Editor's Note: This is the first in a series of articles that will examine the affirmative action debate from an insider's perspective.
In front of her sit nine intimidating robed figures. They listen attentively, but question every word she says, not hesitating to drill her with probing, hard-hitting interrogations. But attorney Maureen Mahoney, defending the University of Michigan law school in a case that currently sits before the Supreme Court, is not frightened.
Mahoney is the mother of Brad Crispin '05. She has argued 12 cases in front of the country's High Court and currently sports a 10-1 record with the Michigan case still pending.
"It is really stressful," Mahoney admitted. "But what is more stressful is the preparation. Once I am standing there, I find it's a fairly intimate experience. The idea is to have a conversation with the justices."
On April 1, the Supreme Court heard oral arguments in both the law school and undergraduate cases, which are now under review by the justices. The pending decision is expected sometime in June, Mahoney said.
In the two cases against Michigan, white applicants allege that the school's admissions system violates the equal protection guaranteed them by the Constitution. In the undergraduate case, the students allege they were denied admission in favor of less-qualified minority students because of a points-based admissions system, while in the case against the law school, students charge that the admissions office was aiming to fill an illegal percent quota for minorities.
Based on the outcome, the use of race as a factor in higher education admissions decisions is at stake. However, Mahoney noted that Supreme Court decisions are rarely cut and dry and are frequently heavily nuanced. She proposed just some of the possible decisions and the implications they would have, including the racial mix of most universities and even the future of admissions to higher education.
The decision most feared by those associated with Michigan and other affirmative action supporters would be a flat-out ruling against the schools, which would have the effect of making it illegal for schools to "take race into account at all," Mahoney said.
"If that happens then every selective school in the country will have a different admissions process," Mahoney said. "The 2004 freshman class make-up would look very different. At most selective schools, minority enrollment would decrease by 50 to 75 percent, and the more selective the institution, the greater the impact."
However, Mahoney pointed out that the minority drop-off would not be limited to the undergraduate sphere.
"It would carry through," Mahoney said. "We would have fewer minorities in selective graduate schools, and fewer in the professions, because the elite schools are feeders. The practical effects on American society would be a change in the country's leadership structure."
Though Mahoney would not say on which side she thought the court would rule while the case remained under consideration, she did mention another possibility that many law analysts have described as likely.
"They could say that you can take race into account. The way the law school did [it] is permissible, but the undergraduate is not," Mahoney said. "In that case, Dartmouth, for instance, would likely not be affected."
Earlier Supreme Court precedent on affirmative action comes from the 1979 decision in Regents of University of California v. Bakke.
In the Bakke case, the Court ruled against the admission system at the University of California's at Davis Medical School on the grounds that its allocation of 16 of 100 entering places for non-white students was unlawful. However, Justice Lewis Powell submitted the tie-breaking vote and held in his decision that colleges could consider race as one factor alongside others in admissions decisions.
"They could say that Justice Powell got it right in the Bakke decision," Mahoney said, noting that it would be possible for the Michigan ruling to simply mirror and reaffirm the 1979 ruling. "Or they could forge a 21st century Bakke decision," which could allow the use of race in any number of limited or wide-open forms.
An example of such a decision, according to Mahoney, would be to re-evaluate race as a factor in admissions decisions, instead allowing it to be used only as a tiebreaker and under no other circumstances, which "wouldn't make sense for most schools," according to Mahoney.
In February, Dartmouth filed a joint amicus curiae, or friend of the court brief, in support of Michigan in the two cases, in conjunction with seven other prestigious universities.
Mahoney said that Dartmouth's brief and other similar briefs filed by institutions of higher education had a significant impact.
"Briefs are very important," Mahoney said. "The Dartmouth brief and others from educational institutions showed that this is not about Michigan really; it's about education throughout the U.S."
However, briefs were submitted on both sides of the case. In fact, in January the U.S. Justice Department submitted a brief on behalf of President Bush. In the brief, Bush contended that alternative "race-neutral" methods of increasing diversity on campus could be used that were not racially determined and that a ruling against the law school would not necessarily precipitate the overturning of the Bakke ruling.
One such "race-neutral" policy which has been used by the state school systems in California, Texas and Florida, is the so-called "percentage plan," which guarantees admission to state universities to the top percentage of students in each state high school.
Mahoney criticized such plans, claiming that no plan that was actually race-neutral could be used effectively to increase racial diversity.
"Why rely on segregation in high schools instead of just taking diversity into account directly during the admissions process?" Mahoney asked.
However, it was in a response to a pointed question by Justice Antonin Scalia during the oral arguments that Mahoney really got to the "core of the case," she said. She contended that a school should not have to "make an election between academic excellence and racial diversity."
"Justice Scalia is correct," she said, referring to his initial question. "Schools could achieve diversity if they abandoned their academic standards [or] you could make admissions a lottery. But the idea of dismantling higher education because you can't have excellence with diversity is the wrong approach."
But now her job is done. She has done all she can do to make an impression on the justices, and now, like everyone else waiting anxiously for the decision to come, it is out of her hands. The ruling could come at any time before the court goes out of session in early July, but is expected sometime in mid-June.
