked by the two likely swing votes, Justices Anthony Kennedy and Sandra Day O'Connor, seemed to signal their unwillingness to make race wholly off-limits in the college admissions process.
Justice O'Connor interrupted attorney Kirk Kolbo, who represented the students challenging the racial preferences, almost immediately after he began the argument, directing him away from speaking in constitutional "absolutes."
"You say ... [race] can't be a factor at all. Is that it? Is your position that [race] cannot be one of many factors [used in deciding which students to admit]?" Justice O'Connor asked. In response, Kolbo said that "race itself should not be a factor among others in choosing students" because of the constitutional command of colorblind equality. But Justice O'Connor seemed unconvinced by such a categorical rule. "Well, you have some -- 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," she noted.
Justice Kennedy was the next to question Kolbo's premise that any consideration of race by the University would be unconstitutional.
"Is it cause for concern ... that minority students, particularly from the black and Hispanic community, are underrepresented by a large factor, according to their ... share of the population. Suppose you have a law school with two or three percent Hispanic ... and black students, is that a legitimate concern for the university and for the State officials?" Justice Kennedy inquired. "We believe not," Kolbo responded, "for the reason that we need to get away from the notion that there's some right number for each racial group." The answer seemed to leave Justice Kennedy also unsatisfied, even with the acknowledgement that a lack of minority students could perhaps justify "broad social and political concerns" though not governmentally-imposed "racial preferences." According to Justice Kennedy's follow-up comment, the "social and political concern that there are not adequate members of ... the profession which is designed to protect our rights and to ... promote progress" could be a "legitimate concern on the part of the State."
These exchanges and others during the two hours of oral arguments suggest that there may not be five justices willing to go so far as to impose a strict rule of race neutrality in college admissions. Instead, it now seems more likely that a majority of the Court may only agree to strike down the University of Michigan's admissions policies on the grounds that they set up an impermissible racial quota by favoring students in order to ensure some minimum number in the student body, or a "critical mass." Such a result could leave intact the Regents of the University of California v. Bakke ruling that many, including the University, contend allows race to be used as a plus factor in college admissions decisions.
Striking down the University's admissions policies as a racial quota seemed to garner the support of at least four justices -- Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas -- with Justice O'Connor being necessary to achieve a majority of five.
During the arguments in the undergraduate case, Justice Kennedy commented to the attorney representing the University that "it looks to me like [this admissions scheme] is just a disguised quota." Previously, in the law school arguments, Justice Scalia pursued a similar line of thought when he asked another attorney representing the University what percentage was necessary to guarantee the "critical mass" was met. "Is two percent a critical mass?" Justice Scalia pressed. "Four percent? ... You have to pick some number don't you? ... Like eight, is eight percent? ... Now, does it stop being a quota because it's somewhere between eight and twelve, but it is a quota if it's ten? If you said ten it's bad ... but between eight and ten it's okay, because it's not a fixed number? Is that -- that's what you think the Constitution is?"
While the arguments did not betray the likely outcome of the cases or the underlying rationales, the questions and comments did expose that the Court is decidedly split. The Court will decide the cases -- Grutter v. Bollinger, No. 02-241 (law school) and Gratz v. Bollinger, No. 02-516 (undergraduate school) -- before it's current term ends this summer.
To download a copy of the amicus brief the Center filed supporting the students' challenge to the University of Michigan's affirmative action admissions policies, click here.April 3, 2003
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