- The Washington Times - Monday, December 2, 2002

The long constitutional battle over whether university admissions may favor racial minorities is back at the Supreme Court, a quarter-century after justices split on the Bakke case and later confronted a parade of imitators without resolving the dispute.
At issue this time is whether University of Michigan admissions programs that make race a "plus" violate the Constitution's 14th Amendment requirement that a state not "deny to any person within its jurisdiction the equal protection of the laws."
For the past five years specialists in the field have predicted the battle finally would be joined by challenges to these affirmative-action programs for undergraduate and post-graduate applicants to the University of Michigan and its law school.
The justices were scheduled to consider three appeals involving those plans at a closed-door conference Nov. 27. Whether any or all of the petitions win the four votes needed to grant a public hearing could be announced when the court ends its current recess today.
"This is sort of the best opportunity for them to take the case and resolve the issues," said Michael Rosman, of the Center for Individual Rights, which represents plaintiffs challenging both programs.
"The key issue is whether diversity is a compelling government interest sufficient to consider race," Mr. Rosman said.
Because that question would affect higher-education programs nationwide, CIR told the court the appeal "presents issues of fundamental national importance."
The state-owned university claims its programs consider race only as a "plus factor," contending that is permitted under the court's 1978 order to admit a white student, Allan Bakke, to the University of California Medical School. That order affirmed lower court rulings that the school's program was unconstitutional.
Justice Lewis Powell wrote an opinion that said the university could not be prohibited from taking race into account as one factor in future admissions decisions. No other justice joined all of Justice Powell's reasoning and there were five additional opinions explaining their differences. Since the main opinion was joined by less than a majority of the court, its reasoning is not considered binding precedent nor does it carry the weight of a court opinion.
Although university statements quote the phrase "plus factor" from that ruling, those words paraphrase Justice Powell's opinion, which twice used the word "plus:"
"In such an admissions program, race or ethnic background may be deemed a 'plus' in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats."
"The applicant who loses out on the last available seat to another candidate receiving a 'plus' on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname."
Both Michigan cases were argued in December before the 6th U.S. Circuit Court of Appeals. That court ruled in May that the university law school possesses the "compelling interest" in promoting diversity that places its program within constitutional limits. That decision was appealed Aug. 9.
But the federal appeals court still has not ruled in the undergraduate case which unlike the law school plan assigns a 20-point bonus for black, Hispanic, and American Indian applicants to the school's College of Literature, Science and the Arts.
On Oct. 1, plaintiffs in that lawsuit, Jennifer Gratz and Patrick Hamacher, asked the high court to wait no longer and consider their appeal in tandem with the one filed against the law school. The court scheduled both challenges for the same conference.
Taking the undergraduate case before the appeals court renders a final decision would require a rare action called "certiorari before judgment." None of the parties to the cases is opposing that motion, however.
"The delay that has already occurred is incompatible with the time-sensitive nature of the admissions process and with the 6th Circuit's ruling that the appeal would be expedited," said the Supreme Court filing in the Gratz case.
If the high court were to accept the appeals and decide that states do have a "compelling interest" in creating diversity, the justices then would be asked to decide the narrower question of whether Michigan's program is broader than needed to meet that goal.


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