Affirmative Action On High Court Agenda

Announcing its schedule for the months ahead, the U.S. Supreme Court revealed Monday that it would soon rule in two areas it has not often tread: affirmative action and sodomy.

The justices will decide by next June whether white applicants to the University of Michigan and its law school were unconstitutionally turned down because of their race — revisiting an issue that the high court has dealt with only once before, in a cloudy 1978 ruling that led to more confusion.

The stakes are enormous, reports CBS News Legal Consultant Andrew Cohen. If the court strikes down the school's affirmative action policies no such policy in the country will be valid. And if the court upholds the school's policy, or even just refines it, it will be very hard for opponents of affirmative action to challenge these sorts of policies anywhere.

The plaintiff in the case, Barbara Grutter, was a 43-year-old businesswoman and mother when she applied to the law school in 1996 but was not accepted. She said that she suspected reverse discrimination after seeing statistics about the racial makeup and qualifications of recent Michigan law classes, and claims that violates the Constitution's equal protection clause.

As CBS News Correspondent Sharyl Attkisson reports, like many colleges, the University of Michigan gives equally qualified minorities an edge over whites. A perfect SAT score is worth 12 points, an outstanding essay just 1, but being a minority is worth twenty points.

Grutter told 60 Minutes' Ed Bradley her slot went to a less qualified minority.

"They say things like 'we're selective'. But they're making selections on racial lines," Grutter says.

About 15 percent of the first year Michigan law students are minorities. The Supreme Court was told that without diversity considerations, the number of minorities in a freshman class could plunge to less than .04 percent.

The University's President argues that would be a huge loss.

"We think that diverse classroom offers the very best learning environment that students could possibly have and that's what our admissions policies do," Mary Sue Coleman, University of Michigan President, tells Attkisson.

A divided appeals court upheld the law school's practices in May, saying the Constitution allows colleges and graduate schools to seek "a meaningful number" of minority students, so long as the school avoids a fixed quota system.

The 6th U.S. Circuit Court of Appeals in Cincinnati has not ruled in a companion case addressing the school's undergraduate policy. After passing up other affirmative action cases in recent years, the Supreme Court took the unusual step of taking the case without awaiting a ruling by the lower court.

The last college higher education case at the high court involved Allan Bakke, a white man rejected for admission to a California medical school while minorities with lower test scores got in through a special program.

In that case, the court on a 5-4 vote outlawed racial quotas, but Justice Lewis F. Powell wrote separately that schools could still consider race, so long as they did not use quotas. Courts around the country have set contradictory rules.

"Supporters of affirmative action should be concerned that this conservative court will toss out these sorts of programs altogether," reports Cohen. "But opponents of affirmative action can't be cocky because this Court has surprised a lot of people before with moderate or even liberal-leaning positions on these sorts of issues."

Also Monday, the Court said it would review the prosecution of two men under a 28-year-old Texas law making it a crime to engage in same-sex intercourse — a case that tests the constitutionality of sodomy laws in 13 states.

The case raises several questions of personal privacy and equal protection. The court ruled 5-4 in 1986 that consenting adults have no constitutional right to private homosexual sex.

Sodomy is defined as abnormal sex, in some states including anal and oral sex. Nine states ban consensual sodomy for everyone: Mississippi, Alabama, Florida, Idaho, Louisiana, North Carolina, South Carolina, Utah and Virginia. In addition, Texas, Kansas, Missouri and Oklahoma punish only homosexual sodomy.

John Geddes Lawrence and Tyron Garner were arrested in Lawrence's apartment in 1998 after police responded to a false report of an armed intruder. They were jailed overnight and later fined $200 under Texas' Homosexual Conduct Law, which classifies anal or oral sex between two men or two women as deviate sexual intercourse.

The men's lawyers said the convictions would prevent them from getting certain jobs, and would in some states require them to register as sex offenders.

William Delmore III, an assistant district attorney in Texas, said people who don't like the law should take it up with the Texas Legislature, not courts.

Delmore said the Texas law does not just target gays and lesbians. He said it also could be used for bisexuals and heterosexuals "who are tempted to engage in homosexual conduct." The law is part of Texas' "communal belief that the conduct is wrong and should be discouraged," he wrote in a filing.

In other action Monday, the court:

  • agreed to decide whether prison inmates have a constitutional right to jailhouse visits from young relatives and others.
  • said it would consider limits on prosecuting child molestation crimes, agreeing to hear an appeal from a California grandfather charged with sexually abusing two family members decades earlier.
  • refused to stop a lawsuit that accused FBI officials of punishing an investigator in another agency for criticizing the Clinton administration's national security.
  • refused to hear a challenge to the anti-abortion license plates that are available in Louisiana.
  • rejected a juvenile death row case involving a Mississippi inmate who was 17 when he used his bike as a getaway vehicle in a fatal convenience store robbery.
  • agreed to decide if police officers can search Indian reservations to investigate or prosecute off-reservation violations of state law.
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