Affirmative Action in Jeopardy ; Racial Preferences Are in Serious Legal Trouble after Losing Again in Court This Week, Leaving Their Status Murky

Article excerpt

Affirmative action - one of the most contentious issues in America for decades - is under siege as never before.

Years of litigation by groups opposed to the use of race as a consideration in school admissions or government contracts appear to have now cleared the way for a sweeping redefinition of how, or even whether, US institutions can pursue racial diversity.

Tuesday's ruling by a Detroit federal judge that the University of Michigan's use of racial distinctions in its law-school admissions policy is unconstitutional is only the latest in a string of complicated, and occasionally contradictory, legal decisions.

Taken together, they ensure that over the next year or two the nation's highest court will likely define new limits for the role of affirmative action in public life.

"This fault line is so severe that this question will have to end up at the Supreme Court," says William Van Alstyne, a law professor at Duke University in Durham, N.C.

The high court already took a step toward further refinement of affirmative action earlier this week, when it agreed to hear a challenge to a federal highway construction program that favors minority contractors.

The outcome of that case - which will be argued this fall - could well determine how far the US government can go in giving an edge to blacks or Hispanics in public works projects as a means to redress past discrimination.

It is also likely to show where the new Bush administration stands on affirmative action, as Attorney General John Ashcroft's Justice Department will be defending a program heavily shaped by Janet Reno and the Clinton administration.

Then there are the education lawsuits. The debate over race- conscious admissions policies is one of the most heated of all affirmative action subissues, as it involves children's futures. It has roiled college campuses from Berkeley to Austin and beyond.

The March 27 decision by US District Court Judge Bernard Friedman was only the latest in a string of rulings that have circumscribed university administrators.

"All racial distinctions are inherently suspect and presumptively invalid," writes Judge Friedman. "Whatever solution the law school elects to pursue, it must be race-neutral."

This position, however, is in direct contradiction with one of the few recent rulings to have upheld affirmation action - a decision by another judge of the same court that upheld the same university's undergraduate admissions process.

The two rulings will likely be combined into one, and pass through an appeals court ruling to eventual Supreme Court determination, say legal analysts. …