Affirmative action survives close Supreme Court vote

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The Independent US

Affirmative action in the US survived one of its most important challenges in decades yesterday when the Supreme Court limited but upheld the right of a university to tilt its admissions policy towards students from racial minorities.

The 5-4 ruling, the most keenly awaited of the court's current session, was the climax of a six-year legal battle that began when two white students sued the University of Michigan after being rejected from its most prestigious Ann Arbor campus in favour of ethnic minority students who had inferior grades.

The thrust of the decision, which slightly curtailed the positive discrimination applied by the university, reflected the rightward shift in the court since the heyday of such policies in the 1960s and 1970s. It also indicated the broader national mood, which is disappointed that racial preferences have not cured one of America's most pernicious social ills.

Essentially, the nine justices handed down a split decision, endorsing the principle, but rejecting specific mechanisms that critics said amounted to "quotas". It was legitimate, the judges found, for a university to work to achieve a "critical mass" of minority students.

But in a separate second judgment, they struck down as unconstitutional a points system used by the university for undergraduate admissions, under which belonging to a racial minority counted for more than writing ability and various other measures of academic excellence.

For that reason, the outcome will not end the national debate on a practice that is ingrained in almost every field of national life. As Justice Antonin Scalia, the intellectual leader of the conservative bloc at the Supreme Court said, the ruling "seems perversely designed to prolong the controversy". Although technically confined to the admissions policy of a public university, the repercussions will be felt by private colleges, corporate America, throughout the public sector and in the military - all of whose recruiting policies are affected, to varying degrees, by affirmative action. Many companies, as well as the Pentagon, had filed specific briefs to the Supreme Court, urging the policy not to be thrown out completely.

As so often in important court rulings in recent years, the decisive swing vote came from Sandra Day O'Connor, who was appointed by Ronald Reagan in 1981 and who reportedly may announce her retirement after the summer recess begins next week.

In December 2000, for example, she sided with the Supreme Court's four habitual conservatives to order an end to the Florida vote recounts, and in doing so handed the presidency to George Bush. This time, however, she joined the liberal bloc to prevent the total outlawing of affirmative action. Clarence Thomas, the court's lone black justice, but whose opinions closely follow those of Justice Scalia, voted with the minority.

Yesterday's decision - the most far-reaching for positive discrimination in a quarter of a century - thus raises the stakes even further in the prospective battle over the successor to the Justice O'Connor, 73, should she decide to step down.

In this particular case, the Bush administration sent Theodore Olson, the Solicitor General, to argue in support of the white students. The narrow margin by which affirmative action was deemed to be constitutional will make liberals only more aware that, if President Bush manages to secure the confirmation of a conservative of his choice, the very principle of racial preferences could be overturned by a future court.

Both sides are already staking out their positions ahead of the expected showdown on the Senate Judiciary Committee, which holds confirmation hearings for high-court nominees.

Senior Democratic senators have written to Mr Bush, urging him to consult them before his choice of any justice. But the White House has responded coolly. Administration officials say the manoeuvre is solely designed to enable the President's opponents to claim, in the event of an all-out clash, that they had offered an olive branch which was rejected by the White House.

With the conventional political struggle in the US in effect deadlocked between two evenly balanced parties (as shown by the 2000 election split), the Supreme Court has become the battleground par excellence for the culture wars between liberals and conservatives. A clear conservative majority in the future could threaten not only affirmative action but also the 1973 Roe vs Wade ruling, which enshrines a woman's abortion rights.