AFFIRMATIVE
ACTION: Ruling lets U-M's law school use race factor AFFIRMATIVE
ACTION: Ruling lets U-M's law school use race factor
Appellate decision sets stage for possible Supreme Court hearing
May 15, 2002 BY MARYANNE GEORGE, PEGGY WALSH-SARNECKI AND ERIK LORDS
FREE PRESS STAFF WRITERS
With a narrow appeals court victory Tuesday, the University of Michigan law school won the right to continue considering race in its admissions policies as the school braces for a likely appeal to the U.S. Supreme Court. On Tuesday, the U.S. 6th Circuit Court of Appeals in Cincinnati ruled U-M's law school admissions policy is legal.
The decision overturned one made in March 2001 when U.S. District Judge Bernard Friedman ruled that the policy relied too heavily on race and that diversity, although a laudable goal, was not a compelling state interest. In December 2000, U.S. District Judge Patrick Duggan ruled that the current policy is legal. But he ruled that a previous policy, which set aside seats for minorities from 1995 to 1998, was illegal.
He also ruled that diversity is a compelling state interest that justifies the use of race. WHAT'S NEXT Attorneys for plaintiff Barbara Grutter plan to appeal to the U.S. Supreme Court. They have 90 days to file a request to appeal, which would need approval by four of the nine Supreme Court justices.
Meanwhile, the U.S. 6th Circuit Court of Appeals is expected to rule soon on the undergraduate admissions policy. By Maryanne George and Peggy Walsh-Sarnecki If the high court agrees to hear the case, the outcome could affect college admissions policies across the country. On Tuesday, the U.S. 6th Circuit Court of Appeals in Cincinnati ruled 5-4 that the race-conscious admissions policy at U-M's law school is legal.
The decision reversed a March 2001 ruling by a federal district judge in Detroit. "We find that the law school has a compelling state interest in achieving a diverse student body," the appeals court wrote in its opinion. The court cited testimony from school officials, saying the testimony assured them that, "In considering race and ethnicity, the law school does not set aside or reserve seats for underrepresented minority students."
A decision on U-M's admissions policy for undergraduate students is pending in the same court and a decision is expected soon. U-M had argued that race is one of many factors in its admissions process and that diversity improves the education of all students. The university had spent millions of dollars defending that argument since the case was filed in 1997. "This is a great day for the University of Michigan and all of higher education," said Marvin Krislov, U-M general counsel.
"The court recognizes that diversity brings benefits for majority and minority students. The court recognizes that diversity is a compelling state interest and that our policy is narrowly tailored to achieve that interest." But the university's victory could be short-lived. Kirk Kolbo, an attorney representing Barbara Grutter, who sued the U-M law school in 1997, said the decision will be appealed to the U.S. Supreme Court.
"I've 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. Kolbo said he was optimistic that the high court would take on the issue. "Today's 5-4 decision shows how closely divided the court is on this issue. The only place that this issue can be decided is the Supreme Court."
As in Michigan, similar cases in other states have resulted in rulings by lower courts that conflict with each other. Because appeals of differing decisions in cases in Georgia, Texas and Washington have either been refused by the Supreme Court or abandoned by the universities, the U-M law school case stands a better chance of being heard by the U.S. Supreme Court, legal scholars say.
Judge Danny Boggs, who wrote the dissenting opinion, blasted the law school admissions policy as "a straightforward instance of racial discrimination. . . . Even a cursory glance at the law school's admissions data reveals the staggering magnitude of the law school's racial preference. "Michigan's plan does not seek diversity for education's sake.
It seeks racial numbers for the sake of the comfort that those abstract numbers may bring." Some U-M students applauded the appeals court decision. "I thought it was fair and that the lawsuit was ridiculous to begin with," said Bisera Vlahovljak, a psychology major from Detroit. "I believe in the positive benefits of diversity, and how it can enhance our education. It's essential."
But James Justin Wilson, editor of the Michigan Review, a conservative student publication, criticized the ruling Tuesday. "I think it's an injustice," said Wilson. "Affirmative action is racism in action." The lawsuit against the law school was filed Dec. 3, 1997, by Grutter, 48, of Plymouth Township, who claimed she was denied admission in favor of less-qualified minorities.
A similar lawsuit against U-M's undergraduate admissions policies was filed on Oct. 14, 1997, by Jennifer Gratz and Patrick Hamacher. The court is considering that case but did not release a decision on it Tuesday. A ruling is expected soon. In both cases, the plaintiffs are represented by the Center for Individual Rights, a public interest law firm in Washington, D.C.
The two cases were consolidated by the appeals court and oral arguments were heard Dec. 6 by the court's entire nine-judge panel. It was the first university admissions case to be heard by a full panel. Similar cases in Texas, Washington and Georgia were heard by three-judge panels. Six of the judges hearing the U-M cases were appointed by Democratic presidents, three by Republicans.
In Tuesday's decision, Judge Ronald Gilman, who was appointed by former President Bill Clinton, joined in the dissent with judges Eugene Siler and Alice Batchelder, who were appointed by former President George Bush. Boggs was appointed by former President Ronald Reagan. In the majority were Chief Judge Boyce Martin Jr., Martha Craig Daughtrey, Karen Nelson Moore, R. Guy Cole Jr. and Eric Clay.
At the district court level in Detroit, two judges reached opposite conclusions on two U-M cases. U-M essentially won in the undergraduate case, while the plaintiffs succeeded in the law school case. Last year, the high court refused to hear an appeal of a U.S. 5th Circuit Court of Appeals in New Orleans ruling that disallowed the use of race as an admissions factor at the University of Texas law school.
In 1996, the court also refused to hear the same case, known as the Hopwood case. The high court also refused last year to review a decision by the U.S. 9th Circuit Court of Appeals in San Francisco that upheld the use of race in admissions and affirmed diversity as a compelling state interest at the University of Washington law school. The 11th U.S. Circuit Court of Appeals in Atlanta last August struck down the use of race in admissions in a University of Georgia case. However, university officials decided to change the admissions policies rather than appeal the case to the high court.
Resolving conflicting rulings by appeals courts is one reason the high court may decide to hear a case. Even so, the court agrees to hear only about 2 percent, or 140, of the approximately 7,000 cases submitted to it each year. Legal scholars say they hope the high court will review the U-M cases to clarify its 1978 Bakke case ruling that said race could be used as one factor in admissions. U-M uses race as a factor in deciding whom to admit,with the goal of diversifying its student body, which it says benefitsall students.
This year, U-M received 24,511 applications for about 5,300 seats in its fall freshman class, according to U-M data. At the law school, there were 5,260 applications this year for about 361 seats, according to law school data. Minority students represent about 23 percent of the total enrollment of 1,098 students.
But lawyers representing the three white students who sued U-M say race is used as a determining factor and white students are denied admissions in favor of less-qualified minorities. John Payton, lead counsel for U-M in both cases, lauded Tuesday's decision. "It clearly vindicates what we've been saying about the educational mission of the law school," he said.
A key factor in U-M's victory was that the court found the law school admissions policy agrees with the Bakke decision and is precisely tailored to meet that criteria -- using race as only one factor to meet the goal of diversity, said Robert Sedler, Wayne State University law professor.
Ted Shaw, associate director of the NAACP Legal Defense and Eduational Fund, who represents student intervenors in the undergraduate case, said the appeals court ruling that Bakke is binding and diversity is a compelling state interest could mean the judges will reach the same conclusion in the undergraduate case.
A decision on that case is expected soon. Shaw said Tuesday's ruling also sets up clear appeals issues for the Supreme Court. "What's at stake here is the extent to which African-American, Latino and other minority students have access to highly selective universities, graduate and professional schools," Shaw said.
Contact MARYANNE GEORGE at 734-665-5600 or mageorge@freepress.com
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