Supreme Court Splits on Diversity Efforts at University of Michigan
By David Stout for the NY Times.

The law school's policy was affirmed in a 5-to-4 ruling, written by Justice Sandra Day O'Connor, that rejected Bush administration arguments that the policy should be voided. She declared that the Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."

"Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized," Justice O'Connor wrote.

She was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Dissenting were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Here is the full text of the article in case the link goes bad:

http://www.nytimes.com/2003/06/23/politics/23WIRE-COURT.html

Supreme Court Splits on Diversity Efforts at University of Michigan
By DAVID STOUT

WASHINGTON, June 23 — In its most important statements on affirmative action in a quarter-century, the Supreme Court narrowly upheld the admissions policy of the University of Michigan law school today, finding that minority applicants may be given an edge, but struck down the part of the university's undergraduate-admissions system that relies on a point system.

The pair of rulings did not go as far as opponents of affirmative action would have liked, nor perhaps as far as people committed to affirmative action would have wished. But taken together, the twin decisions were the most important rulings on the subject since the landmark Bakke decision of 1978, which rejected rigid quotas but recognized race as a "factor" in admissions and hiring decisions.

The rulings are expected to have wide impact through private college and universities, businesses and other areas of everyday life even though, technically, they address only admissions at public institutions.

The law school's policy was affirmed in a 5-to-4 ruling, written by Justice Sandra Day O'Connor, that rejected Bush administration arguments that the policy should be voided. She declared that the Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."

"Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized," Justice O'Connor wrote.

She was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Dissenting were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Chief Justice Rehnquist called the law school program "a naked effort to achieve racial balancing" in accordance with statistics.

"This is precisely the type of racial balancing that the court itself calls `patently unconstitutional,' " he wrote.

In its 6-to-3 ruling on undergraduate admissions, the justices struck down a point system under which applicants were rated on various factors, including race. In so ruling, the court showed the wariness with which it has regarded the general concept of "quotas" in recent years.

Chief Justice Rehnquist, writing for the majority, found that in considering undergraduate applicants, the university had violated the Equal Protection Clause of the Constitution.

The University of Michigan decisions were handed down as the court set to conclude its 2002 term. The justices also upheld the use of filters to screen out Internet smut in public libraries and struck down a California law requiring insurance companies that do business in the state to disclose information about their Holocaust-era policies.

Still to be decided is a death-penalty case from Maryland, involving the extent of a defense lawyer's duty to search out background information that might persuade a court to spare a defendant.

In the undergraduate case, Justices O'Connor, Scalia, Kennedy and Thomas sided with the chief justice, as did Justice Breyer, in part.

Justices Stevens, Souter and Ginsburg dissented, as did Justice Breyer, in part.

The law school case is Grutter v. Bollinger, No. 02-241; the undergraduate case is Gratz v. Bollinger, No. 02-516. Both can be read on the Supreme Court Web site: www.supremecourtus.gov.

The University of Michigan's leadership was elated at the outcome. "A majority of the court has firmly endorsed the principle of diversity," the university's president, Mary Sue Coleman, told The Associated Press. "This is a resounding affirmation that will be heard across the land from our college classrooms to our corporate boardrooms."

Together, the decisions and dissents run to some 150 pages, which are certain to be pored over by lawyers, educators and policymakers for some time.

It was no surprise that today's decisions were not entirely clear-cut, given the tone of the arguments before the tribunal on April 1.

The yearning for nuance became especially obvious when Kirk O. Kolbo, a lawyer from Minneapolis, had a sharp exchange with Justice O'Connor.

"The Constitution protects the rights of individuals, not racial groups," Mr. Kolbo said. He described his clients — Barbara Grutter, who was turned down by the law school when she applied at the age of 43, and Jennifer Gratz and Patrick Hamacher, who failed to win admission as undergraduates — as the victims of discrimination.

Justice O'Connor, whose position at the center of the court on this issue made her the object of particular attention, challenged Mr. Kolbo. Was he saying that race "can't be a factor at all," she wanted to know.

"Race itself should not be a factor among others in choosing students, because of the Constitution," Mr. Kolbo replied.

Justice O'Connor objected that the court's precedents held otherwise. "You are speaking in absolutes, and it isn't quite that," she said.

Justice Thomas explained his dissent in part by quoting Frederick Douglass: "What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice."

The justice went on, "Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators." The United States Court of Appeals for the Sixth Circuit, in Cincinnati, had upheld the law school plan. It had not yet ruled on the undergraduate plan when the Supreme Court decided to hear both cases.