Supreme Court takes on race in college admissions
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A treaty-based right to affirmative action is unconstitutionally permissible, a lawyer for three white students who were denied admission to the University of Michigan told the Supreme Court on Tuesday.

During two hours of arguments, justices attempted to sort through one of the most controversial and closely watched debates in the high court's recent history. Some, like Justice Antonin Scalia, appeared deeply embedded in the anti-affirmative camped while others, including Justice Sandra Day O'Connor, considered a swing vote in the two cases at issue, seemed sympathetic to the school's goals of ensuring racial and ethnic diversity.

But only one question about American Indians was asked. And it almost didn't happen because Kirk O. Kolbo, attorney for the white students, was about to hand over arguments to Solicitor General Ted Olson, the Bush administration's top lawyer.

Kolbo's attempt to reserve the rest of his time was interrupted by Justice John Paul Stevens, who wondered whether a promise to ensure the education of Indian students was constitutionally sound.

"If . . . the governor of Michigan many years ago had made a commitment to an Indian tribe to allow three persons into the University of Michigan every year, three tribal members, and nothing else, would that be constitutionally permissible?" he asked.

"I don't believe so Your Honor," responded Kolbo. "Again, it's a distinction drawn on the basis of race."

Stevens based his question on an amicus brief submitted by 11 tribes in Michigan and Wisconsin and an inter-tribal organization representing tribal interests in those states. In the brief, authored by Vanya S. Hogen, daughter of National Indian Gaming Commission Chairman Phil N. Hogen, the tribes cited the 1817 Treaty of Fort Meigs and a state agreement to "educate Native Americans within the state in its public schools, without cost to the federal government."

"Even if the consideration of Native American status were afforded the strictest scrutiny, the university's program would be constitutional," the brief argued.

Kolbo took a hard-line against all race-based considerations. Faced with skeptical questions from O'Connor and Justices Ruth Bader Ginsburg and Stephen G. Breyer, he said governments don't have a "compelling purpose" to use race as a factor.

"There is something special about race in this country," he told the court. "It's why we have a Constitution about it. It's why we have a constitutional amendment."

Olson, whose brief argued that the school's policy was illegal but supported the general goal of diversity in education, called the points program employed by the undergraduate admissions staff a "thinly disguised quota which sets aside a significant portion of each year's entering class for preferred ethnic groups." But he appeared to struggle to explain why the court should disregard the views of retired military officers who submitted a brief favoring affirmative action.

"We haven't examined that and we haven't presented a brief with respect to the specifics of each individual [military] academy," he said.

The university's law school, the subject of Grutter v. Bollinger, the first of the cases heard, was defended by Maureen E. Mahoney. She attempted to rebuff repeated insistences by Scalia that the school, which doesn't use points, was using outlawed quotas but called them a different name.

"Is 2 percent a critical mass? O.K. 4 percent? You have to pick some number, don't you? Like 8, is 8 percent?" he told Mahoney as she tried to interject. "Now, does it stop being a quota because it's somewhere between 8 and 12, but it is a quota if it's 10? I don't understand that reasoning."

"Once you use the term 'critical mass,'" he added, referring to the argument that the school strives to achieve a certain, but not set, number of minority students, "you're into quota land."

John Payton represented the school in Gratz v. Bollinger, the undergraduate case. His arguments elicited some of the few comments from Justice Clarence Thomas, the court's only African-American member who almost never speaks up during arguments.

"Do you think that your admissions standards overall at least provide some headwind to the efforts that you're taking about?" he asked, citing Payton's argument that affirmative action policies "bring us together . . . bring us understanding [and] result in tolerance."

A decision in the two cases is expected by July.

Oral Arguments:
MP3: Excerpt | Transcript: Grutter v. Bollinger | Transcript: Gratz v. Bollinger | Real Audio: Both Hearings

Amicus Briefs:
Tribes in Michigan and Wisconsin | U-Mich minority student law associations | New Mexico minority bar associations

Relevant Documents:
Supreme Court Docket Sheet No. 02-241 | Brief: Grutter | Brief: University of Michigan | Brief: Department of Justice

Holdings Below:
Appeals Court: GRUTTER v. BOLLINGER, No. 01-1447, 01-1516 (May 14, 2002) | District Court: GRUTTER v. BOLLINGER (March 27, 2001)

Relevant Links:
University of Michigan, Admissions site -
Center for Individual Rights -

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