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September 02, 2003 - Image 43

Resource type:
The Michigan Daily, 2003-09-02

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The Michigan Daily - New Student Edition - Fall 2003 - 11C

Continued from Pge 4C
"We do not find it necessary to
decide whether Justice Powell's opinion
is binding," O'Connor wrote in the
court's majority opinion. "Today we
endorse Justice Powell's view that stu-
dent body diversity is a compelling state
interest that can justify the use of race
in university admissions."
Although the question of whether
diversity is a compelling state interest
- meaning that diversity in and of
itself is a justifiable reason for taking
race into account - has finally been
put to bed, legal experts said only time
will tell whether lawsuits like those
against the University's admissions poli-
cies will lay to rest, and for how long.
"Whether there are going to be law-
suits in the future depends on the people
who are going to file them. I think for
the moment anyway, the lawsuits chal-
lenging diversity are doomed to fail in
the Supreme Court," said University of
California at Los Angeles law Prof.
Kenneth Karst. "But individual schools
have different programs ... the more
(the system) looks like a quota, the less
likely it is to succeed."
Experts added that so long as univer-
sities and colleges review an applicant's
entire file on a case-by-case basis, they
should not be targets of lawsuits.
"The court gives fairly clear guidance
about what you have to do to avoid lia-
bility in such lawsuits," Cole said.
"There is a road map there. As long as
universities follow that road map, I

don't think they should fear a large
number of lawsuits."
Time and a change in the court's
structure could change that, however.
Three of the justices - Rehnquist,
O'Connor and John Paul Stevens -
are older than 70, and media reports in
the last several months have men-
tioned the possibility of some retire-
ments, including Rehnquist and
O'Connor, the authors of yesterday's
two majority opinions.
If it takes place while a conservative
president is serving, a retirement by any
members who concurred with O'Con-
nor - a list that includes Stevens -
could change the nature of the court.
But experts could not say when or how
the court's makeup will be changing in
the near future.
"I think it's predictable that Justice
Stevens will not be retiring ... they may
have to carry him out of there," Karst
said. "Justice O'Connor, when she
wrote her book, dedicated it to her
clerks, past, present and future."
"People are going to be encouraged
to bring lawsuits if they think that
there are going to be people who are
receptive at the top of judicial sys-
tem," he added.
Exactly how long race-conscious
admissions policies will thrive is any-
one's guess, and the court's opinion
included its own based on the success
of the last 25 years: another 25 years.
Since 1978, Karst said not only have
the numbers and percentages of admit-
ted minorities increased, but the num-
bers and percentages of successful

minorities and minority leaders has
risen as well. The idea of diversity has
also spread outside of education,
including into businesses and the mili-
tary, he added.
"If the minority community is
going to be providing half your legis-
lature and half your community lead-
ers, it's essential that they are educated
at the best schools, and the court
picked up on that," Karst said. "Of the
people who actually have to run an
institution, there is hardly anybody
who thinks they can do it without
diverse leadership,"
But in the opinion, O'Connor wrote
that she believes the Law School and
other higher education institutes will
eventually stop using race totally.
"We take the Law School at its word
that it would 'like nothing better than
to find a race-neutral admissions for-
mula' and will terminate its race-con-
scious admissions program as soon as
practicable," the opinion states. "It has
been 25 years since Justice Powell first
approved the use of race to further an
interest in student body diversity in the
context of public higher education.
"Since that time, the number of
minority applicants with high grades
and test scores has indeed increased.
We expect that 25 years from now, the
use of racial preferences will no
longer be necessary to further the
interest approved today," the opinion
went on to say.
Experts said the figure is not bind-
ing, and that it will depend on where
the country is in 2028.

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