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U.S.: Top Court Holds Firm On Affirmitive Action

The United States' highest court has ruled that universities can give minorities an advantage when they apply for admission in order to rectify past discrimination. RFE/RL speaks with legal experts about this landmark Supreme Court decision.

Washington, 24 June 2003 (RFE/RL) -- As part of the United States' continuing struggle to correct its treatment of minorities, the U.S. Supreme Court has ruled in favor of a university plan that eased the admission of minority students into its law school, but rejected the same university's more aggressive program for admitting undergraduates.

U.S. legal and cultural affairs analysts say the rulings may be more significant for not taking a step backward in the nation's 50-year-old movement to guarantee equal rights to all Americans than for anything they might do to actually promote improved race relations.

The country's highest court ruled yesterday that the law school of the University of Michigan may continue using an admissions program that gives moderate consideration to race and other ethnic factors.

But the court struck down Michigan's undergraduate admissions program, which had used a rigid numerical system under which applicants from racial and ethnic minorities got significantly higher credit than those of European descent.

Such programs are known as "affirmative action" programs. They were designed to correct racial and cultural discrimination dating from the days of slavery, which ended in the mid-1800s, and public segregation of black society from white, which was legal in much of the United States for a century after slavery was abolished.

Many whites object that affirmative action simply reverses the target of discrimination -- that is, that blacks are favored for university admission or employment simply because of their race, not always because they are qualified, and that whites are the victims.

During arguments before the Supreme Court last year, the University of Michigan's lawyer, John Payton, argued that academic excellence alone is not enough to ensure high-quality education. Racial and ethnic diversity also are essential, he said, and argued that they cannot be achieved without a significant presence of minority students on campus.

Payton used the term "critical mass" to describe an unspecified proportion of minorities needed to maintain a significant presence among the student body. He defined it this way for the Supreme Court's nine justices: "Critical mass is when you have enough of those students so they feel comfortable acting as individuals."

In his own presentation before the justices, the lawyer for the administration of U.S. President George W. Bush countered that the university was doing little more than establishing a quota system for minorities. The Supreme Court ruled this practice unconstitutional in a decision 25 years ago.

One of the Supreme Court justices, Anthony Kennedy, appeared to agree during his questioning of the two lawyers. "I have to say that, in looking at your program, it looks to me like this is just a disguised quota," Kennedy said.

Another justice, Ruth Bader Ginsburg, took an entirely different view of the university's program, saying it was no different from the ones that were in effect when she herself was a student. Ginsburg noted that schools often give extra credit to students based on their backgrounds, whether due to ethnicity, gender, or even musical ability. "Because they play the bassoon, because they belong to a minority race, because -- in the days back when I went to law school -- they are female," she said.

Robert Levy is a scholar of the U.S. Constitution at the Cato Institute, a private policy-research institute in Washington. Levy says the Supreme Court's decision upheld the principle of racial and ethnic diversity in universities.

Levy says the court also puts a burden on a state-run university to limit itself drastically when it engages in one form of discrimination by trying to correct another. "Whenever the government discriminates on any basis -- whether it's bassoon players or whether it's based on race or gender -- the government needs to be able to show that it has this compelling interest in doing what it's doing and that it's adopted the means of accomplishing that interest that are less discriminatory than alternative means that might be available. Because, after all, the government belongs to all of us," Levy said.

Still, Levy said that from a practical standpoint, yesterday's ruling does little to prevent further legal battles over how to correct discrimination against minorities in the United States.

Basically, according to Levy, the decision merely says that a university may take steps to implement affirmative action, but that those steps may not be too aggressive. As a result, he expects many more lawsuits over the initiative in years to come. "It doesn't give us a lot of useful guidelines for the next program that 'comes down the pike.' It's going to be very much an ad hoc determination," he said.

In fact, Leo Ribuffo, a professor of history at George Washington University in Washington, told RFE/RL the two rulings, taken together, amount to little more than a fine-tuning of previous decisions on affirmative action.

But what is significant, according to Ribuffo, is what the court did not do. He notes that the nine justices voted 5-4 to uphold the less aggressive affirmative-action program at Michigan's law school.

Ribuffo said that if just one of the five justices in the majority had voted differently, the court would have dealt a major setback to programs working to ensure equality for minority Americans. "It doesn't seem to me that it's that major. Had there been one more vote to strike down affirmative action, that would have been big news," Ribuffo said.

Mark Tushnet agrees. He is a professor of constitutional law at Washington's Georgetown University. Tushnet said yesterday's rulings do not do much to advance the goals of the U.S. civil rights movement.

Tushnet said the rulings do, however, prevent a backslide. He speculates that if the University of Michigan's law school admission's program had been ruled unconstitutional, many public and private schools across the country would have had to draw up entirely new affirmative-action programs.

"[Yesterday's decision] prevents a large step backward. If the court had come out the other way, then all sorts of existing [affirmative-action] programs would have to be reconsidered and restructured," Tushnet said.

According to Tushnet, the effects of the rulings in both cases will be felt far beyond universities -- by local and federal government agencies and even by businesses. All have affirmative-action programs, he said, and now all can tailor them to the Supreme Court's latest decision.