Affirmative Action at Issue

WASHINGTON, Dec. 4-As the temperature spiraled into the low 20s and heavy winds whipped through Capitol Hill, a row of sleeping bags lined the Supreme Court's main entrance while students, professors, and activists waited to gain entry to the day's two oral arguments.

Several yards from queued bystanders hoping to witness the arguments-some of whom had arrived at 9 p.m. the night before to ensure a seat in court-at least a hundred student protesters from across the country gathered before dawn. Their rally would later be joined by members of several other organizations including the National Association for the Advancement of Colored People, the National Organization of Women, and the National Action Network.

Unlike the 2003 affirmative action rulings Grutter v. Bollinger and Gratz v. Bollinger, which dealt with college admissions at the University of Michigan, Monday's cases-Meredith v. Jefferson County Public Schools and Parents v. Seattle School District 1-involved subjects who are high school students or younger.

"I'm not concerned about sitting next to a white person in class," said Leonard Muhammad, a junior who serves as the Director of Public Relations for the Howard University Student Association. "I'm here not to protest, I'm here to show support. I think it's vital that we show solidarity."

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Others expressed concern that the two cases might present an opportunity for the 1954 Brown v. Board of Education ruling to be overturned.

"The legacy of the Brown [v. Board] decision has to be kept alive by allowing schools to fight segregation even when they're not under court order," said Marc Battle, assistant counsel to the NAACP and one of the first in line for a seat at the hearing.

"These are cases about the heart and soul of the Constitution. Are we going to take back Brown v. Board or are we going to stand by it?" said Alan Jenkins, a member of the Supreme Court bar who had flown down from Manhattan to hear the cases.

Inside the courtroom, justices heard oral arguments for the two cases. It quickly became clear that while both sought to question the constitutionality of allowing public school systems to use race as a primary criterion for admission, neither case was simply a matter of affirmative action.

"It [Brown v. Board] just absolutely hasn't worked," said Louisville attorney Teddy Gordon during the Meredith v. Jefferson County hearing. Crystal Meredith had filed the lawsuit because her son Joshua McDonald, a Caucasian, was denied admission to the kindergarten of due to a requirement that called for 15 to 50 percent of the student body to be Black.

"Why do we have to choose between diversity and educational outcome?" Gordon continued. "I thought it was supposed to be both ... It's not diversity or educational outcome. It's diversity and educational outcome."

"I think that's what your friends on the other side are arguing," said Justice David Souter to scattered laughter from the audience.

"How would you apply a holistic review to a kindergartner?" Justice Ruth Bader Ginsberg asked pointedly.

"They're looking at the very roots of education, and that's when minds are molded. That's when desegregation needs to start: in K-12, not just in law schools and universities," said attendee Jason Kaplan, a first year student at Vermont Law School who had studied the cases in his constitutional law class.

The debate also explored artificial diversification and whether school boards in Seattle and Louisville were driven by appropriate motives.

"Is there anything unconstitutional about desiring a mingling of the races and establishing policies which achieve that result but which do not single out individuals and disqualify them for certain things because of their race?" asked Justice Antonin Scalia. "Is there anything wrong with a policy of wanting to have racial mix?"

"The purpose of desegregation is for academic achievement, not socialization," said Ann Elmore, a member of the Louisville Board of Education. "And that's the most important thing to keep in mind."