Broadcast: April 14, 2003
Legal experts call it America's most important debate on affirmative action in twenty-five years. Colleges and universities say they have a right to consider race when they choose students. The Supreme Court will decide. I’m Steve Ember.
And I’m Phoebe Zimmermann, with the VOA Special English program THIS IS AMERICA.
On April first, thousands of demonstrators marched outside the Supreme Court building in Washington, D.C. They came from as far away as California. Most came to support affirmative action. Black students and others shouted and waved signs. They called on the nation's highest court to keep affirmative action programs in place.
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Inside the court, the nine justices heard arguments in two cases brought by white students against the University of Michigan.
"Affirmative action" is the name for programs to help members of minority groups and women in education and employment. Opponents say it puts race and ethnicity ahead of ability. They call that unfair. If that is true, supporters answer, then so is special treatment given to children of the wealthy and politically connected.
Colleges and universities throughout the country have programs to help black, Hispanic and Native American students get admitted. But pressure has grown to end such programs especially at schools that receive public money.
Whites who oppose affirmative action say it unfairly reduces their chances to attend the nation's most competitive schools. They say admissions policies should be race-neutral.
Minorities and others say affirmative action helps balance a student population. This diversity, they say, creates a better learning environment for all students. They say studies have shown that if such programs are banned, colleges would accept fewer minorities.
Critics say diversity has not been shown to provide an educational benefit to students. In any case, they say diversity is not an interest required of government.
The cases before the Supreme Court started in nineteen-ninety-seven. Three white students brought two separate actions against the University of Michigan. Jennifer Gratz and Patrick Hamacher had been denied admission to the undergraduate program two years earlier. Barbara Grutter was rejected by the Michigan law school. They investigated, and found that African Americans and other minorities were admitted with lower scores than whites.
They argued that this violated the Fourteenth Amendment to the Constitution and the Civil Rights Act of nineteen-sixty-four. The Fourteenth Amendment guarantees equal treatment under the law. The Civil Rights Act says organizations that get federal money cannot make decisions based on a person’s race. Both these laws had been written mainly to help black people seek fair treatment.
The University of Michigan does not deny that it uses race among other considerations when it chooses students. The policy at the university and its law school gives extra credit to minority students. It gives twenty points out of the university’s one-hundred-fifty point system to African-Americans, Hispanics or Native Americans. Points are also awarded to all students based on where they live, as well as their athletic ability, test scores and grades.
The university says academic performance gets the most points. But critics say race is the most decisive measure of all.
For two hours on April first, the nine Supreme Court justices heard legal arguments in these two cases. They aggressively questioned the lawyers for the university and for the white students denied admission. They also heard from the top lawyer for the Bush administration. The administration has intervened to oppose the Michigan program.
President Bush calls it a quota system based on race. The president says there are better methods to gain diversity in higher education. Californians voted in nineteen-ninety-six to end affirmative action in state government, including education. Public systems in California, Texas and Florida currently admit students who are in the top percentages of their high school classes. But even this method has its critics.
Affirmative action in the United States grew out of the civil rights movement of the nineteen-sixties. Such programs are designed to guarantee that minority groups and women can compete equally with whites and men. Civil rights leaders say affirmative action has helped minorities and women enter colleges and get good jobs they would likely have been denied in the past.
Some programs seek to remove barriers so that all people may compete equally. Others have been designed to guarantee that an established number of women and minorities are chosen for jobs or a place in school. Designers of such programs have to be careful, though. In nineteen-seventy-eight, the Supreme Court banned establishing quotas in affirmative action programs. The court ruled in what was known as the Bakke case.
Allan Bakke, a white man, wanted to attend medical school at the University of California at Davis. He was rejected twice. But the school had accepted minority students with lower scores. A quota system saved sixteen spaces for minorities out of a total of one-hundred students admitted.
Allan Bakke said judging him based on his race violated the Constitution. The Supreme Court agreed. It ruled that colleges could consider race in admissions. But it said race could not be the only consideration.
The Bakke case, however, split the Supreme Court five-to-four. Since then, the justices have been divided in their opinions in other affirmative action cases. But since Bakke the court has not revisited the issue of school admissions.
Michigan says its programs do not violate Bakke because they do not use quotas.
The limits established in the Bakke case were meant to guarantee that providing greater chances for minorities did the least possible harm to others. But the case did little to settle the issue of affirmative action. The debate has only intensified over the past twenty-five years.
Observers of the Supreme Court have been trying to guess how the justices will rule in the Michigan cases. Four members are considered most likely to vote against the university. That is based on past conservative decisions. The four are Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.
Four justices with records of more liberal opinions are considered most likely to support the university. These four are John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
If this guesswork is correct, then Justice Sandra Day O’Connor would have the fifth and deciding vote. Her vote has decided past race-related cases. Justice O'Connor has taken positions in the political center. She generally has rejected policies that treat races differently. But she also has not been willing to end them completely.
Before the arguments on April first, the court received hundreds of documents from businesses, politicians and military officials. These groups urged the court not to end affirmative action.
During the hearing, a majority of the nine justices did express concerns about ending affirmative action. They talked about what could happen if fewer minorities receive higher education. It could even affect the nation's defense, if the military has fewer college-educated minorities to become officers.
Justice O’Connor noted that most affirmative action programs approved by the court in the past were for set periods of time. Several other justices suggested that the University of Michigan use other methods to establish racial balance. Justices Scalia and Thomas suggested that Michigan might even avoid the need for affirmative action if it lowered its admissions standards.
What the Supreme Court decides could affect the future of affirmative action policies nationwide. The decision is expected in June.
Our program was written and produced by Cynthia Kirk. I’m Steve Ember.
And I’m Phoebe Zimmermann. Join us next week for another report about life in the United States on the VOA Special English program THIS IS AMERICA.