U-M
law school wins race case U-M
law school wins race case
Appeals court upholds admissions policy 5-4
By Jodi S. Cohen / The Detroit News
Wednesday May 15, 2002
ÊANN ARBOR -- A divided federal appeals court ruled Tuesday that the University of Michigan Law School can consider race in admissions, setting the stage for what could be the first U.S. Supreme Court ruling in 25 years on affirmative action in the nation's universities.
In the 5-4 reversal of a lower court decision, the 6th U.S. Circuit Court of Appeals declared that U-M can consider an applicant's race because "the Law School has a compelling interest in achieving a diverse student body."
Lawyers on Tuesday began drafting an appeal to the high court on behalf of plaintiff Barbara Grutter, an unsuccessful white law school applicant who contends she was discriminated against in favor of less-qualified minorities.
Educators, legal scholars and affirmative action advocates are closely watching the case because many universities use similar admission policies. The nation's courts have issued conflicting opinions on their constitutionality, meaning an applicant's race can be considered when applying to colleges in some states but not in others.
The 6th Circuit also is considering a second case challenging U-M's undergraduate admissions policy. A decision in that case is expected soon.
The two U-M cases, if heard by the Supreme Court, would allow the justices to review and reconsider the confusing 1978 Bakke decision, which struck down racial quotas but allowed the use of race as one of the many factors in deciding college admissions.
"This case will provide the Supreme Court with the opportunity, 25 years after Bakke, to clarify whether race may be used as a factor in deciding questions of admissions," said University of Detroit Law Professor Larry Dubin.
The appeals court Tuesday said that U-M can consider an applicant's race in putting together its law school class because of the compelling interest in a diverse student body, a position U-M officials have defended since the case was filed Dec. 3, 1997. The school has spent millions to defend the use of affirmative action in admissions.
The 94-page opinion also found that U-M does not illegally set aside seats for underrepresented minorities -- African-American, Native-American and Hispanic students -- because "the Law School has no fixed goal or target" for the number of minority students it admits. Between 1993 and 1998, enrollment of minority students ranged from 13.5 percent to 20.1 percent, and minority students made up 12.5 percent of the 360 students in last fall's freshman class, said Law Dean Jeffrey Lehman.
"It's an extremely important victory not just for Michigan and higher education but really all sectors of society," said former U-M President Lee Bollinger, who decided that the school would put unlimited dollars and other resources toward defending the two lawsuits. Even with the victory, Bollinger still hopes the Supreme Court hears the U-M case and decides whether a diverse student body is a justified reason for affirmative action.
"A victory is worth keeping, but it is also the case that society has agonized over this issue for many years now," said Bollinger, a legal scholar and now president at Columbia University in New York. "If I were a justice, I would want the court to speak to this issue."
Lawyers for Grutter, a 48-year-old mother from Plymouth Township denied admission to the Law School in 1996, hope the court will hear the case. If it doesn't, all states in the 6th Circuit -- Kentucky, Tennessee, Ohio and Michigan -- can continue to use affirmative action in law school admissions.
Terence Pell, executive director of the Washington, D.C.-based Center for Individual Rights, the law firm representing Grutter, said the appeals court wrongly decided that U-M's admissions system is different from the one the Supreme Court struck down in 1978.
"I have anticipated from the beginning that this would have to go to the Supreme Court and today's decision just takes us one step closer," Grutter said.
Split decision
The case was heard last December by all the 6th Circuit's nine active judges. Six were appointed by Democratic presidents and three by Republicans.
The judges ruled that the law school policy is legal because it is similar to one approved in the Regents of the University of California vs. Bakke decision that outlawed quotas but allowed race to be used as a factor in admissions.
Both sides were appealing U.S. District Court decisions from Detroit. One judge upheld the undergraduate policy, saying that attaining a diverse class is an acceptable reason for affirmative action; another Detroit judge rejected that argument, ruling that the law school policy was unconstitutional.
The majority appeals court opinion, written by Chief Judge Boyce F. Martin, relied on U.S. Supreme Court Justice Lewis Powell's opinion in the Bakke case that having a diverse student body at the college level is a sufficient reason for affirmative action.
The judges did not explain why diversity remains a compelling state interest today, but instead relied on the 1978 opinion as reigning law.
The four dissenting judges, led by Judge Danny Boggs, wrote a lengthy, harshly worded opinion saying the U-M policy is a "straightforward instance of racial discrimination."
"Michigan's plan does not seek diversity for education's sake," Boggs wrote. "It seeks racial numbers for the sake of the comfort that those abstract numbers may bring. It does so at the expense of the real rights of real people to fair consideration."
Experts said the decision may bode well, at least in part, for U-M in the undergraduate case, where lawyers are defending a policy that gives a 20-point boost on a 150-point scale to underrepresented minority students. If applicants reach 110 points -- including on other factors such as grade point average, standardized test scores and whether their parents are alums -- they are likely admitted.
"It seems to me that the 6th Circuit will be consistent in permitting race to be used as a factor for the undergraduate school as well," said Dubin, the University of Detroit law professor. "Now whether the court needs to tinker with the actual selection process used by the undergraduate school or not remains to be seen."
The point system may prove troublesome. "There is a mechanical aspect of the affirmative action program in the undergraduate case that is still potentially a source of trouble," said Temple University Associate Dean and Professor Mark Rahdert. "It would be possible for the court to rule ... that the undergraduate affirmative action program was not sufficiently individualized."
The majority opinion did not address the claim of the intervening student defendants, a group of high school and college students who argued that affirmative action is needed to compensate for racial bias in standardized tests and discrimination against minorities.
Still, the intervenors celebrated Tuesday's decision with the Rev. Jesse Jackson, who spoke at Cass Technical High School in Detroit and later at the U-M campus.
"The decision today is a major positive step toward inclusion," said Jackson, whose trip to Michigan was previously planned. ÊÊÊ Nasty jabs
The appeals court judges wrote seven separate opinions, and some opinions were laced with unusually nasty jabs at other judges about the internal workings of the court. In his dissent, Judge Boggs wrote that the majority's decision was the result of political maneuvering and manipulation.
Boggs contended that the court didn't follow correct procedure when the three-judge panel that was to initially hear the case delayed asking other judges whether it should be heard by the full court. The judges waited, he claimed, until two conservative judges left the bench.
Judge Karen Nelson Moore criticized Boggs' dissent as "nothing short of shameful," saying it "will severely undermine public confidence in this court."
That divisiveness reflects the muddy national legal landscape on affirmative action. Experts say the U-M case has the trial record, briefing and lengthy opinions from the circuit court that may make it attractive to the Supreme Court.
In the meantime, Tuesday's appeals court decision will most affect students such as Esther Haley, a University of Virginia undergraduate student and African-American who was visiting the U-M Law School on Tuesday because she's considering applying there. She looked at the bulletin boards for the Asian-Pacific Law Students Association, the Muslim Law Students Association, the Native American Law Students Association and the Black Law Students Alliance.
"This is obviously representative of what the university values," Haley said.
"It says something about the future, too," said Donald Haley, her father. "We want to see society represented."
Detroit News Staff Writer John Bebow contributed to this report.
You can reach Jodi S. Cohen at (313) 222-2269 or jcohen@detnews.com. You can reach John Bebow at (313)222-2548 or jbebow @detnews.com.
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