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Affirmative Action Hearing Held; UMich Seems Favored

By Linda Greenhouse

THE new york times -- washington

Opponents of affirmative action came to the Supreme Court on Tuesday to make an absolute case against race-conscious government policies but found the justices impatient with absolutes and hungry for nuance.

Prepared to argue the merits of the color-blind principle, the opponents found the justices more concerned about a world where color still matters and where senior military officers describe affirmative action as essential for national security.

By the end of two hours of fast-moving and sometimes surprising arguments, it appeared to many in the packed courtroom that affirmative action would survive its most important test in 25 years and that colleges and universities would still be able to take steps to ensure the presence of more than token numbers of minority students on their campuses.

Whether the precise programs the University of Michigan was defending on Tuesday would survive their encounter with a more conservative Supreme Court than the one that endorsed the use of race as a vague “plus factor” in the Bakke case 25 years ago was uncertain. The university’s undergraduate admissions program gives an automatic 20 points on a 150-point scale to applicants who are black, Hispanic, or American Indian. The highly selective law school does not use a formula, but regularly admits students from those three groups who have lower grades and test scores than many white student it admits.

During the arguments on Tuesday, Justice Anthony M. Kennedy, a regular opponent of affirmative action, criticized the undergraduate formula as a “disguised quota” and expressed doubts as well about the law school’s program. But then, late in the second hour, Kennedy asked a question that was potentially one of the most significant of the entire argument.

Addressing John Payton, the lawyer who argued in defense of the undergraduate admissions program, Kennedy asked Payton to assume that the court would invalidate both affirmative action plans. What would happen then, Kennedy asked. Would it be the court’s job to tell the university what to do or the university’s job to devise an admissions program that relied more on “individualized assessment?”

What was important about Kennedy’s choice of words was that he said “individualized assessment” and not “race-neutral approach,” the formulation urged by the lawyer for the disappointed white applicants who are suing the university and by the Bush administration, which entered the case on their behalf. An individualized assessment presumably permits consideration of race as one of the elements in an applicant’s personal profile, as a race-neutral approach would not.

The Bush administration is arguing that the Michigan programs are unconstitutional because the university has failed to show that it cannot achieve diversity by means of a race-neutral alternative, such as a plan in use at the University of Texas, which offers admission to students graduating in the top 10 percent of every high school in the state.

There was almost no discussion in the courtroom on Tuesday of the 10-percent alternative. Instead, the justices consumed much of the time allotted to Solicitor General Theodore B. Olson in firing questions about a brief filed in support of Michigan by a group of retired senior military officers and former military academy superintendents.