Supreme Court hears first challenge to using race in college admissions

WASHINGTON -- The Supreme Court heard its first challenge in a generation to using race in the college admission process Tuesday as two of its centrist justices emerged as the most conflicted members of the high court.\nJustices Anthony M. Kennedy and Sandra Day O'Connor expressed consternation about the role affirmative action should play in American life.\nIn a courtroom filled with cultural icons and political dignitaries who came to witness the historic arguments, both justices expressed strong doubts about the assertions -- made by white students who were rejected by the University of Michigan -- that race is an impermissible factor for colleges to consider.\nBut Kennedy and O'Connor also asked pointed questions of the university's attorneys about whether Michigan's programs go beyond legality and how long they might need to be in place.\nO'Connor's varying points of view on the issue have been discussed almost since the suits were filed, and many have considered her to be the key vote in the court's decision. Kennedy's past opinions suggest that he might be less on the fence about these issues but also open to changing his mind.\nMany think the court's opinion might unfold around the pair's middle-ground positions because the other justices are so firmly divided. And some court watchers said Tuesday that Kennedy and O'Connor's struggle reflects a deeper tension on the court in its desire to deal with race discrimination, to ensure academic freedom and to practice judicial restraint.\n"They've got to look at all of those principles and try to balance them in this decision," said Victor Bolden, a New Haven, Conn., lawyer who filed a brief supporting the university on behalf of several black mayors. "They need a way to be able to look at these policies without getting too entangled in the educational process or to be second-guessing decisions made by educators."\nKennedy also seemed to be searching for a way to balance those interests late in the arguments. If the justices struck down Michigan's policies, he asked, would the responsibility for devising a better plan fall to the courts or the university?\nThe cases, which separately challenge Michigan's use of race in its undergraduate and law school admissions, mark the first time since 1978 that the high court has considered such an important affirmative action case. The justices will make their decision by July.\nKirk Kolbo, an attorney for plaintiffs Barbara Grutter and Jennifer Gratz, didn't get through more than a few paragraphs in his argument before O'Connor jumped in with several crucial questions. O'Connor first challenged Kolbo to establish how he could prove that race -- and not some other factor -- prevented his clients from being accepted to the university, and then moved to his claim that race can never be used in admissions.\n"You have some precedents out there that you have to come to grips with, because the court obviously has upheld the use of race," in certain contexts, O'Connor said. "You're speaking in absolutes, and it isn't quite that."\nKennedy then broke in with several inquiries that questioned whether the small number of minorities on campus was a legitimate concern for universities to try to correct.\n"So if year after year after year there's an under-representation, there is no cause for the state or the government or its educational experts to be concerned?" Kennedy asked incredulously. "I should think that's a very legitimate concern on the part of the state"