The fate of the legal use of race as a factor in college admissions is now in the hands of the United States Supreme Court after oral arguments were heard in both cases against the University of Michigan on Tuesday.
By the end of the two hours of oral arguments, it appeared that the justices would preserve the use of race as a "plus factor" in admissions, but it remained unclear whether the specific system at the University of Michigan would hold up, according to a New York Times report.
In the law school case the justices focused heavily on the importance of race within the military and its academies. Some of the justices cited an amicus curiae brief filed on behalf of retired military officers who said that there is no way to have an officer corps that includes a significant number of non-white members other than to give "a plus for race."
They seemed worried that a ruling against Michigan might carry with it adverse ramifications within the military, including a decrease in non-white officers if the military academies were no longer to use race as a factor in admissions. Of the 102 briefs filed in the case, this one received the most discussion.
At one point Justice Ruth Bader Ginsburg asked Solicitor General Theodore Olson, "but you recognize, General Olson, that here and now, all of the military academies do have race preference programs in admissions? Is that illegal, what they're doing?"
However, the justices' questions were not tough on the petitioners alone. The respondents were also grilled about the use of "disguised quotas," as Justice Anthony Kennedy described them.
"It's standard practice for Justices to ask difficult questions to both sides to probe and test the lawyers," Dartmouth General Counsel Bob Donin said.
In the two cases against the University of Michigan, one against the undergraduate school and one against the law school, white applicants allege that the school's point-based admissions system violates the equal protection guaranteed them by the Constitution.
Late in the second hour of the case a turning point was reached. Justice Kennedy asked John Payton, lawyer for the undergraduate admissions program, what the university would do to insure diversity if the court invalidated its affirmative action plan. He asked Payton whether it would be the court's job to come up with an alternative or whether it would be up to the university to devise "some other system, say, more individualized assessment in order to attain some of the goals you wish to attain?"
In his careful word choice utilizing the phrase "individualized assessment" in lieu of the alternative "race-neutral alternative" as proposed by the lawyer suing Michigan and by the Bush administration, Kennedy may have given a breath of life to the future use of race as a factor in admissions. An individualized assessment implicitly permits the use of race as a factor in an admissions decision, where as a race-neutral approach would not.
Earlier, during the law case, Michigan lawyer Maureen Mahoney, who was a law clerk for Chief Justice William Rehnquist when he was an associate justice, appeared to hold her own, withstanding a rapid series of question from Justice Antonin Scalia, who said he could not take Michigan's position seriously because the "problem is a problem of Michigan's own creation."
"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, not have a flagship elite law school, it solves the problem," he said.
Mahoney responded in form, however, retorting "Your Honor, I don't think there's anything in this Court's cases that suggests that the law school has to make an election between academic excellence and racial diversity."
After Mahoney had finished her arguments, Kirk Kolbo, the lawyer handling the case against the law school, presented his final argument.
"The University of Michigan sees this as a question of group rights," Kolbo said. "There are rights on the part of minorities. And there are rights on the part of whites -- and Asians and other groups ...The Constitution protects the rights of individuals, not racial groups."
Immediately after the arguments were heard, the justices convened privately to take an initial "straw vote," according to Donin. Based on that vote the majority and dissenting groups will be formed, and the author of the opinions will be chosen. "Sometimes in the course of drafting the opinions," Donin said, a justice's opinion could change.
The decision could be released anytime before early July when the court's term ends.
