Thousands of protesters gathered outside the court ahead of the arguments, many in support of the affirmative action policies being challenged by white applicants to the University of Michigan’s law and undergraduate programs who feel they were rejected because of the school’s use of race as a factor in admission.
All nine justices closely questioned lawyers during the sessions, including Justice Clarence Thomas who is often silent during oral arguments. Justice Thomas, the court’s only African American member, asked a university lawyer whether affirmative action has furthered the social goal of promoting racial harmony.
“Do you think your admissions [policies] at least provided some headwind toward that?” Thomas asked.
Other justices hammered at whether such policies are, as U.S. Solicitor General Theodore Olson claimed, merely “thinly disguised” racial quotas that were outlawed in a 1978 Supreme Court decision on affirmative action in education.
But when Justice Sandra Day O’Connor, considered a key swing vote on the debate, pressed Olson as to whether the court should completely ban race as a factor of admission he replied, “We’re reluctant to say never.”
President Bush weighed in on the affirmative action debate in January, calling the University of Michigan’s law school program to encourage minority acceptances at the college “fundamentally flawed” and unconstitutional.
Justice Anthony Kennedy, considered another swing vote, called the need for diversity a “legitimate concern” of the state.
The law school case concerns Barbara Grutter, who applied for admission to the University of Michigan’s program in 1996. Grutter, who is white, was first placed on a waiting list and then rejected by the school despite what she considered strong qualifications.
Grutter later filed a class action lawsuit in a Michigan district court on behalf of herself and others who were denied admissions due to the law school’s policy of using race as a criterion for academic admissions.
“I think that I was discriminated against in the admission process, very specifically, because I believe they have different criteria based on race,” Grutter told the NewsHour in an interview aired in December.
The second case involves a similar claim against the University of Michigan’s undergraduate program that was first filed by Jennifer Gratz, a white student who contended that she was rejected from the university in 1995 while less qualified minority applicants were granted admission.
Gratz brought suit against the University of Michigan in 1997and her lawyers say they have proved that she would have been admitted had she been a minority.
For its part, the University of Michigan has vigorously defended its affirmative action policies. University President Mary Sue Coleman said in a February speech that a “broad and deep consensus” exists among the nation’s institutions of higher education that “our ability to be strong relies on our ability to seek diversity.'”
The high court took the unusual step of immediately releasing audio recordings of the argument sessions, most likely due to the high amount of public attention the cases have garnered.
The Reverend Jesse Jackson was among the pro-affirmative action protestors gathered outside of the high court’s building in Washington, D.C. Jackson attended the court’s arguments, as did members of Congress including Sen. Ted Kennedy (D- Mass.) and top Justice Department officials.
“There are more blacks in prison than in college. Young America, fight back,” Jackson said.
Protesters toted signs and chanted slogans in support of affirmative action. “They say Jim Crow, we say hell no,” one group of demonstrators chanted according to an Associated Press report.
Hundreds of organizations filed briefs both in support of and against the University of Michigan’s policy, signaling the expectation that the Supreme Court’s decision on the cases will have long-reaching effects on the role of similar affirmative action programs in schools around the country.
The last time the Supreme Court ruled on affirmative action in education was in 1978 when Allan Bakke, a white applicant, sued the University of California at Davis’ medical school after he was rejected. The high court concluded that the university’s policy of specifically designating 16 of the 100 slots for the incoming class for minority students was unconstitutional because it constituted a quota.
The Supreme Court’s ruling on the Bakke case did not completely dismiss race-based admissions policies in their decision. Five of the justices found that while the university’s quota system was unconstitutional, it was lawful to take race into account in university admissions.