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Affirmative action case awaits Supreme Court review

From William Mears
CNN

The University of Michigan is defending itself against charges it rejected white students because of their race.
The University of Michigan is defending itself against charges it rejected white students because of their race.

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WASHINGTON (CNN) -- In what could be one of the most significant decisions on equal opportunity in education, the Supreme Court will decide Wednesday whether to review affirmative action programs in the nation's universities.

A ruling could change the way large, public universities attempt to recruit minority students.

At issue is whether race can be used as a factor in admissions to state-funded colleges, to increase diversity among the student body. Justices would be asked to decide whether a state has a "compelling interest" to promote a diverse student body, or whether the Equal Protection Clause of the 14th Amendment forbids giving one ethnic group or culture special advantages over another.

Justices will meet in a closed-door session to decide whether to accept the case for review. An announcement from the bench is expected Monday.

Chief Justice William Rehnquist will not attend the meeting, after undergoing knee surgery Tuesday. He could participate by phone, said spokeswoman Kathy Arberg.

The case involves Barbara Grutter's 1995 application to the University of Michigan law school. It was rejected, despite what she said was "very strong" expertise in a variety of fields.

"I have a lot of experience I could have brought to that class," she told CNN three years ago, when the case was being appealed.

Along with two other applicants, she sued, accusing the university of rejecting white applicants because of their race, and using unfair standards to admit lesser-qualified minorities. They want race taken out of the admission process.

The law school says it has the right to use race in recruiting students, and also the responsibility.

"We take race into account as a factor among many in order to pursue the educational benefit of diversity," university lawyer Liz Barry told CNN in 1998. A federal appeals court in May upheld the university's law school admissions process.

Second Michigan case may complicate ruling

Jennifer Gratz, left, and Barbara Grutter.
Jennifer Gratz, left, and Barbara Grutter.

If the Court were to strike down the Michigan law school's admissions policy, universities would be forced to change how they accept minorities. Affirmative action programs in general could also be radically affected.

But it is unclear whether the justices will want to take on so contentious an issue. Several members on the nine-person court have publicly expressed strongly conflicting opinions on affirmative action, and some legal expert predict the justices will refuse to hear the case, fearing an uncertain outcome in a divided Court.

Another complication that could prevent justices from agreeing to accept the case this term: a companion case from the University of Michigan dealing with undergraduate admissions. A federal appeals court has yet to rule on the undergraduate dispute, and the Supreme Court rejected an appeal to have both Michigan cases heard together.

In that case, Jennifer Gratz was denied admission to the school in 1995. In her lawsuit against the school, she claims Michigan essentially runs two admissions systems to get a pre-determined racial mix of students.

A controversial part of Michigan's admission policy was a 150-point scale used to grade an applicant's record. African Americans, Latinos or Native Americans automatically received 20 points for their race, which could have raised their grade a full point on a 4.0 scale. The point scale is no longer used at the school.

Mixed rulings stir controversy

Affirmative action programs were originally created to correct racial and cultural discrimination, dating from the days of slavery and public segregation. But advocates on both sides of the issue agree the initiatives have proven controversial, and enforcement has been often been applied in a random and confusing way.

One reason: the Supreme Court's ambiguous ruling in 1978 Bakke case, the last time the Court addressed affirmative action in public universities. The Court ruled the University of California at Davis could not hold a quota of places for minorities. But writing in support of the decision, the late Justice Lewis Powell wrote, "The goal of achieving a diverse student body is sufficiently compelling to justify consideration of race... under some circumstances."

Since then, federal courts around the country have split on whether affirmative action in higher education is constitutional. In legal briefs filed with the Court, lawyers from both sides of the University of Michigan law school case argued now is the time for the justices to give a clear, definitive ruling on the issue.

If the Court agrees to hear the case, both sides could present arguments in late winter/early spring 2003. A ruling from the bench would likely come near the end of the term in June.

The case is Grutter v. Bollinger (No. 02-241).



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