U-M seeks delay, appeal in race ruling
U-M seeks delay, appeal in race ruling
Effect on current admissions process unclear; defense has cost more than $4.3 million so far.
Wednesday, March 28, 2001
By LIZ COBBS NEWSSTAFF REPORTER
Admissions to the University of Michigan Law School are on hold, at least temporarily, while U-M tries to persuade a federal judge to delay his ban on using race in the process. The university is expected to ask U.S. District Judge Bernard A. Friedman today for a stay that would stall implementation of a ruling he made Tuesday that struck down affirmative action procedures used by the law school. A stay would allow U-M to continue with the admissions process already under way for next fall's first-year law school class. It also would give U-M time to appeal to a higher court.
"At this stage, we aren't mailing out offers (of admissions) now," law school dean Jeffrey Lehman said in a telephone interview from California. "But we expect that by the time that we do, the judge would have granted our request." The law school already has mailed 850 offers since December, Lehman said, and applicants were asked to respond by mid-April. The vast majority of offers for the year have already been made, Lehman added.
Last year the law school received about 3,200 applications, approved 1,174 students and enrolled 365 in its first-year class. Larry Purdy, a lead attorney for the Center for Individual Rights, the Washington-based law firm that brought the suit against U-M, said this morning that CIR probably will file a response if U-M asks for a stay of Friedman's ruling. "I'm quite certain we won't agree with it," Purdy said. U-M President Lee Bollinger said U-M lawyers were analyzing Friedman's ruling but that the decision "has no immediate, practical impact" on the law school. However, Bollinger admitted, "If he denies our request, we have to abide by his ruling."
If Friedman grants the stay, the current admissions process will remain in place while U-M appeals to the U.S. 6th Circuit Court of Appeals, Bollinger said. Many observers have said the case, and a similar one against U-M undergraduate admissions, will be decided eventually by the U.S. Supreme Court. Bollinger, contacted Tuesday in California, said he believes Friedman's ruling in the law school case will be overturned on appeal. "Our policy is fully constitutional," he said.
"I remain as confident today as I was in 1992, when our policy was adopted, that pursuing educational excellence through diversity is a compelling governmental interest." CIR represented Barbara Grutter, a white woman denied admission to the law school in 1997. She claimed she was denied admission because the university's policy of using race creates a double standard that gives preference to minority students. The university maintains that legal precedent allows it to use race among several factors in deciding who is admitted. Grutter said this morning she was emotionally overwhelmed by the judge's decision. "It's been a long haul ... I know it's not over, but it brings some closure to me."
CIR's chief executive officer, Terence J. Pell, said Friedman's ruling affects more than just U-M. "The University of Michigan spent millions and millions of dollars assembling the best possible legal defense," Pell said. "For Judge Friedman to strike down the law school admissions system after all that money and time to the defense - that represents a huge shot across the bow for the entire higher education community." U-M has spent more than $4.3 million so far defending the law school and undergraduate lawsuits. A different federal judge ruled in December in favor of U-M in the undergraduate case, which is on appeal.
Liz Barry, U-M's associate vice president and deputy general counsel, said the $4.3 million cost doesn't include expenses since last April. "It's certainly been the most expensive defense the university has mounted," she said. "But if you want to do a good job, it's going to cost money." Olivia Maynard, D-Flint, a member of the U-M Board of Regents, said U-M needs to argue the case as long as necessary. "I think that it's important to defend a position and policy that we believe in," she said.
"I believe it is going to go (to the Supreme Court). We need to be there to defend it." Dave Brandon, R-Plymouth, acknowledged the steep cost, but said U-M must defend itself. "It's our responsibility to get high-quality representation and to vigorously defend our position, and that costs a lot of money." Miranda Massie, a Detroit attorney representing student intervenors who are co-defendants with the U-M in the case, said the intervenors also plan to file a notice of appeal next month with the Circuit Court of Appeals.
"As you read the opinion, it becomes clear there's no truth, no set of facts and no legal arguments that could have shaken Judge Friedman from his preconceived, highly ideological opposition to affirmative action," Massie said. Friedman noted in his 90-page decision that: * The university said it needed to use race in admission to achieve "a critical mass" of underrepresented minority students, yet "none of the witnesses was able to clearly define critical mass in terms of numbers or percentages." *
The law school has "made the current admissions policy practically indistinguishable from a quota system" by using race to make sure a certain minimum percentage of underrepresented minority students are enrolled. * There is no logical basis for the law school to have chosen the particular racial groups that receive special attention under the current admissions policy. The school mentions blacks, Hispanics and Native Americans as underrepresented minority groups ... "(C)ertainly other groups have also been subjected to discrimination, such as Arabs and southern and eastern Europeans to name but a few..."
* The law school "failed to investigate alternative means for increasing minority enrollment." Friedman also granted the plaintiff's request for money damages. The law school case, like the undergraduate case, is divided into two parts, liability and damages. Since Friedman found the U-M's Board of Regents liable in the case, the judge granted the plaintiff's request for monetary damages. Purdy said it will be up to the judge to decide when the damage phase of the trial gets under way.
Purdy said he suspects the damages part of the lawsuit will be on hold while the liabilty phase continues. Those applicants affected by the policy could be entitled to monetary damages, he said. Friedman denied the plaintiff's request to hold Bollinger, Lehman, and former admissions director Dennis Shields responsible for administering what the plaintiff considered an unlawful admission policy. Friedman's ruling contrasts the decision in the undergraduate case by U.S. District Judge Patrick J. Duggan.
Duggan ruled that "diversity, in the context of higher education, constitutes a compelling governmental interest under strict scrutiny." Duggan ruled that U-M's current undergraduate admissions policy is legal, though the methods used from 1995-1998 were unconstitutional. Both Friedman and Duggan were nominated by Republican President Ronald Reagan in the 1980s.
Wayne State University Law Professor Robert A. Sedler said the two rulings only affect U-M's affirmative action admissions policies and no other school. However, a decision by the federal Circuit Court of Appeals would affect schools in the U.S. 6th Circuit, which covers Michigan, Ohio, Kentucky and Tennessee.
"At some point, the U.S. Supreme Court will hear such a case but no one knows which case it's going to be," Sedler said. At a student-organized news conference outside the Michigan Union Tuesday, Agnes Aleobua, a student intervenor in the case, said she believes Friedman's ruling tells minority and women students who benefit from affirmative action that they should not be on campus.
"We just took a step back but we will not be deterred," said Aleobua, a 19-year-old sophomore from Detroit. "This decision is not going to withstand the scrutiny of the nation or the (U.S. Supreme) court." Reporter Geoff Larcom and The Associated Press contributed to this report.
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