The U.S. Supreme Court is set to hear oral arguments today on an issue that could have wide-ranging effects on college and university campuses across the country.
The two cases set for argument, Gratz v. Bollinger and Grutter v. Bollinger, are expected to define how race can be used as a factor in the college admissions process.
The specific issue at hand is whether the system that the University of Michigan uses in its undergraduate and law school admissions processes -- a point system in which applicants receive points for being a minority and need a specific total number of points to be accepted -- violates the equal protection clause of the 14th Amendment.
According to Penn Law Professor David Rudovsky, supporters of affirmative action will argue that diversity is such a necessary part of life that the government must do what it can to promote it, and opponents will argue the opposite.
Proponents assert that "consideration of race is not totally barred by the Constitution and that diversity is a compelling governmental interest," Rudovsky said. "And the other side will argue that there are other ways of achieving this end without using race and that diversity is not a compelling enough need to trump the 14th Amendment of the Constitution."
The court is reviewing its previous landmark decision in the case, Regents of the University of California v. Bakke, in which, by a 5-4 decision, it declared race a legitimate factor in the admissions process, but denied the constitutionality of the use of quotas in admissions.
Many Supreme Court scholars believe that the outcome in this case will again be 5-4 either for or against affirmative action and that the deciding vote will be that of Justice Sandra Day O'Connor.
"Reading some prior opinions of [Stephen] Breyer, [Ruth Bader] Ginsburg, [David] Souter and [John Paul] Stevens, many think that those four would agree with the Bakke decision and be in favor of using race as a factor," Rudovsky said.
As for Chief Justice William "Rehnquist and [Justices Antonin] Scalia and [Clarence] Thomas, I think everybody thinks they're going to be in favor of a race-neutral policy except where you can show past discrimination, which isn't the issue here. Kennedy, perhaps to a lesser extent, is probably in that camp as well," he continued.
So that leaves O'Connor, who is notoriously hard to predict.
Penn Law Professor Kermit Roosevelt agreed with Rudovsky's predictions and cautioned against attempting to forecast exactly what the court, and, specifically, O'Connor, will do.
"She is very hard to predict. She is very sensitive to fact," the former clerk to Justice Souter said.
But, "given Justice O'Connor's past opinions dealing with strict scrutiny, my guess is that this ruling is going to be 5-4," for the complainant, against affirmative action, he explained.
Whether this will mean the end of using race as a factor in admissions at universities or just the end of Michigan's point system remains to be seen. Roosevelt does not expect the Supreme Court to draw a distinction between varying degrees of the use of race -- which he called "plus factors" -- but instead, thinks it will either allow or prohibit the use of race entirely.
"Justice [Lewis] Powell [in Bakke] tried to draw a distinction between quotas and 'plus factors,' but to do that between large and small 'plus factors' is even more difficult," he said.
The format for today's arguments will be slightly different than usual. Generally, arguments take place for 40 minutes, 20 per side. But since the scope of this case is so large, the format has been changed. U.S. Solicitor General Theodore Olson will argue for 10 minutes, the petitioners will argue for 20 minutes and the respondents will get 30 minutes.
As the lawyers and justices battle it out today in the courtroom, thousands of people from around the country are expected to travel to Washington, D.C., to protest for and against affirmative action in front of the Supreme Court building.
Penn's campus groups have not been silent on the issue, either. Several are sending buses of protesters to D.C. today, and yesterday, the Penn College Republicans held an "Affirmative Action Bake Sale" in which they charged different prices to different ethnicities in order make the point that treating minorities differently is not fair to everyone.
