WASHINGTON, D.C. -- Arguments for cases that could have far-reaching effects on race relations, college admissions practices and even employment standards across the country took audible form yesterday in front of the U.S. Supreme Court.
Grutter v. Bollinger and Gratz v. Bollinger -- the two cases that specifically pertain to whether universities can consider race as a factor in admissions -- were heard yesterday in Washington, D.C., in front of the justices and a packed Supreme Court chamber.
The petitioners, Barbara Grutter, Jennifer Gratz and Patrick Hamacher, were unsuccessful white applicants to the University of Michigan who have challenged the school's admissions policies. Both Michigan's undergraduate and law school admissions processes give special consideration to black, Latino and Native American applicants. In the case of undergraduate applicants, a point system is used.
At the Supreme Court yesterday, each case was argued for exactly one hour, with Grutter v. Bollinger being heard first.
With thousands of protesters screaming outside, inside the ornate Supreme Court chamber, Chief Justice William Rehnquist quietly called the court to order at precisely 10 a.m. The justices took their seats in imposing, high-backed chairs, and oral arguments began after a few formalities.
The first 20 minutes of each case were allotted to attorney Kirk Kolbo, who argued on behalf of the petitioners the against using race in admissions. Kolbo argued that the equal protection clause of the 14th Amendment of the U.S. Constitution makes it illegal for Michigan to use one's race for or against an applicant in the admissions process. In both cases, he spoke for less than two minutes before being interrupted for questioning by one of the justices, after which his argument took on a high-stakes question-and-answer format.
Grutter has "a right to not have her race count against her," Kolbo argued. "The law school intentionally disregarded that right as it does each year."
"A constitutional promise of equality would not be necessary in a homogenous society," he added. "But in a society like the United States, it is crucial for the government to honor its solemn oath" of equality.
U.S. Solicitor General Theodore Olson followed Kolbo, arguing both on behalf of the petitioners and of the United States. Olson argued that racial diversity is not a compelling enough state interest to warrant trumping the Constitution, a stipulation set by recent Supreme Court precedents. He further argued that the Michigan policy is merely a quota system in disguise, a violation of standards set the last time the Court comprehensively looked at the use of race in admissions in higher education in the 1978 precedent-setting Regents of the University of California v. Bakke case. In Bakke, the Supreme Court ruled that consideration of race is constitutional but that specific quotas are not.
"This program at Michigan Law breaks every test that the Supreme Court has used," he argued. "It is a thinly disguised quota system that overtly implies discrimination."
"The University of Michigan admissions program has created a separate door for preferred minorities -- a door that is always open," Olson emphasized.
The lawyers for the respondents, Maureen Mahoney in Grutter and John Payton in Gratz, argued that the state of Michigan and its university have a compelling interest to both maintain an elite institution and promote racial diversity within it. They claimed that the processes Michigan uses are similar in design to the process used by Harvard University -- which was the example for proper use of race as expressed in Bakke.
A major issue addressed was whether the system used at Michigan is, in fact, a quota system.
Mahoney and Payton argued that the method is not a quota system because it does not guarantee admission to any certain number of minorities. Rather, it sets a goal of having a "critical mass" of minority students.
The "critical mass" is achieved, Payton explained, when there are enough minority students in a university community such that individuals do not feel as if they are "token students who must represent" every member of their race.
Justice Antonin Scalia questioned the definition of quota.
"Does it stop being a quota if it is between 8 percent and 12 percent, but 10 percent is bad because it's a fixed number?" he asked Mahoney. "It seems to me you are into 'quota-land.'"
Mahoney responded that the difference is that a desired goal is just that, and it is not met at any cost.
"It is not a fixed goal," she said. "If 8 percent cannot be achieved by qualified applicants, so be it."
"The difference between a quota and a goal is flexibility," Mahoney said.
Scalia professed a difficult time sympathizing with the Michigan dilemma -- as it is an academically elite institution wishing to foster diversity. Justice Clarence Thomas later agreed, saying that the problem could be solved by lowering admissions standards.
The state created this school, "knowing that the result will, to a large result, deny minorities." Scalia said. "Having created that imbalance, they then turn around and say that [diversity] is a compelling state interest."
Powell later commented that decreasing standards doesn't necessarily lead to increased diversity and pointed to community colleges that are less diverse but have large percentages of minority students.
"Some less selective schools aren't necessarily more diverse," he said. "Diversity doesn't follow lower standards."
The justices also seemed interested in the scope of the case and how it would apply to government institutions, in particular the U.S. military academies, all of which, except for the Coast Guard Academy, use some sort of positive factor for minority applicants in admissions.
Justices Ruth Bader Ginsburg, David Souter and John Paul Stevens questioned Kolbo extensively about the ability to use race in any capacity, should the court find for the petitioners. They wondered where the line would have to be drawn between being able and unable to use race as one factor among many in any number of different scenarios.
Kolbo drew the line at using race for or against individuals, saying that the equal protection clause does not apply to groups. He had no constitutional objection to targeting recruiting efforts and money at minorities, but the admissions decision, he said, must be colorblind.
"The equal protection clause of the Constitution does not apply to groups; it applies to individuals," he explained. "Recruiting is OK because it doesn't prevent people from being accepted. It is not directly at the point of competition, where individuals can be harmed."
After the arguments, Rev. Jesse Jackson expressed his hope that the Supreme Court would find in favor of the respondents.
"If using race becomes illegal, it undermines the entire Civil Rights Movement. It undermines everything," he said. "The right wing didn't want race to be a factor in abolition, either."
Congressman Harold Ford Jr. (D-Tenn.), a Penn alumnus and graduate of Michigan Law himself, emphasized the importance of a diverse campus and stressed that lower standards do not necessarily increase diversity.
Living with white students at Michigan "helped me understand them better, and frankly, none of them had ever been around black people," he said.
