- The Washington Times - Tuesday, June 24, 2003

The expected 25-year sunset provision from Justice Sandra Day O’Connor in the Supreme Court decision allowing universities to discriminate by race may prove to be less a magic number than a basis for more lawsuits.

“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” Justice O’Connor said from the bench Monday when she announced that the court adopted the University of Michigan Law School position that racial diversity is a necessary educational tool at institutions of higher learning.

“We take the Law School at its word that it would ‘like nothing better than to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable,” Justice O’Connor’s 5-4 opinion said.

But some legal analysts predicted yesterday that those words, and the June 23, 2028, deadline, will become the basis of challenges to affirmative-action plans, while supporters of the decision minimized the importance of setting a date.

“I think some enterprising lawyer will take it back to courts long before 2028. If there are going to be any more substantial questions emanating from this case, it will be the language referring to 25 years, sunset provision and periodic reviews of preference programs,” said Peter Kirsanow, a Republican member of the U.S. Commission on Civil Rights and a specialist in employment law.

“This is a prescription for litigation. Because there are no definable standards, periodic reviews are going to become exercises in social science all over again,” Mr. Kirsanow, a Cleveland lawyer said yesterday in an interview.

Duke University law professor James Coleman, who led the group that prepared the American Bar Association brief in the Michigan case, called Justice O’Connor’s words an expression of hope, rather than a court order.

“That places the burden on universities to review periodically their admissions policies, adopt race-neutral policies when they will serve the goals of meaningful diversity and selectivity, and to eliminate the consideration of race when race-neutral policies will achieve the compelling interest of a diverse student body,” Mr. Coleman said.

Since 1968 the high court has required a “predetermined endpoint” or logical stopping point in race-balancing plans involving K-12 schools. In 1979 the justices established a similar rule for job-discrimination cases.

Federal judges rarely impose a fixed date to comply and prefer such triggers as meeting a racial balance in a school or workplace that matches the community, said Julie Underwood, staff counsel at the National School Boards Association.

“Usually it’s set by benchmarks, but when you’re under court supervision, those reports are made regularly back to the court supervisor so you don’t have to say it will be 25 years,” she said yesterday.

Such reviews lead to a modified plan or dismissal of the case and an end to court supervision of a school system, but Ms. Underwood said 25 years might be optimistic for the nation’s higher-education system.

“Brown v. Board of Education was decided 50 years ago. We’re not there yet. In many areas of the country, we’re becoming more segregated rather than less segregated,” she said.

Justices who oppose the decision, and attorneys on both sides, consider the 25-year date a moveable feast.

“I don’t think it was given as a fixed end date, but certainly I think the court hopes and expects the program will end in 25 years,” said Maureen Mahoney, the former deputy U.S. solicitor general who won the case for the University of Michigan Law School.

“I don’t think it’s common for them to say, ‘It shall end in 25 years.’ But the concept of bringing it to an end as soon as possible is written into many plans,” said Miss Mahoney, who once clerked at the Supreme Court for Justice William H. Rehnquist before his elevation in 1986 to chief justice.

She said the Michigan law school program has no fixed end date.

“But race only will be taken into account so long as necessary to achieve a diverse student body,” Miss Mahoney said.

Justices Clarence Thomas and Anthony M. Kennedy voiced doubts about the 25-year provision in dissents Monday.

“I agree with the court’s holding that racial discrimination in higher education admissions will be illegal in 25 years. They are illegal now,” Justice Thomas wrote in his opinion.

“The majority does not and cannot rest its time limitation on any evidence that the gap in credentials between black and white students is shrinking or will be gone in that timeframe,” he wrote.

Justice Kennedy rejected what he called the “interpretation that the opinion contains its own self-destruct mechanism.” Taking the law school on “good faith” removes the incentive to explore alternatives, he said.

“It is difficult to assess the court’s pronouncement that race-conscious admissions programs will be unnecessary 25 years from now,” Justice Kennedy said.

Some lawyers think the provision will be read by courts as a binding portion of the opinion, while others dismissed it as “dicta,” or commentary in an opinion that is not part of the ruling.

“It’s dicta, that’s true. But very often in dicta there are opportunities for those who seek to interpret a decision to exploit openings,” Mr. Kirsanow said of Justice O’Connor’s statement.

“I think she viewed it as kind of a throwaway line, as a suggestion. She threw that out there as a salve to address the issue that there seem to be endless preferences,” he said.

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