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Supreme Court could limit opportunity

WASHINGTON (NNPA)—At stake in the decision by the U. S. Supreme Court to hear two affirmative action cases challenging undergraduate and law school admissions policies at the University of … WASHINGTON (NNPA)—At stake in the decision by the U. S. Supreme Court to hear two affirmative action cases challenging undergraduate and law school admissions policies at the University of Michigan is not only the amount of access people of color will have to higher education, but the kind of job opportunities they will have upon graduation, according to civil rights experts.

“This is particularly dangerous because affirmative action in education is the key to every other opportunity in this society,” says Congresswoman Eleanor Holmes Norton (D-D.C.), who was chair of the Equal Employment Opportunity Commission during the Carter administration. “If you want to cut the legs out from under the minority community, you take back their right to become qualified for jobs by making it difficult to attend colleges and universities.”

And what factors are permissible for admission officers to use is central to the cases now before the Supreme Court.

“The stakes in this case are very high because the stakes are whether or not any college or university, public or private, can take race into account in selecting its students from among the qualified group of applicants,” says John Payton of Wilmer Cutler and Pickering, a Washington, D.C.-based law firm. “There’s no surprise to anyone. The Michigan cases were put together with the clear understanding that this issue could make its way back to the Supreme Court… We’re quite optimistic.”

The cases, to be heard by the court during the first half of 2003, marks the first time the Supreme Court has considered the use of race in college admissions policies since 1978. That year, the court ruled in University of California v. Bakke that race can be a “plus” factor a college uses to admit students. That ruling also outlawed the use of fixed quotas.

Generally, the court will rule on whether Bakke is still good law by deciding two specific issues. First, the court will decide whether diversity is a compelling state interest. Second, it will decide whether the programs are narrowly tailored to accomplish diversity without violating other interests, such as equal protection under the law, explains Norton.

Payton will defend the university’s undergraduate admissions policy, which was pending in the 6th U.S. Circuit Court of Appeals in Cincinnati. Maureen Mahoney of Latham & Watkins, another Washington law firm, will defend the law school policy, which the 6th Circuit upheld in May.

Symbolic of the divisiveness of affirmative action, two federal judges issued opposite rulings in the two cases now before the Supreme Court. U.S. Judge Patrick J. Duggan upheld the undergraduate program, saying it was constitutional as long as it does not isolate other applicants from fair review. But, Judge Bernard A. Friedman ruled that the law school program violated the equal protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.

Lawyers for the plaintiffs at the conservative Center for Individual Rights announced last May that they would appeal the 5-4 decision appeals court ruling upholding the law school program in Grutter v. Bollinger. The Supreme Court took the undergraduate case, Gratz v. Bollinger, without an appeals decision because of their related arguments.

“If the court decides that Michigan’s admission program is unconstitutional, we will see a dramatic drop in the number of Blacks admitted to the country’s most prestigious colleges and law schools,” says Mahoney. “We have excellent arguments and I think that the court will agree with us.”

Center for Individual Rights spokesman Curt Levey says his organization is convinced that the Supreme Court will side with the White students the organization represents.

“What [affirmative action] shouldn’t mean and what it can’t mean legally is giving preferences purel

December 16, 2002
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