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WASHINGTON –The U.S. Supreme Court gave a surprising and historic embrace to the concept of affirmative action in university admissions Monday, dashing the hopes of the Bush administration and conservatives that racial preferences would come to an end. Writing for the 5-4 majority in Grutter v. Bollinger, 02-24, Justice Sandra Day O’Connor said the court, in upholding the University of Michigan Law School’s race-conscious admissions policy, was endorsing Justice Lewis Powell Jr.’s view in Regents of the University of California v. Bakke 25 years ago that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” But she set limits. Affirmative action programs must be narrowly tailored and of limited duration. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she said in announcing the decision from the bench. Minutes later, Chief Justice William Rehnquist read from his separate 6-3 majority opinion in Gratz v. Bollinger, 02-516, striking down Michigan’s undergraduate admissions program as “not narrowly tailored,” in part because it gives an automatic 20 points for minorities toward the 100 points needed for admission. The court in Gratz tasked higher education with the requirement that race be considered only as part of an “individualized review” of applicants — a burden that universities said in advance would be too costly, but on Monday seemed ready to shoulder. “The fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system,” Rehnquist wrote. Though described by Justice Antonin Scalia as a “split double-header � perversely designed to prolong the controversy and the litigation,” the decisions left supporters of affirmative action far more elated than disheartened — mainly because of O’Connor’s unequivocal endorsement of affirmative action. Theodore Shaw, associate director of the NAACP Legal Defense and Educational Fund, who argued in support of Michigan’s undergraduate program before the Sixth Circuit U.S. Court of Appeals, was smiling as he emerged from the courtroom Monday. “This was the best we could hope for from this court,” Shaw said. “I am happy.” “A majority of the court has firmly endorsed the principle of diversity,” University of Michigan President Mary Sue Coleman said outside the court. “This is a resounding affirmation that will be heard across the land from our college classrooms to our corporate boardrooms.” Crowds of students and advocates on both sides of the issue gathered outside the court to react to the long-awaited ruling. “I wanted to be able to tell my grandkids that I was here on this Monday,” said Jazlyn Bradley, senior English major at UC-Berkeley. Opponents of affirmative action were angry at the rulings, which turned out to be more supportive of affirmative action than they were expecting. “Diversity is no excuse for racism,” read one sign held by a University of Michigan student outside the court. “Racial preferences in post-secondary education make us think that we are solving that problem when in fact it is growing. For that reason, this decision is a tragedy for all Americans,” said Clint Bolick, vice president of the Institute for Justice. But Curt Levey, spokesman for the Center for Individual Rights — which represented white applicants Barbara Grutter, Jennifer Gratz and Patrick Hamacher — saw the pair of rulings as a partial win. “We were hoping the court would say you can never use race,” Levey said. “But narrowing its use is a hell of a lot better than where we were before.” President Bush also viewed the rulings positively, as a vindication of his stance that racial quotas are unacceptable. “Like the court, I look forward to the day when America will truly be a color-blind society.” But in Monday’s ruling, Justice O’Connor said that, for now, racially conscious policies are still necessary. “Effective participation by members of all racial and ethnic groups in the civil life of our nation is essential if the dream of one nation, indivisible, is to be realized,” she wrote in Grutter. “The law school has determined, based on its experience and expertise, that a critical mass of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.” O’Connor was joined in the majority by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Rehnquist, in his majority opinion in the undergraduate admissions case, cautioned that embracing that goal does not mean that “a university may employ whatever means it desires � without regard to the limits imposed by our strict scrutiny analysis.” The dissenters in Grutter — Justices Clarence Thomas, Antonin Scalia and Anthony Kennedy — joined Rehnquist in Gratz, as did O’Connor and Breyer. Breyer wrote a brief concurrence in Gratz, but did not explain his dual votes. It was striking that the decisions in the affirmative action cases, the target of a record 107 amicus curiae briefs, were read by Rehnquist and O’Connor, the two justices viewed as most likely to announce retirements as soon as this week. The historical sweep of O’Connor’s decision, looking back and forward 25 years, came across to some in the audience as a possible capstone for her 22-year career on the court. The court will wrap up the current term’s work Thursday, Rehnquist announced from the bench — setting the stage for a dramatic day in which the court will likely hand down decisions in the gay rights case Lawrence v. Texas and the commercial speech case Nike v. Kasky. And if any justice is going to announce a departure, Thursday would likely be the day. The narrowness of the Grutter ruling was fodder for those who worry that a single change in the court’s composition could reverse major doctrines. “This decision � points to the importance of one vote on the Supreme Court to protect important constitutional rights for all Americans,” said Wade Henderson, executive director of the Leadership Conference on Civil Rights. “Balance on the court must be maintained. We hope President Bush is listening.” The Grutter ruling was a personal win for Latham & Watkins D.C. partner Maureen Mahoney, who argued in the case on behalf of the university and who was in the courtroom to hear the decision handed down. “This is a huge victory,” she said. “The court has given all schools a program that they’ve upheld. Justice Powell finally got his majority.” She acknowledges it will be hard for undergraduate colleges to follow the dictates of Gratz, yet adds that “it can be done.” But a significant role was also played by an amicus brief singled out by O’Connor in both her oral presentation of the decision and in her written text. The brief, signed by 29 current and former top military and Pentagon officials, argued that affirmative action programs at the military academies and at colleges with ROTC programs are “essential to the military’s ability to fulfill its principal mission to provide national security,” by supplying a diverse officer corps to the armed services. The brief was written by Virginia Seitz, a D.C. partner at Sidley Austin Brown & Wood, and organized in part by former Army Undersecretary Joe Reeder, managing partner in Greenberg Traurig’s D.C. office. “These officers were Republicans and Democrats, Army, Navy, Air Force and Marines, and they don’t usually file lawsuits,” Reeder said Monday. “But they stood up and spoke out, and that’s impossible to ignore.” The affirmative action rulings were also a substantial vindication for the gamble taken by the University of Michigan in defending its programs in the face of near-certain defeat or curtailment, given the court’s increasing disdain for affirmative action shown in other cases. “The University of Michigan Law School should be lauded for taking on this fight,” said Urban League President Marc Morial. The decisions also represented a defeat for Justice Clarence Thomas, whose passionate opposition of affirmative action failed to sway O’Connor, long viewed as the swing vote in the case. In an angry dissent, the court’s only African-American justice attacked the majority for giving universities 25 more years to use race-based preferences. “The Constitution means the same thing today as it will in 300 months,” said Thomas. Citing sources ranging from abolitionist Frederick Douglass to recent research, Thomas argued that racial preferences do minorities no favors, instead stigmatizing them and even harming their education. He dismissed preference programs as “racial aesthetics,” adding in a footnote, “The law school wants to have a certain appearance, from the shape of the desk and tables in its classrooms to the color of the students sitting in them.” Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times. His e-mail address is [email protected]. Legal Times reporter Marie Beaudette contributed to this report.

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