U-M
race policy declared illegal U-M
race policy declared illegal
Bollinger calls ruling 'an American tragedy'
Max Ortiz / The Detroit News
ANN ARBOR -- A federal judge ruled as unconstitutional Tuesday the University of Michigan Law School's use of race in admissions, a decision that conflicts with other rulings and likely will land at the doorstep of the U.S. Supreme Court.
The university said it would immediately ask to delay Judge Bernard Friedman's order to stop using race as a criterion, and appeal the case to the 6th U.S. Circuit Court of Appeals.
There, it will join a case decided in December with a different outcome: Judge Patrick Duggan ruled that the university's undergraduate admissions policy, which also considers race, was legal.
Friedman's conflicting opinion on Tuesday -- that it is unconstitutional for the law school to consider the skin color of applicants -- reflects the growing split in courtrooms and boardrooms across the country about how far institutions can go to promote diversity.
Lower courts regularly disagree over whether classroom diversity is a constitutional reason to use race preferences, said Doug Kmiec, a constitutional law professor at Pepperdine University.
"It's very likely that we're going to see this resolved only by the Supreme Court," Kmiec said.
Friedman's ruling, which followed a bench trial that ended last month, only adds to the contradictory case law.
"Whatever solution the law school elects to pursue, it must be race neutral," Friedman wrote. "An admissions policy that treats any applicants differently from others on account of their race is unfair and unconstitutional."
U-M President Lee Bollinger, who has staked his professional reputation on winning the right to use race in admissions, predicted a setback for equality unless the ruling is reversed. "The selective institutions and individual law schools will experience a precipitous decline of racial and ethnic diversity. This is an American tragedy," Bollinger said.
It is a victory for Barbara Grutter, the 47-year-old Plymouth Township mother of two whose 1997 suit claimed she would have been granted admission if not for the school's preference for minorities with lower qualifications.
"I have known all along that discrimination is wrong. I didn't need a judge to tell me I was right," she said. "But it doesn't mean I wasn't so happy and thrilled that he did."
If the ruling holds, she stands to gain admission to the law school and, perhaps, monetary damages.
In this and the separate case challenging U-M's undergraduate admissions policy, the university has argued that affirmative action is needed to maintain a diverse student body, and that diversity improves the quality of a student's education.
The school has sought to increase the numbers of law students who are African American, Mexican American, Native American and Puerto Ricans reared in the United States -- minority groups that traditionally score lower than whites or other minorities on the Law School Admissions Test and carry lower undergraduate grade point averages.
Friedman said the university's desire to maintain a diverse student body may be laudable and provide educational benefits, but it doesn't rise to the necessary level of a "compelling state interest" -- and therefore race should not be used to give minority students an edge. The Plaintiff Barbara Grutter, whose 1997 suit against U-M sparked the ruling, said she didn't need a judge to tell her she was right The Defendants Liz Barry, U-M's lawyer, said an appeal will be filed in U.S. District Court "as soon as we can get it written." University of Michigan President Lee Bollinger said unless overturned, the ruling will be a setback for equality.
Friedman found that the law school relied on an unwritten policy to maintain a "critical mass" of minority students of between 11 percent and 17 percent -- in essence, a quota.
His 90-page opinion also said the policy was too vague and "places a very heavy emphasis on an applicant's race in deciding whether to accept or reject."
Split decisions
Depending on the outcome of U-M's request to delay Frieman's order from taking effect, the decision puts the university in the unusual position of using race in undergraduate admissions but barring it from Law School admissions.
In December, Friedman's colleague, Judge Duggan, deemed the university's undergraduate admissions process constitutional, because it uses a well-defined point system when considering race.
In that system, applicants got an extra 20 points on a 150-point scale. Applicants who reached 110 points were usually admitted.
Duggan also ruled that the school's earlier undergraduate admissions standards amounted to illegal racial quotas, a victory for the original plaintiffs in that case.
Just a few weeks earlier, the 9th U.S. Circuit Court of Appeals ruled in a Washington state case that the Washington Law School acted legally when it considered race in admissions. But that policy was abandoned because voters banned affirmative action programs in that state in 1998.
Elsewhere, the federal appeals court over Texas tossed out race-based admissions at Texas universities five years ago, in a case filed in 1992 and still pending in the courts.
The split decisions rely heavily on the Supreme Court's landmark, but ambiguous and complicated 1978 ruling in Regents of the Univ. of California vs. Bakke. The 5-4 Bakke ruling allowed race to be considered in university admissions, but outlawed quotas. The court split 5-4 in the decision, and the majority offered different opinions and rationales on using race, so legal scholars and judges still differ on what that decision requires.
While putting his own spin on the Bakke case, Friedman nevertheless sided with the Texas ruling and against his colleague who handled the other U-M case, noted Eugene Volokh, a constitutional law expert from the University of California-Los Angeles.
"This is a reminder that there's still some uncertainty" about Bakke, Volokh said. "It's an interesting question, which way the 6th Circuit is going to jump." Detroit attorney Reginald Turner agreed.
"The majority of courts in this nation that have reached this decision have upheld that diversity is a compelling government interest," Turner said. "In the Bakke case, the U.S. Supreme Court upheld it and that is the law of the land."
Because of the uncertainty over Bakke and the solidarity of both the university and the plaintiffs, many expect the nation's highest court to reconsider the U-M cases.
Student outrage
On campus Tuesday, Friedman's decision was met with outrage from a group of minority students who argued that U-M's consideration of race is necessary to rectify the past injustices of discrimination -- an argument the judges in both U-M cases rejected.
Farah Mongeau, a member of the Black Law Students Alliance at U-M and one of a group of minorities involved, fears for new minority applicants.
"I can't believe this!" cried the third-year U-M Law School student. "Oh, my God. We have to do something."
The ruling was nearly as shocking to the Center for Individual Rights, the group that pressed both cases against U-M on behalf of plaintiffs. "We are gratified," said Curt Levey, a spokesman. "This is better than what we had hoped for."
His group was pleased that Friedman not only said diversity is not a compelling government interest, but also criticized U-M's policy for not finding the least discriminatory way to attain diversity.
"He went as far as he could go," Levey said.
U-M's Bollinger is ready to go even further.
It is not time to give up. It is too soon to give up," Bollinger said. "Our history has too many moments where we gave up too soon. This is not the moment to give up."
Detroit News staff writer Oralandar Brand-Williams contributed to this report.
You can reach Janet Naylor Vandenabeele at (313)222-2039 or jnaylor@detnews.com.
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