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Analysis: Justice Kennedy the key to campus affirmative action

U.S. Supreme Court Justice Anthony Kennedy testifies about judicial security and independence before the Senate Judiciary Committee on Capit
U.S. Supreme Court Justice Anthony Kennedy testifies about judicial security and independence before the Senate Judiciary Committee on Capit

By Joan Biskupic

WASHINGTON (Reuters) - When it comes to the use of race in U.S. academic admissions, Supreme Court Justice Anthony Kennedy stands alone. He has sided with conservative justices who want to curtail affirmative action, and has echoed liberals who want to ensure campus diversity.

The justice who could cast the deciding vote, Kennedy revealed concerns during oral arguments at the Supreme Court on Wednesday about the University of Texas' favoring of minority applicants. Yet he also suggested he was not ready to roll back affirmative action or reverse a 2003 landmark decision.

The tall bespectacled justice who sits to the left of Chief Justice John Roberts separated himself from fellow conservatives throughout the 80-minute session. While the others, particularly Justice Antonin Scalia, voiced aggravation and anger about the university's racial policy, Kennedy more steadily pursued questions of how race is used and when the desired diversity is achieved.

Kennedy was plainly trying to balance what he termed "this hurt or this injury" caused by screening applicants by race against the benefits in a university setting. It is difficult to predict how justices will rule from oral argument - and a decision could be months away - but the tone in the courtroom suggested Kennedy would again play a crucial role and may amend, not gut, rules for race-based admissions.

Wednesday's case has become the most closely watched of the current term, as the country stands divided over whether decades-old programs that give a boost to African-American and Hispanic applicants are still needed. In a sign of Kennedy's leading role on the question, lawyers for the university and challenger Abigail Fisher, the white student whom the university rejected, pitched much of their argument his way.

The last time the court ruled on affirmative action, in a 2003 case permitting it at the University of Michigan law school, Kennedy insisted that schools not turn to racial criteria without first exploring race-neutral alternatives to generate a diverse student population. He said race-based programs must be narrowly crafted to serve a compelling interest.

Fisher's lawyer contended on Wednesday that the University of Texas program was not so narrowly drawn and amounted to "an unchecked use of race." The university's lawyer countered that it used race as "only one modest factor."

Asking relatively few questions overall, Kennedy focused on how admissions officers monitored the numbers of minorities and how overriding racial criteria had been.

"So what you're saying is that what counts is race above all?" Kennedy asked Gregory Garre, lawyer for the University of Texas, after Garre said the school was seeking minorities from different backgrounds, disadvantaged and otherwise.

"What counts is different experiences," Garre answered, defending the program that weighs race along with individual achievement and experiences. It supplements a separate Texas initiative that guarantees admission to high school graduates in the top 10 percent of their schools.

University officials say that while the "Top 10" scheme brings in a significant number of Hispanics and blacks, it does not sufficiently diversify the state's flagship campus in Austin.

Only eight of the nine justices will decide the case. Justice Elena Kagan, a former U.S. solicitor general who was involved in an early stage of the dispute, was not on the bench. The remaining three liberals, Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, are likely to vote to uphold the Texas program based on their past opinions and remarks on Wednesday.

On the other side, given their views, Roberts and Scalia, with Justices Clarence Thomas and Samuel Alito will likely oppose it.

If Kennedy joins with the liberals, it would be a 4-4 tie to affirm a lower court decision that upheld the Texas program. If he sides with the conservatives against the university for a 5-3 majority, the crucial question would then be how far Kennedy is willing to go against racial admissions.

MAN IN THE MIDDLE

Kennedy, 76, has been in the middle of an ideologically polarized court since he arrived in February 1988, an appointee of Republican President Ronald Reagan. Over nearly a quarter century, Kennedy has voted mainly with a conservative bloc, but has swung left to uphold, for example, abortion rights and the privacy interests of gay men and lesbians. In most terms, he is the justice who most often casts the critical fifth vote in the hot-button, closely followed disputes.

Kennedy succeeded Justice Lewis Powell, who was the author of the 1978 opinion that first endorsed affirmative action. In that case of Regents of University of California v. Bakke, the court ruled that while universities may not use quotas, they may take a student's race into account as one of many factors.

In 2003, the Supreme Court endorsed the Bakke decision as it narrowly upheld affirmative action at the University of Michigan law school. Kennedy was one of four dissenters who thought the Michigan screening constitutionally flawed. Yet he wrote a separate opinion in Grutter v. Bollinger reiterating his approval of "appropriate consideration to race" in admissions.

Kennedy has taken a hard line against race-based policies in many contexts, for example, in the workplace, but declared the educational setting different. A native of Sacramento, California, Kennedy holds a bachelor's degree from Stanford University and a law degree from Harvard.

With the retirement of Justice Sandra Day O'Connor, author of the 2003 University of Michigan decision, and the court more conservative, Kennedy may be more ready to ensure that campus affirmative action survives. O'Connor, who left the bench in January 2006, was in the courtroom on Wednesday.

SO LITTLE BENEFIT?

Arguing Wednesday that the Texas approach failed to satisfy a compelling interest, Bert Rein, lawyer for Fisher, said the Top 10 policy brought enough diversity and that the additional race-based scheme added few additional minorities.

"If it's so few, then what's the problem?" Kennedy asked, then added, "Are you saying that you shouldn't impose this hurt or this injury, generally, for so little benefit?"

Yes, Rein said.

When the university's lawyer, Garre, was at the lectern, several justices tried to pin him down on the numbers of minorities admitted through the racial preference. The university does not have such detailed numbers, Garre said, suggesting it was trying to avoid rigid racial measures.

Yet the conservatives, particularly Roberts and Scalia, said that made it nearly impossible for judges to assess whether a program had gone too far and violated the Constitution's equality guarantee.

Referring to the terms of the 2003 ruling, Garre said judges should defer to a university's assessment of whether a "critical mass" of minority students has been reached.

"What, somebody walks in the room and looks them over to see who looks Asian, who looks black, who looks Hispanic?" Scalia said.

Kennedy's more tempered approached emerged in a 2007 case that was also raised on Wednesday. In that dispute involving Seattle public schools, Kennedy joined the four conservatives in rejecting student-assignment plans based on race to promote district diversity. But Kennedy separated himself from those four and wrote, "To the extent (their) opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view profoundly mistaken."

U.S. Solicitor General Donald Verrilli, who supported the University of Texas on Wednesday, referred to that Kennedy opinion.

"It is important ... not just to the government but to the country, that our universities have the flexibility to ... make a reality of the principle that Justice Kennedy identified in (the 2007 case), that our strength comes from people of different races, different creeds, different cultures."

(Editing by Howard Goller and Peter Cooney)

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