U-M law school's
race policy rejected U-M law school's
race policy rejected
March 28, 2001
BY MARYANNE GEORGE and ERIK LORDS
FREE PRESS STAFF WRITERS
In a 90-page decision released Tuesday, Friedman rejected U-M's arguments that race was one of many factors used in admissions and said the law school's admissions policy overemphasizes race to attain the functional equivalent of quotas of minority students. "The evidence shows that race is not, as defendants have argued, merely one factor which is considered among many others in the admissions process," Friedman wrote. "The evidence indisputably demonstrates that the law school places a very heavy emphasis on an applicant's race in deciding whether to accept or reject." Barbara Grutter, who sued U-M in 1997 claiming she was denied admission in favor of less-qualified minorities, said she was gratified by Friedman's ruling.
"I am emotionally overwhelmed," said Grutter, 47, of Plymouth Township. "It's been so long, and finally there is a ruling. Clearly, the judge heard me." But U-M officials criticized Friedman's ruling and said they will file an appeal immediately with the U.S. 6th Circuit Court of Appeals in Cincinnati. An appeal in a separate undergraduate case has already been filed.
Liz Barry, U-M's deputy counsel, said U-M lawyers would also ask Friedman to stay his order that forbade U-M from using race in law school admissions. "We believe Judge Friedman's decision is wrong and flies in the face of over 20 years of U.S. Supreme Court law," Barry said. "The ruling is contrary to every selective university in the country."
U-M had argued that it was trying to build a critical mass of minority students so incoming minorities would feel at home on campus. But Friedman rejected U-M's definition of critical mass of minority students as an "amorphous concept" that cannot be quantified. He wrote that the school's unwritten policy of enrolling a minimum of 10-12 percent minority students "is practically indistinguishable from a quota system." "While the law school has not set aside a fixed number of seats, there is no principled difference between a fixed number of seats and an essentially fixed minimum percentage figure," Friedman wrote.
"Under either system, students of all races are not competing against each other for each seat, with race being simply one factor among many which may tip the balance." Friedman also rejected a landmark 1978 Supreme Court ruling in the Bakke case that said diversity in education is a compelling state interest. The diversity rationale has been used for more than two decades by select universities and colleges to justify the use of race in admissions.
In a similar case concerning U-M's undergraduate admissions policies, U.S. District Judge Patrick Duggan agreed with the Bakke decision and said the undergraduate admissions policy is legal. Making history The two cases are widely believed to be headed for the U.S. Supreme Court. Friedman's rejection of the diversity argument increases that chance, according to legal scholars. "The decision is exceedingly strong," said William Van Alstyne, a professor of law at Duke University.
"I think this is a judge who knew all the plausible arguments, heard them respectfully, but found them wanting. "The university fought this with staggering resources, and nearly the entire higher education establishment had lined up to defend the Michigan plan." Friedman also criticized U-M for failing to explain why it gave special considerations to certain racial groups, such as African Americans, and not to Arab Americans or those of Eastern European descent, and for failing to set time limits on the use of race as a factor in admissions. U-M also did not provide sufficient testimony about whether it had attempted to use race-neutral alternatives such as increased recruiting, decreased emphasis on grades and test scores or a lottery system to achieve diversity, Friedman said.
During oral arguments in December and throughout the 15-day trial in January and February, Friedman repeatedly asked witnesses for U-M whether there were other means of achieving diversity, questions that perhaps foreshadowed Tuesday's ruling. What's next Friedman ordered U-M to stop using race as a factor in admissions and ordered a hearing to consider damages in the class action, which could potentially include thousands of rejected applicants to the law school.
Robert Sedler, a Wayne State University law professor and constitutional expert, said Friedman's ruling applies only to the law school case. The appeals court will have to resolve the differing opinions between Duggan's and Friedman's rulings, he said. U-M President Lee Bollinger, who was dean of the law school when the admissions policy was drafted, said he is confident that the appeals court will overturn Friedman's ruling. "It's up to the Supreme Court to decide if we stay with Bakke or chart a different course,"
Bollinger said. "To change the course of constitutional law would be an American tragedy." Kirk Kolbo, an attorney for Grutter, said Friedman's ruling was a repudiation of U-M's admissions policy. "This decision is a powerful statement that people should be treated as individuals, not just members of racial groups," Kolbo said. "It's a clear repudiation of the university's argument that diversity can ever be used to engage in race discrimination.
It's also important that race-based double standards have been found wrong and illegal." Kolbo said thousands of non-minority students who applied to U-M law school and were rejected, beginning in 1995, could be owed monetary damages totaling millions of dollars if the ruling is upheld. But appeals could delay that for years. Miranda Massie, an attorney for minority students who intervened in the case, said Friedman's ruling distorted the evidence presented at trial about segregation and discrimination in education.
"It's an opinion for resegregation that will intensify existing unfairness
and inequality for black people and other minorities seeking access to higher
education," Massie said. "He engaged the evidence only enough to distort it
so that it could be used to support his pre-existing views." In rejecting the
intervenors' arguments that race is necessary to compensate for past discrimination,
Friedman wrote that such a rationale ignores a person's individual history.
Friedman acknowledged "the long and tragic history of race discrimination in this country," but said it did not justify the use of race in U-M's admissions. Minority students held a news conference on the steps of the Michigan Union at U-M to protest Friedman's decision. "To take away affirmative action will mean a return to separate but unequal," said Erika Dowdell, a third-year student at U-M and an intervenor in the case. Dowdell was the lead witness for the intervenors and testified about her struggle as a minority student at Cass Tech in Detroit and on U-M's campus. "There is no excuse for ignoring racism and segregation."
Contact MARYANNE GEORGE at 734-665-5600 or mageorge@freepress.com.
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