High Court Hears Cases While Thousands Rally

WASHINGTON, D.C.--In a city that for weeks now has been riveted by the news from Iraq, all eyes turned yesterday to a battle much closer to home: the battle over the future of affirmative action.
Thousands of demonstrators lined the streets of the nation's capital not to protest the war, as they have regularly in recent weeks, but to show their support for affirmative action. Prominent politicians vied to reclaim not the mantle of Franklin Roosevelt, but the mantle of Dr. Martin Luther King, Jr. And the historical comparisons drawn throughout the city were not to My Lai and Munich but to Brown v. the Board of Education and Plessy v. Ferguson.

For two hours, the nine justices of the Supreme Court heard arguments for and against affirmative action in the oral arguments for two cases challenging the race-based admissions policies of the University of Michigan. One case deals with Michigan's undergraduate admissions policy, which gives applicants points for a variety of criteria, including race, while the other case deals with the policies at Michigan's law school, which has a less structured system that also considers race. The court is expected to rule in June.

Inside the Supreme Court, both sides tried to present themselves as the true defenders of Dr. King's legacy, and both sides argued that if the court ruled against them, it would be departing from years of Constitutional precedent. Speaking shortly after the hearings adjourned, Jennifer Gratz, the lead plaintiff in the undergraduate case, said she was trying to eliminate discrimination, just as the leaders of the civil rights movement did 50 years ago.

"I think that racial discrimination is wrong," Gratz told reporters on her way out of the court. "I think that diversity does benefit all students, but it's diversity of many kinds. ... A [system] based purely on skin color is wrong."

Defenders of Michigan's programs made a similar argument, but for the other side. As he has for years now, University President Lee Bollinger, the named defendant in the cases, argued that affirmative action is vital to upholding the court's ruling in Brown v. the Board of Education, the landmark 1954 ruling that declared "separate but equal" standards unconstitutional.

"The legacy of Brown v. the Board of Education, which has set an ideal for the society that's an integrated society, remains now a part of mainstream America," Bollinger said after the hearings. "Today's questioning from the bench about the importance of this to the military, about how this is important to society in all ways is really the critical point. ... It is the basis for the educational judgment that we need to prepare our students for this world."

Minority leaders came out in force yesterday to show that they supported Bollinger's version of King's legacy, not Gratz's. The chairs of both the Congressional Black Caucus and the Congressional Latino Caucus spoke in favor of affirmative action yesterday, as did Congresswoman Maxine Waters, Congresswoman Carolyn Kilpatrick, the Reverend Al Sharpton, and the Reverend Jesse Jackson, who said he would continue to fight "until the playing field is even."

If the pro-affirmative action side had a decisive edge in star power, it remained unclear yesterday which side had the advantage among the nine people who will actually decide the case. Going into today's hearings, most observers believed eight of the nine justices had made up their minds, four on one side and four on the other, with Justice Sandra Day O'Connor generally considered to hold the swing vote.

O'Connor gave little indication yesterday of which way she was leaning, but the court generally seemed tougher on the anti-affirmative action side. The justices pressed Solicitor General Theodore Olson on why several generals had filed briefs in favor of affirmative action, and Justice Anthony Kennedy, who is generally believed to oppose affirmative action, asked a question at one point that suggested he might be willing to support some sort of race-conscious policy, though most likely not Michigan's point-based system.

Advocates for both sides yesterday said they believed they had presented a strong case and expressed optimism about the outcome, but both stopped short of predicting victory.

"I think we made the argument we wanted and it went very well," said John Payton, one of the attorneys who argued the cases for Michigan.

Added University of Michigan attorney Maureen Mahoney, "I think the court was well prepared as they always are, but there's no way to predict [the outcome]."

"We had a good chance to make our arguments," said Kirk Colombo, who argued the cases for the Center for Individual Rights, the anti-affirmative action group that helped fund the lawsuits.

Outside the court, however, there was no question which side had the edge. Several thousand demonstrators--mostly college students from across the country--chanted, cheered, and held signs supporting affirmative action. Hundreds of students spent an unseasonably cold night outside the court to save places in line for coveted seats in the visitor's gallery, and by 7 a.m.--three hours before the court was scheduled to begin hearing arguments--students were gathering in front of the court to practice their chants.

There was no formal counter-protest, and only a handful of anti-affirmative action demonstrators were visible outside the court.

The protest was heavily, but not exclusively, made up of minorities and included students from as far away as Texas and California. It was generally orderly, with NAACP marshalls joining arms at the front of the rally to keep the demonstrators in check. A light rain fell at the height of the protest, but the weather was generally better than anticipated. Protesters chanted and cheered as they listened to speakers from a wide range of organizations, and though several speakers issued comments against the war in Iraq, most limited their statements to the topic at hand.

Some 60 busloads of protesters traveled from Michigan, many of them from the university, and many others from unions and other groups in Detroit. Another 3,000 students were from historically black colleges, including 1,000 from Howard University, the informal host of the rally.

"It's important to be here today because we're picking up and we're showing that we fight also," said Cornell Williamson, president of the Howard University student association. "We're picking up where our ancestors left off and fighting to get rights and equality for all minorities. ... When they say that this is the generation that doesn't fight, that doesn't care about the issues, this is living proof that we do care about the issues, that we do fight, and that we will take a stand."

About 300 Columbia students, including about 150 undergraduates and large groups from the law school and from Teachers College, also made the trip, meeting at 1 a.m. to drive down to the capital. One Columbia group held a poster showing Bollinger, dressed as a soccer goalie, kicking a ball labeled "Grutter" away from a goal. "Go Lee," read the sign, "Bollinger defends affirmative action."

Columbia students said they were proud of Bollinger's involvement in the case.

"I'm out here for future generations, for my sisters, for my children, so they can be as privileged as I am," said Mauricio Quezada, CC '05, a member of Columbia's Chicano Caucus. "I hope that the support that we show now will have a good effect in June."

Bollinger said he was glad to see so many students supporting affirmative action, and though he said he did not expect the protests to have much effect on the justices themselves, he said the show of support was nonetheless important.

"I think it makes a difference in the sense that it shows, visibly, support, and that matters in the United States," Bollinger said. "I don't think it matters in terms of the court's ultimate judgement, and we wouldn't want it to. That's the point of the rule of law.

Nevertheless, it's wonderful that people feel strongly about this in this way and want to show it."