Experts say court not likely to overhaul affirmative action

At the U.S. Supreme Court on Tuesday, questions raised by the nine justices were analyzed with as much intensity as any of the lawyers’ answers.

And the questions, which punctuated two hours of oral arguments in a high-stakes affirmative-action case, signaled to constitutional law experts that the high court is not ready to bar completely race-conscious college admissions policies.

“It’s very clear this court is not going to strike down all considerations of race,” Carol Nackenoff, a constitutional law expert at Swarthmore College, said.

That might give college-focused minority high school juniors and admissions officials at selective colleges some relief. But the University of Michigan, whose admissions policies are under review by the high court, might not be so lucky.

Nackenoff and others expect the court to craft a narrowly tailored decision striking down Michigan’s undergraduate admissions policy as unconstitutional because it resembles a quota, while at the same time ruling that a more subtle consideration of race is acceptable.

The justices’ questions “suggested strongly that many members of this court are not particularly interested in delivering a decision that makes sweeping new pronouncements, but rather to take the basic structure of race in admissions and tinker with the particulars,” Mark Rahdert, a constitutional law expert at Temple University, said.

The case involves white students rejected by Michigan’s undergraduate and law programs. They argue that Michigan’s consideration of race in admissions violates the equal protection clause of the Constitution’s 14th Amendment. A decision is expected by late June.

Experts warn against reading too much into questions the justices ask during oral arguments, but they can’t help analyzing them all the same. Many expect this case will be decided by the unpredictable swing vote of Justice Sandra Day O’Connor.

“O’Connor asked questions that could support either side,” said Robert Reinstein, Temple’s law school dean.

Early on, O’Connor voiced irritation that Kirk Kolbo, the attorney for the rejected students, advocated an unconditional ban on the use of race. O’Connor interrupted him: “You are speaking in absolutes, and it isn’t like that. I think we have given recognition to the use of race in a variety of settings.”

“It was classic O’Connor,” said University of Texas law professor Douglas Laycock. “She doesn’t like absolutes.”

But later, O’Connor voiced concern that the use of race in admissions is open-ended, with no time frame for ending the practice. She told Maureen Mahoney, the university’s attorney, that in the few cases where the court has allowed the use of race, there was a fixed time period for the programs to operate.

“I don’t think the court should conclude that this is permanent,” Mahoney replied. She said the number of high-achieving minorities can grow.

Nathaniel Persily, a professor at the University of Pennsylvania’s law school, said O’Connor was in a bind because she has written decisions that limit affirmative action to programs that offset specific discrimination. Whether she will view education differently is a big question.

One of the legal issues the court must grapple with is whether there is a compelling state interest for universities to consider race in admissions.

The case has generated a record number of briefs from corporations, colleges, the military and politicians that argue for or against a compelling interest.

Experts voiced surprise at the justices’ focus on a brief filed by retired military generals and defense secretaries. The military brief argued that there is compelling interest in using race, at least for the military academies, which must produce a qualified and diverse officer corps to lead diverse troops in the pursuit of national security.

Rahdert called the interest in the brief “remarkable, because it’s rare that something in a brief would play so big a role in oral arguments.”

The brief gave the justices the impetus to argue the broader merits of race-conscious admissions beyond what Justice Lewis Powell had advocated in a fractured 1978 decision called Bakke. Powell argued that there was an interest in student diversity for academic reasons.

The military brief broadened the argument to larger societal benefits. The brief “makes a strong case that sometimes we do need to make racial considerations, and that diversity in higher education has enormous value to society,” said Rahdert.