The Supreme Court issued a barrage of questions from the bench yesterday about the consitutionality of the University of Michigan's affirmative action policies.
Yesterday's oral arguments for the two cases focused on the University of Michigan's undergraduate and law school admission policies.
White applicants who were rejected brought suit against the university because they alleged they were denied their equal protection rights.
The University of Michigan undergraduate program uses a points-based admission policy that assigns a numerical benefit for minority status. The law school tries to maintain a certain level of diversity from year to year.
After the two-hour session, the Court released an audiotape of the arguments. The Court has done so only once before, after the 2000 presidential election cases.
Because the Constitution prohibits racial discrimination, the justices focused their questions on whether racial diversity is a sufficiently compelling state interest to let public academic institutions use affirmative action.
Compliance
According to Solicitor General Ted Olson, a Bush administration lawyer, the University of Michigan admission policies fail to comply with the current Supreme Court ruling on affirmative action. The decision in the 1978 case of Regents of the University of California v. Bakke held that racial quotas are unconstitutional but that race could be used as a factor in admissions.
"There is a thinly disguised quota for every class," Olsen said yesterday. "They're using stereotypes to break down stereotypes," he said. "They're using race as a surrogate for experience."
In addition, the Supreme Court was interested in exploring race-neutral policies, such as the University of Texas' 10-percent plan that guarantees admission to the university for all students in the top 10 percent of each of the state's high schools.
The justices also discussed socioeconomic admission plans that would admit students based on family income.
Compelling interest
Several justices questioned whether diversity is a compelling state interest for the University of Michigan law school because the racial imbalance was created by its own reputation as an elite law school. The justices also questioned whether lowering the law school's standards would maintain a diverse population.
Maureen Mahoney, the lead attorney for the University of Michigan, replied that the "benefits [of affirmative action] are race-neutral and the burdens are quite limited."
Mahoney said there is a compelling interest in having an institution that is academically superior and racially diverse.
Quotas
The Supreme Court questioned the difference between seeking a critical mass of minorities and filling a quota.
"It can be related to numbers without being a quota," Mahoney said.
She said the University of Michigan aspires to have minorities comprise between 16 and 17 percent of its student population, but maintained that the number represents a goal rather than a quota.
In the University of Michigan undergraduate admission policy, 95 percent of the admissions are not affected by race, Mahoney said. Of the 25,000 students rejected, only 80 of them would have gotten an offer if the school had a race-blind policy, she said.
Kirk Kolbo, representing the white applicants rejected from Michigan, emphasized that the Constitution protects the rights of individuals, not of racial groups. The question, he said, is whether the discrimination is against an individual, not how many people are discriminated against.
The court was also interested in how diversity affects the academic environment of universities and colleges.
John Payton, another attorney for the University of Michigan, argued that having a critical mass of minority students allows these students to be comfortable being themselves and helps to create an environment in which all students can overcome stereotypes and racial discrimination.
More than 100 "friend of the court" briefs were filed in the weeks leading up to yesterday's hearing. A majority of them, including the University's, support the use of affirmative action, if not its particular application at the University of Michigan.
Diversity in the military
The U.S. military filed a friend of the court brief on behalf of the University of Michigan, stating that race-based admissions increase the number of minority officers and reduce racial discrimination within the ranks.
The justices were particularly interested in determining whether such admission policies are permissible for military preparatory schools that recruit racial minorities. Justice Breyer suggested that if it is reasonable to use race as a plus criterion in spending government money at such schools, then race can be used as a criterion in training a diverse future leadership.
Kolbo drew a line between "casting a wider net" and preventing qualified students from applying to a program.
A ruling on the cases is expected by June or July. The friend of the court briefs are expected to influence the court's decision in favor of continuing affirmative action.
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