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RAY SUAREZ: The narrow question before the justices was whether race can be used at the University of Michigan and its law school as a factor to admit students in order to promote diversity.
Under Michigan’s policies, prospective undergraduates are awarded points for a wide variety of factors, academic and personal, including for being African American, Hispanic, or Native American. These points are often the decisive factor in admission.
At the law school, special preferences had been given to minority students since 1992. Two white women — one rejected by the law school, one rejected by the college — sued the university. They said these admission practices violated their equal protection rights under the Constitution. For only the second time in the history of the court, today’s argument was released on audio tape. The last time was when Bush V. Gore was heard.
To help us sort through the argument, we hear from NewsHour regular Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune.
And I guess anybody approaching the court today, Jan, knew that today was a special day.
JAN CRAWFORD GREENBURG: Well, that’s right, Ray. This case is widely considered the most important affirmative action case that the court has taken up in a generation, and the mood inside the courtroom and outside the courtroom reflected those high stakes.
Thousands of demonstrators gathered out in front of the courtroom protesting any kind of ban on affirmative action. Inside, senators, government officials took coveted seats with the spectators, who began camping out for a seat last Friday.
JAN CRAWFORD GREENBURG: This case deeply divided the justices, as many cases do involving questions of race. And as we saw today, when the justices are so narrowly divided, all eyes will generally turn to Justice Sandra Day O’Connor, the moderate, the swing vote that we like to call her. And today, in the arguments, she got the ball rolling, and jumped right in with the first question, asking an attorney attacking these programs why they were or were not unconstitutional.
JUSTICE SANDRA DAY O’CONNOR: A university, or a law school, is faced with a serious problem when it’s one that get thousands of applications for just a few slots, where it has to be selective. And inherent in that setting is making choices about what students to admit.
So you have an element here that suggests that there are many reasons why a particular student would be admitted or not, and a lot of factors go into it. So how do you single this out, and how are we certain that there’s an injury to your client that she wouldn’t have experienced for other reasons?
KIRK KOLBO, Attorney for the rejected students: Well, Your Honor, first of all, race is impermissible because of the constitutional command of equality. The university is certainly free to make many different kinds of choices in selecting students and to look for all kinds of different diversity — experiential diversity, perspective diversity — without regard to race.
But race, because, Your Honor, of the constitutional command of equality, must be beyond the bounds.
RAY SUAREZ: It sounded like the justices wanted to hear from the attorneys when race is okay to be in there, when it’s not okay to be in there, and what factors are admissible for admission.
JAN CRAWFORD GREENBURG: That’s exactly right.
The last time the Supreme Court took up this issue was in 1978, and then it said strict quotas are unconstitutional; that schools cannot set aside a certain number of seats for minorities. But it left the door open for schools to consider race as one of many factors in getting a diverse student body.
Lower courts have split on that, and so that was really at the heart of the argument today: When race could be taken into account, if it could be taken into account, or, as opponents suggest, whether or not there are other ways to achieve diversity, more race-neutral ways.
RAY SUAREZ: And again, attorney Kirk Kolbo for the rejected students, quizzed here by Justice David Souter.
JUSTICE DAVID SOUTER: Do you believe that that would be an adequate at least means of experimenting? As an alternative?
KIRK KOLBO: Taking race-neutral alternatives into consideration?
JUSTICE DAVID SOUTER: Well, taking, for example, economic disadvantage.
KIRK KOLBO: Yes, Your Honor. I think…
JUSTICE DAVID SOUTER: Do you seriously believe that that would be anything but a surrogate for race? It would take the word “race” out of the categorization, out of the label that we put on it, but do you believe it would function in a different way, but as a surreptitious approach?
KIRK KOLBO: It certainly can function differently, Your Honor. Race-neutral alternatives…
JUSTICE DAVID SOUTER: Do you think it would?
KIRK KOLBO: Yes.
JUSTICE DAVID SOUTER: Is there any reason to believe that it would?
KIRK KOLBO: I do, Your Honor, because it’s not just minorities that are socio-economically disadvantaged in this country. That happens with respect… across racial lines. So race-neutral alternatives…
JUSTICE DAVID SOUTER: But the object, I would have assumed, given the dialogue, the object is to increase the racial number, the percentage of minorities. If that is the object, then whatever it is, it’s not a race- neutral measure.
KIRK KOLBO: Well, I would disagree, Your Honor, because I think if you have a race-neutral means, it accomplishes many purposes, and one of them is race, that is not necessarily, under this court’s precedent, unconstitutional.
RAY SUAREZ: Also, besides the attorney arguing for the rejected students was the president’s lawyer, the government’s lawyer, Solicitor General Ted Olson.
JAN CRAWFORD GREENBURG: That’s right. The Bush administration has weighed in on this case. It says that diversity, of course, is a very important and compelling reason; that we need diverse educational opportunities for students, but that there are other ways to get there. We can take race off the table, because there are these other race-neutral alternatives.
The Bush administration flagged that point early on, and it took up much of the argument today.
RAY SUAREZ: Here’s Solicitor General Ted Olson and Justice Stephen Breyer.
JUSTICE STEPHEN BREYER: The reason for it is, they want to produce a diverse class. And the reason they want to do that, using it as a plus, they say, is to do the things I said before.
They think it breaks down stereotypes within the class. They think it’s educationally beneficial. They think it supplies a legal profession that will be diverse, and they think a legal profession– like business and the military– that is diverse is good for America.
From a civics point of view, it sets or breaks the cycle. All right, those are the arguments, which you well know.
So what is your response?
THEODORE OLSON, Solicitor General: Well, a response to those many arguments is that they’re using stereotypes in an effort, they say, to break down stereotypes.
They’re using race as a surrogate for experience. And if they want to look at experience, they can look at experience. If they want to improve the educational opportunities of minority groups, one of the biggest….
JUSTICE STEPHEN BREYER: That’s not what they say. They say they’re not using race as a surrogate for anything, because if you have a person who went to Exeter who is very rich and happens to be black and is a conservative Republican, it’s great for the class to know that, too.
RAY SUAREZ: Justice Antonin Scalia zeroed in on Attorney Maureen Mahoney, trying to get from her “for instances.” And he was using theoretical cases — well, what happened if we did this, what happened if we did that? There was one very interesting exchange.
JAN CRAWFORD GREENBURG: Scalia was very active in arguments today, and really tipped his hand that he thinks these programs are unconstitutional.
That’s no surprise. He’s been very suspicious of the use of race. He suggested during the argument that, in some ways, these were problems of Michigan’s own making, because it decided it wanted to be an elite flagship institution, suggesting that it could lower its academic standards to get a more diverse student body.
RAY SUAREZ: Justice Antonin Scalia and Maureen Mahoney.
JUSTICE ANTONIN SCALIA: The problem is a problem of Michigan’s own creation. That is to say, it has decided to create an elite law school. It is one of the best law schools in the country. There are few state law schools that get to that level.
Now, it’s done this by taking only the best students with the best grades and the best SAT’s or LSAT’s, knowing that the result of this will be to exclude, to a large degree, minorities. It is… it’s not unconstitutional to do that, because that’s not the purpose of what Michigan did, but it is the predictable result. Nonetheless, Michigan says “We want an elite law school.”
Now, having created this situation by making that decision, it then turns around and says, “oh, we have a compelling state interest in eliminating this racial imbalance that we ourselves have created.”
Now, if Michigan really cares enough about that racial imbalance, why doesn’t it do as many other state law schools do? Lower the standards, and not have a flagship elite law school. It solves the problem.
MAUREEN MAHONEY: Your honor, I don’t think there’s anything in this court’s case that suggests that the law school has to make an election between academic excellence and racial diversity.
RAY SUAREZ: Hasn’t Michigan maintained that what it has is not a quota, but a target to create critical mass in the student body? That seemed to get a lot of attention from the justices.
JAN CRAWFORD GREENBURG: The Michigan officials have maintained from the beginning that these are not quotas. And in fact, the Supreme Court struck down quotas in 1978.
These were adopted in response to that decision. They argue that these are just an important way of getting a diverse student body by looking at a number of factors in the law school, for example, and then, at the undergraduate institution, awarding points based on a number, again, of factors. So the school maintains adamantly that these are not quotas.
The justices, however — at least some of them — suggested that they saw it quite differently, including Justice Anthony Kennedy. Anthony Kennedy suggested that this might actually be a disguised quota.
RAY SUAREZ: Here’s Justice Kennedy with Attorney John Payton.
JOHN PAYTON: The benefits from this affect every single student that comes through, and they’re dependent on there being meaningful numbers or critical mass of minority students, or the benefits don’t come about.
JUSTICE ANTHONY KENNEDY: All of the eloquent things you said could easily be met by a quota. That — let’s just assume for argument — we cannot do. I have to say that in looking at your program, it looks to me like this is just a disguised quota. If you’re minimally qualified and you’re one of the minority races that gets the 20 points, you’re in.
RAY SUAREZ: A lot of amici filed in this one. Didn’t this get a tremendous amount of attention?
JAN CRAWFORD GREENBURG: An unbelievable amount. More than 70 different organizations have weighed in with friend — you know –of the court briefs in this case illustrating the significance of the court’s ruling — this goes well beyond the University of Michigan, well beyond public universities and into private universities, and of course into the public sector. And business groups have weighed in, saying that they believe diversity is important.
A brief that got a lot of attention today was filed by retired military officers who have said that diversity and the consideration of race is an important factor for the service academies. The Justices expressed much concern about how their ruling would affect the very composition of the military leadership. So today’s case goes well beyond Michigan, the state of Michigan, the University of Michigan, and could affect, as the lawyers so eloquently put it today, the use of race in a number of contexts, and in society in general.
RAY SUAREZ: Jan Crawford Greenburg, thanks for coming by.
JAN CRAWFORD GREENBURG: You’re welcome, Ray.