U-M goes to court today to defend its affirmative action; Admissions
outcome could set a precedent U-M goes to court today to defend its affirmative action; Admissions
outcome could set a precedent
November 16, 2000
BY MARYANNE GEORGE
DETROIT FREE PRESS ANN ARBOR BUREAU
In a downtown Detroit courtroom today, lawyers will clash. Principles will be on trial. And a possibly historic legal odyssey will begin. By the time the case ends -- quite possibly in the U.S. Supreme Court -- a lawsuit against the University of Michigan could determine whether the nation's public colleges can rely on affirmative action to give minority students a leg up in the admissions process. U.S. District Judge Patrick Duggan will hear arguments today on whether to decide the case -- filed by two white students against U-M's undergraduate admissions policies -- without a trial.
Duggan is expected to rule on the motions in a few weeks. If he orders a trial, one could begin in early December. Although other lawsuits have challenged the use of affirmative action in college admissions, the U-M case is unique in several ways. For the first time, a group of minority students has successfully petitioned to intervene as an equal party in defense of admissions policies. All three parties -- the plaintiffs, U-M and the group of minority students -- will present their sides and call witnesses. That means the plaintiffs have to grapple in court with two separate opponents -- the university and the group of students.
The lawsuit was filed in October 1997 on behalf of Jennifer Gratz, 23, now of San Diego, and Patrick Hamacher, 21, of Flint, who claim they were denied admission to U-M in 1995 and 1997, respectively, in favor of less-qualified minority students. Gratz and Hamacher were hand-picked as plaintiffs by the Center for Individual Rights, a law firm based in Washington, D.C., that has crusaded against using affirmative action in admissions. The case has been certified as a class action. Wilmer, Cutler & Pickering, another law firm based in Washington, is responsible for defending the University of Michigan, U-M President Lee Bollinger, former President James Duderstadt and the U-M Board of Regents.
The intervenors, called the Citizens for Affirmative Action's Preservation, or CAAP, is a coalition of minority students and civil rights groups. The coalition includes the National Association for the Advancement of Colored People Legal Defense & Educational Fund and the American Civil Liberties Union. The case's triangular nature gives U-M the luxury of presenting a novel defense. The minority intervenors will take the traditional approach -- that past and present discrimination at U-M justifies admissions policies that consider race. The university will focus on the results of affirmative action -- a diverse student body.
U-M lawyers say this will be the first time a university has gone to such great lengths to prove that diversity itself improves learning. In another extraordinary aspect, this is the first time a university has been subject to two lawsuits challenging its undergraduate and law school admissions policies simultaneously, according to Liz Barry, U-M deputy general counsel. The law school trial is set to begin in January. The detailed defense of diversity, the presence of the intervenors and the second lawsuit create the potential to take both cases all the way to the U.S. Supreme Court, observers say.
"This is an important case. They are not arguing abstractions this time," said Susan Low Bloch, a professor at Georgetown Law Center in Washington, D.C., and expert in affirmative action cases. Part of the university's strategy has been to show that there is a groundswell of support for the value of diversity. Over the past three years, U-M supporters including former U.S. President Gerald Ford and more than 20 Fortune 500 companies have written articles or filed supportive briefs on behalf of U-M. "Virtually every sector of society is saying diversity is important to us," Barry said.
Central to U-M's case is a study by University of Pennsylvania sociologist Thomas Sugrue. He found metropolitan Detroit is the second-most-segregated U.S. metropolitan area, after Gary, Ind., and getting more segregated. Also important to the case is a 20-year study by former Princeton University President Willam Bowen and former Harvard University President Derek Bok that found minorities who graduate from elite institutions made important contributions to society.
A third key is a finding by university psychology professor Patricia Gurin that students in diverse classrooms learn to think in deeper and more complex ways. The Center for Individual Rights has criticized the studies as flawed and says the briefs of support are just window dressing for a doomed argument. The center will base its challenge on analyses of U-M's admissions data and policies, which it claims shows discriminatory treatment of nonminority students.
At U-M, underrepresented minority applicants are given an additional 20 points toward admission, added to the 92 possible points for such aspects as grade point average and test scores. "They have two standards and only so many available spaces," said Kirk Kolbo, a Minneapolis attorney with the firm Maslon, Edelman, Borman & Brand, the center's lead counsel. "The majority students compete among themselves, and the minority students compete at a different and lower standard. U-M admits all qualified minorities. We say that's a double standard."
CAAP's most important piece of evidence is an analysis of 1995 admissions data showing that 46 percent of the 2,661 students admitted with grades and test scores lower than Gratz were white and only 27 percent were black, said CAAP attorney Godfrey Dillard. He claims the intervenors' discrimination argument is the one that wins such cases. He said U-M did not want to use it because it would have had to acknowledge past discrimination. "We have the case," he said. "There is 100 years of law to justify eradicating past and present discrimination."
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