O'Connor could sway court in aff. action case

With the future of affirmative action hanging in the balance, the weight of the decision is likely to fall on the shoulders of one woman.

U.S. Supreme Court Justice Sandra Day O'Connor is widely deemed to be the one undecided vote on the panel of nine justices in the nation's highest court.

The two cases, Grutter v. Bollinger and Gratz v. Bollinger, involve the University of Michigan's use of race as a factor in admissions. The plaintiffs, three white applicants who were denied admission to Michigan's undergraduate college and law school, brought suit under the Civil Rights Act of 1964, claiming that their 14th Amendment right to equal protection under the law had been violated.

The cases were heard in Washington, D.C., on April 1, and the court is expected to hand down a ruling in July.

It is widely predicted that the ruling will come down 5-4, but experts cease to agree on which direction the verdict will fall.

O'Connor "doesn't generally favor sweeping statements," Penn Law Professor Kermit Roosevelt said. "She likes to write opinions narrowly and, as a result, is hard to predict."

Roosevelt and others point to many of O'Connor's prior Supreme Court opinions as indicators of how she might rule, but each case can be extrapolated in various ways.

Two of the most commonly cited recent Supreme Court cases dealing with affirmative action, City of Richmond v. J.A. Croson Company and Adarand Constructors, Inc. v. Pena, from 1989 and 1995, respectively, concern programs in federal employment practices.

In both instances, O'Connor wrote an opinion that stated that diversity is not a compelling interest in employment, and any program using race as a factor must pass a standard known as strict judicial scrutiny.

Strict scrutiny means two things -- that the program must promote a compelling government interest and that the program must be "narrowly tailored."

The question that remains is whether education is a context in which diversity is a compelling government interest.

In 1978, the court, in an opinion written by Justice Lewis Powell, held in the case Regents of the University of California v. Bakke that diversity is a compelling interest under strict scrutiny.

Villanova Law Professor Greg Magarian believes that O'Connor will concede some to both sides.

"I think she will reaffirm the Bakke holding that diversity in some cases counts as a compelling interest," he said. "In doing that, she will include some language to narrow the scope of affirmative action programs."

"The educational context appears to be different from the public contracting context found in Croson and Adarand," Magarian added.

Penn Law Professor Nate Persily concurred that O'Connor probably will not strike down affirmative action programs altogether, but was skeptical about the possibility of her upholding either of the Michigan plans. He pointed to the undergraduate plan, which uses a point system and grants extra points to underrepresented minority candidates, as particularly unlikely to withstand scrutiny from the court.

"My guess is that she will vote to strike down both plans but leave the door open for future affirmative action programs," he said.

Roosevelt, a former clerk to Justice David Souter, disagrees about the future of affirmative action programs. He believes that the likely outcome will be a 5-4 decision against Michigan's policy but goes farther to say that he does not believe the court will leave room for any affirmative action policies in higher education in the future.

Along with Croson and Adarand, Roosevelt cites the Metro Broadcasting, Inc. v. FCC case in which O'Connor wrote a dissenting opinion declaring race a non-factor in hiring radio broadcasters.

"She seems very hostile to the idea that race can be used as a proxy for viewpoint," he said. "I don't think that schools are different from radio stations" in terms of diversity as a compelling interest.

However she rules, it is likely that O'Connor, as the "swing vote," will write the opinion for the majority.

"O'Connor is the one who is always writing the race cases," Magarian said. "Whether it is voting redistricting or affirmative action or voting rights, even criminal cases that have strong racial currents or overtones, you've got a strongly polarized court."

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