Justices Grill Affirmative Action Lawyers

Hundreds participate in a rally outside the Supreme Court in Washingtoin, Tuesday, April 1, 2003. Hundreds of people gathered outside the courthouse Tuesday morning, hours ahead of oral arguments in the University of Michigan affirmative action case. Many people bore signs and chanted slogans supporting affirmative action.
Supreme Court justices, confronting affirmative action for the first time since outlawing quotas 25 years ago, debated Tuesday whether colleges and universities may legally consider race when admitting students.

Hearing oral arguments on admissions policies at the University of Michigan and its law school, the justices aggressively questioned lawyers for plaintiffs and the school. The Bush administration's top lawyer, also took part, arguing that the university's law school program "is a thinly disguised quota."

But Solicitor General Theodore Olson stopped short of declaring that race could never be part of admissions policies.

The arguments took place in the ornate courtroom as a crowd of 5,000 to 7,000 mostly pro-affirmative action demonstrators carried placards and shouted slogans outside.

It's clear that this case will be decided by Justices Sandra Day O'Connor and Anthony Kennedy, who usually dictate how the close cases go, said CBSNews.com Legal Analyst Andrew Cohen. So both the questions asked by the justices and the answers given by the lawyers focus upon persuading those two justices to go in one direction or the other.

Not since the court ruled out quotas in the University of California vs. Bakke decision a quarter-century ago had justices come to such a direct confrontation with the affirmative action issue. Their decision, expected in a few months, will be awaited not only by higher education but by the business world as well.

It won't be long before the Court decides, said Cohen: the justices will issue their ruling in the case by the end of June, just a few months from now, unless there is such discord within the Court that the justices need to delay the decision until the fall. That's unlikely but possible.

The Court either will throw out affirmative action altogether or it will refine the current rules to give more clarity to schools and perhaps businesses and the military, all of which are struggling to apply the current rules in a way that is consistent and sensible.

Kirk Kolbo, a lawyer for a rejected white applicant at the University of Michigan, told the justices the goal of promoting diversity on campuses is not a compelling reason to justify giving preferential treatment to minorities.

O'Connor, considered a key swing vote on this issue, said law schools make many choices in picking students, and she wondered aloud why they could not also consider race.

Maureen Mahoney, the college's attorney, said that a diverse student body is a worthy goal. "The education of all students will be enriched," she said.

"That is not a quota," she said, in response to a question from Justice Antonin Scalia.

Said Olson: "They're using stereotypes in an effort, they say, to break down stereotypes."

In a fractured ruling in the case of University of California v. Bakke, the court struck down quota systems but left some room for race to be a factor in university admissions.

Olson, in fact, stopped short of calling on the court to end affirmative action. And O'Connor pressed him on whether the court should uses these cases to ban the use of race.

"We're reluctant to say never," he said.

Justice Clarence Thomas, the court's only black member, broke his customary silence during oral arguments to closely question a university lawyer about whether affirmative action has furthered the broader social goal of racial understanding and harmony.

"Do you think your admissions (policies) at least provided some headwind toward that?" Thomas asked.

Kennedy, another key vote, asked Kolbo if colleges should be concerned when blacks and Hispanics are under-represented, making up a small percentage of students.

"We need to get away from the notion that there's some right number," he responded.

Kennedy said that leaders often look at diversity, adding: "I should think that's a very legitimate concern of the state."

Justice Stephen Breyer said there were arguments that schools should reach out to people of all races, to train minorities to be leaders in law, military, government and other fields.

The court was hearing back-to-back arguments asking how and whether race can be a factor when public colleges and universities choose their students. More broadly, the cases stemming from the University of Michigan's admissions policies ask wrenching legal and constitutional questions about equality, fairness, opportunity and history.

The court's ruling effectively end any state-sponsored affirmative action, or it could rewrite the rules for when race may be a factor in government decisions. The law school, considered in the top 10 in the country, receives about 4,000 applications a year and admits just 350 students.

Scalia said the university, in creating such a hard-access school, set itself up for a situation that would result in racial imbalance.

Michigan's admissions policies have been under fire since 1997, when the university was sued by two whites denied admission to its undergraduate school and a third denied admission to its law school. Each claimed they were passed over in favor of less-qualified minority students.

Applicants for Michigan's undergraduate classes are scored by points, with minorities or some poor applicants receiving a boost of 20 points on a scale of 150. At the law school, admissions officers use a looser formula that tries to ensure each class has a "critical mass" of about 10 percent or 12 percent minority enrollment.

Outside, "the mood seems to be pretty calm, but they are passionate about this subject," said CBS Radio affiliate WTOP's Phyllis Armstrong. "Many of their parents and grandparents marched and protested in order to establish affirmative action in this country."

"There are more blacks in prison than in college. Young America, fight back," the Rev. Jesse Jackson told the crowd.

Many people bore signs and chanted slogans supporting affirmative action. "They say Jim Crow, we say hell no," one group of demonstrators chanted.

Police barricaded the plaza and steps in front of the court, keeping protesters on the sidewalk.

Armstrong reports there were people of all races and all ages outside the Court, protesting in support of affirmative action

The white students who challenged the Michigan policies frame their argument in stark terms: It is not fair for a student to win a coveted place on campus just because he or she is a minority.

"I was treated unfairly because of my skin color," said Jennifer Gratz, a white student rejected by the university and a plaintiff in the case. "Court records show that if I had been black, Hispanic or Native American, I would have had a nearly 100 percent chance of admission with my grades and record."

The cases directly address only admissions at public, tax-supported institutions, but the court's rationale is expected to have a wide ripple through private colleges and universities, other government decision-making and the business world.

The cases are Grutter v. Bollinger, 02-241 and Gratz v. Bollinger 02-516.