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Affirmative action is in his hands

December 03, 2006|Edward Lazarus | EDWARD LAZARUS, a lawyer in private practice, is the author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court."

AT THE START of his first full term on the Supreme Court, Justice Anthony Kennedy weighed a legal challenge to a policy in Richmond, Va., that reserved 10% of the city's contracts for minority-owned businesses (Richmond vs. Croson). At the time, Kennedy was thought to be a potential swing vote on a court deeply riven by its views on affirmative action.

The court's liberal wing believed that in light of the nation's racist past, the Constitution's promise of "equal protection of the laws" permitted -- indeed, almost mandated -- some degree of minority racial preferences. As Justice Harry Blackmun wrote in the Bakke case, in which the court cautiously ratified the concept of affirmative action in graduate school admissions, "To get beyond racism, we must first take account of race."

The most conservative justices rallied around the opposite view. To get beyond racism, they contended, it was essential not to perpetuate a 200-plus-year mistake of letting government classify individuals according to race. Under their reading of the equal protection clause, the Constitution morally demanded colorblindness.

Kennedy struggled to find a middle ground. Although uncomfortable with affirmative action (and disdainful of Richmond's program, which the court struck down), Kennedy, siding with the majority, rejected the argument that the Constitution categorically bars government from using race-conscious means to achieve such compelling policy objectives as remedying past discrimination. With respect to affirmative action, Kennedy suggested, the Constitution's answer was not "never" but "almost never."

Eighteen years later, on the eve of the court hearing its first set of affirmative action cases under Chief Justice John G. Roberts Jr., the battle over racial preferences continues. On the federal level, former President Clinton's "mend it, don't end it" approach remains essentially in place, though in several states, California and Michigan most notably, anti-affirmative action forces have imposed their version of colorblindness.

Inside the court, although some of the players have changed, the justices remain deeply divided about the means for achieving racial equality. And Kennedy has become even more pivotal to the fate of affirmative action.

Since Croson, the Supreme Court has upheld only one race-based program. Three years ago, to the surprise of many court watchers, it upheld the University of Michigan Law School's program for using race as one non-predominant factor in admissions. Split 5 to 4, the court condemned racial quotas (as it had in Bakke) but ruled that the school's "holistic" one-factor-among-many approach was a barely permissible way to advance what school officials had identified as the compelling interest in maintaining diversity in their classrooms.

The Michigan case, however, preceded Justice Sandra Day O'Connor's retirement. She had provided the fifth vote (together with Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer) to uphold the law school's use of race as a plus in admissions.

Few expect O'Connor's replacement, Justice Samuel A. Alito Jr., to follow her lead. From his days in the Justice Department of the Reagan administration, Alito has been a firm opponent of affirmative action. And much the same can be said of Roberts, who took over after William H. Rehnquist's death and is thought to share his predecessor's affinity for colorblindness.

As a consequence, all eyes are on Kennedy. In voting to strike down the Michigan Law School's admissions program, he again rejected the standard of pure colorblindness and endorsed the idea that schools could seek racial diversity through a narrow, only-as-a-last-resort program of racial preferences. In his view, however, Michigan had failed this stringent test -- just as every other affirmative action program had since Croson.

The critical question is whether the programs challenged in the cases scheduled to be heard this week can somehow meet Kennedy's thus-far unmeetable standard.

These cases concern the efforts of two public school districts -- one in Seattle and another in Louisville, Ky. -- to achieve a reasonable level of racial diversity in their classrooms while also allowing students to attend either neighborhood schools or schools of their choice.

High school students in Seattle initially get to select which of the district's 10 schools they want to attend. Race comes into play when the school district evens out enrollment among oversubscribed and undersubscribed schools, with the goal of keeping the racial makeup of each school within 15% of the district's overall racial makeup. To achieve this, the district uses race as one of several "tie-breaking" factors in reassigning students.

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