Taking supreme action: Michigan proceedings offer some hope that the U.S. Supreme Court will affirm the use of race in academic admissions, say affirmative action proponents. But critics are more skeptical - Affirmative Action Watch - University of Michigan affirmative action case

Black Issues in Higher Education, April 24, 2003 by Ronald Roach

WASHINGTON

Following the oral arguments heard by the U.S. Supreme Court in the University of Michigan cases earlier this month, affirmative action proponents say the proceedings offered some hope that the court will affirm the use of race in academic admissions.

Reaction to the oral arguments largely focused on the questions and comments of Supreme Court Justice Sandra Day O'Connor given that analysts say her stance on the constitutionality of affirmative action plans at the University of Michigan will prove pivotal to the outcome.

"I think that the government's argument [that race shouldn't be considered in admissions] is too extreme for the court," said Columbia University president Lee Bollinger during a luncheon speech at the National Press Club in Washington, D.C. on April 2.

Bollinger, who was president of the University of Michigan when it was sued for failing to admit three White students, says he's confident the court will uphold the university's affirmative action policies. He believes the court will be convinced that race should be considered in order to improve a university's social and educational atmosphere.

"We think that this is the way that America will be stronger," Bollinger said. "The people who have learned in this environment will be better able to cross boundaries in society that exist to this day."

As an example of her openness towards affirmative action, legal analysts have pointed to O'Connor's question asking plaintiff attorney Kirk Kolbo how being White caused a plaintiff to be denied admission to the University of Michigan. When the lawyer said that race could never be used as a factor, O'Connor responded, "You have some precedents out there that you have to come to grips with." Later, she added, "You are speaking in absolutes and it isn't quite that. I think we have given recognition to the use of race in a variety of settings."

Ted Shaw, the associate director and counsel of the NAACP Legal Defense and Education Fund, attended the oral arguments session and came away from it "cautiously optimistic" that the court would preserve the use of race in higher education admissions. Shaw led the LDF's team of attorneys that represented 17 African-American and Latino student-intervenors in the Michigan case. The Supreme Court denied the students' request for argument time, according to Shaw.

"Justice O'Connor's comments indicated that she didn't have an absolutist approach to race," Shaw told Black Issues.

Shaw notes that had the justices allowed oral argument time for the minority student-intervenors the session would have had some focus on the historical origins of affirmative action. "What's really at stake here is higher education opportunities for African American and Latino students. I think it's a tragedy that those students were not allowed to have their voices heard in this case," he adds.

Spencer Overton, a law professor at George Washington University in Washington, D.C., says O'Connor's statements suggest she may be open to preserving the use of race, though possibly in a more limited fashion than was allowed by the University of Michigan in its undergraduate and law school admissions.

"I think the arguments went as well as it could have gone for those in favor of affirmative action," Overton says. "It really comes down to O'Connor. She seems to be open to considering diversity as a compelling state interest."

Legal experts have pinpointed O'Connor as the swing vote in the University of Michigan cases. It is said that Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens are likely to role in favor of the University of Michigan. On the other side, Justices Clarence Thomas, Antonin Scalia, William Rehnquist, and Anthony Kennedy are expected to strike down the Michigan plans, and seek to bar the use of race-conscious affirmative action in American life.

"It seems to me [O'Connor's] going to be uncomfortable with saying an institution can never use race. She may put some limits on that use," Overton says.

The last time the court visited the issue was 25 years ago, in University of California v. Bakke. That fractured ruling struck down quota systems but left some room for race to be a factor in university admissions.

Conservative scholar and activist Dr. Thomas Wood has written that he believes O'Connor is likely to decide against the University of Michigan, but that the court is unlikely to issue a ruling "that sweeps away all attention to race." Wood is one of the co-authors of Proposition 209 that resulted in the banning of affirmative action in California.

"O'Connor is troubled by the fact that there is no terminus or end-zone for classificatory schemes like U-Michigan's that are supported by the diversity rationale. Kolbo was very shrewd to press this point in his closing remarks. O'Connor's worries on this score should be a major concern to the supporters of preferences," according to Wood.

An opponent of race-conscious affirmative action, Curt Levey, the director of legal and public affairs at the Center for Individual Rights in Washington, D.C., says the oral arguments went "as well as expected." The Center for Individual Rights is the nonprofit law firm that has represented the Michigan plaintiffs.