Copyright 2003 The New York Times Company The New
York Times
April 2, 2003, Wednesday, Late Edition -
Final
SECTION: Section A; Page 1; Column
3; National Desk
LENGTH: 1389
words
HEADLINE: THE SUPREME COURT: AFFIRMATIVE
ACTION; Justices Look for Nuance in Race-Preference Case
BYLINE: By LINDA GREENHOUSE
DATELINE: WASHINGTON, April 1
BODY: 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. Excerpts, Page A14.
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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GRAPHIC: Photo:
Supporters of affirmative action gathered at the Lincoln Memorial as the Supreme
Court heard arguments challenging racial preferences. (Doug Mills/The New York
Times)(pg. A15)