AFFIRMATIVE ACTION! UPI starts a four part series on the coming court decision.
Affirmative action ruling soon -- Part1
By Les Kjos
From the National Desk
Published 5/1/2003 4:30 PM
(This is the first of a four-part series)
Sometime before the U.S. Supreme Court recesses in late June or early July it is expected to rule on whether the University of Michigan's affirmative action plan is constitutional.
The ruling is not likely to be clear cut. As Ward Connerly, one of affirmative action's most ferocious opponents, puts it, "This is a nuanced issue."
In addition, legal scholars say blanket, definite rulings by the high court are unusual, and something that looks more like a compromise is likely.
Philip Pucillo, assistant professor at the Ave Maria School of Law in Ann Arbor, Mich., expects Justice Sandra Day O'Connor to be the key, a view shared almost universally.
"My view from the beginning was that the Michigan policy is going to fall, but I don't think they will rule out the ability to consider race," Pucillo said.
He said the majority will vote to strike the two policies -- one for undergraduates and one for law school students -- but they won't have a majority that says race can't be considered, and that's because of O'Connor.
"She will say this is something colleges and universities can do, but Michigan took it too far. It's the functional equivalent of quota," he said.
Others say Justice Anthony Kennedy indicated during the hearing he might favor criteria that applies to blacks, Hispanics and whites equally. That could tend to support O'Connor's position.
Such a ruling would leave subtler ways of encouraging diversity, which is what nearly all colleges and universities say they must have.
It could leave the door open for such policies as admitting the first member of a family to attend college. Florida, Texas and California already have plans to admit a certain percentage of the top students from the senior class of each high school in the state.
The University of Michigan plan is more direct. It gives minority applicants as much as a 20-point bonus on a 150-point evaluation scale.
President Bush has taken a position against the University of Michigan, but favorable to other means of encouraging diversity.
In oral arguments, Solicitor General Theodore Olson said admissions policies at Michigan constitute a quota system, and that was struck down in the other affirmative action landmark, the 1978 Allan Bakke decision.
"The Michigan Law School admissions policy fails every test this court has established," Olson said. "Number 1, it's a thinly disguised quota. Number 2 it overtly employs stigmatizing characteristics."
Washington attorney Carolyn Mahoney, representing the Michigan undergraduate program, argued it was not a quota system because there was no fixed percentage of minorities to be admitted to the school.
That appears to be in line with the Bakke decision. Bakke, a non-Hispanic white, was denied admission to the Medical School at the University of California at Davis.
The court ruled with a plurality in that case that the affirmative action admissions policy was an illegal quota system, but allowed the use of race as a plus factor in college admissions.
Seventeen years later, Connerly, who is a black University of California regent, generated a vote by the regents that eliminated affirmative action in state universities. The next year he pushed through proposition 209, extending the ban to businesses.
The University of Michigan suit was filed on behalf of Patrick Hammacher, who found his 3.3 high school grade point average wasn't enough to get him into Michigan in 1996; Jennifer Gratz, who was turned down a year earlier; and Barbara Grutter, refused admission to the Michigan law school in 1997.
They had answered a call issued at a press conference by philosophy professor Carl Cohen and state Rep. Debra Whyman. Cohen and Whyman urged anyone who thought they had been rejected unfairly to step forward.
They were then sent to the Center for Individual Rights, which has handled conservative legal cases since 1989, for the appeal to the Supreme Court.
More than 30 corporations -- including some of the biggest in the nation -- filed briefs supporting the University of Michigan. So have the four military academies that insist diversity is essential to the nation's officer corps.
Twenty-two states also filed a brief supporting the university.
The NAACP also supports the university and affirmative action.
"Affirmative action has always been seen as a lawful means of remedying present and past discrimination," said Kweise Mfume, president of the organization.
"It is still the right thing to do to level the playing field and a proven way to increase diversity," he said.
But the American Defamation League is on the other side. The militant Jewish organization said the university "violates this country's core constitutional precepts."
Florida Gov. Jeb Bush, the president's younger brother, also opposes affirmative action, saying the Florida's percentage plan was working. That plan, however, faces strong opposition, particularly among the state's blacks who say it has not promoted racial diversity in all of the states colleges and universities.
Rep. Kendrick Meek, D-Fla., staged a sit-in against the Florida percentage plan when it was adopted. The black congressman also intends to use affirmative action against the governor's brother during President Bush's 2004 re-election campaign.
In short, the Supreme Court decision on affirmative action is not likely to end the deep division that exists in the country. The dialogue will continue.
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Part one of four. Next: Ward Connerly, leading the fight
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