- The Washington Times - Monday, June 23, 2003

The most tangible outcome of yesterday’s split Supreme Court decisions on affirmative action will be another round of lawsuits over what’s acceptable and what’s illegal for colleges and universities.

Carl Cohen, the University of Michigan professor who brought his school’s admissions policies to light in 1996, said the ruling will ignite a flurry of legal challenges to similar policies.

“One of the unhappy aspects of this ruling is that the argument that has been raging since 1978 will continue for years to come,” said Mr. Cohen, who was forced to use the Freedom of Information Act when the university refused to divulge its undergraduate admissions criteria.

“I think we will move on to another phase of litigation and legislation,” said Barbara Grutter, who filed a lawsuit against the University of Michigan Law School. She was refused in favor of minority students, despite her 3.81 grade point average at Michigan State University.

In a 5-4 decision, the court upheld the law school’s policy of considering race because, the majority decided, when applied to individual applicants it can help achieve a “critical mass” of diversity. But in a 6-3 decision, the court overturned the undergraduate admissions policy, which automatically awarded applicants points for being a minority.

Some on both ends of the political spectrum said they expect race-conscious admissions policies to disappear eventually.

“While the court failed to strike down the law school’s practice of allowing a diversity officer make the deciding factor in admissions, the trend line is unmistakable,” said Terrence J. Pell, president of the Center for Individual Rights, which led the charge against both admissions policies.

Echoing the conservative Mr. Pell, Tom Gerety, president of Amherst College in Massachusetts and a liberal constitutional lawyer, said he sees the end of those policies “within the next five to 10 years.”

“The ground is shifting as far as race goes,” he said.

But another advocate for overhauling race-conscious admissions said the Supreme Court decision will give schools greater latitude in allowing race to be an admissions factor.

“What this tells schools is that a 20-point preference system for skin color is too much,” said Edward Blum, director of legal affairs at the American Civil Rights Institute. “So the danger is that universities will go back and eliminate their point system, but still look at applications through a racial prism.”

Key politicians on Capitol Hill were still digesting the decision yesterday, and aides said no decision has been made on whether to propose legislation to clarify the court’s rulings.

Some Republican aides did say lawmakers will look to see whether government hiring practices should change to conform with the rulings.

President Bush, whose administration had opposed both the law school and undergraduate admissions programs though it did not oppose affirmative action outright, still said the ruling recognizes “the value of diversity on our nation’s campuses.”

Still, he repeated his administration’s policy that “we must look first to these race-neutral approaches to make campuses more welcoming for all students.”

Most other Republican leaders were silent yesterday, but Democrats were quick to embrace the law school decision as a big victory and said it officially ends the debate on affirmative action.

“Today’s Supreme Court decision puts to rest a debate that has gone on far too long in this country,” said Rep. Robert Menendez of New Jersey, the chairman of the House Democratic Caucus and the top Hispanic member in Congress.

All the major Democratic presidential candidates issued statements praising the decision as a victory for diversity.

But several went further, arguing that the 5-4 decision shows the need for a Democratic president to appoint liberal justices to the court.

“An important part of our nation’s future hangs in the balance at the Supreme Court, and if that balance is upset — if George Bush is allowed to tip the scales by appointing an extremist to the court — then we could see the clock rolled back to a time of more separate and horribly unequal access to education in America,” said Sen. John Kerry, Massachusetts Democrat, who is running for president.

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