Affirmative Action on Trial Affirmative Action on Trial
Law school policy defended
By Jodi S. Cohen
The Detroit News
January 19, 2001
DETROIT -- In the early 1990s, Lee Bollinger knew the federal government was investigating at least one discrimination claim against a law school's admissions policy. He didn't want the same to happen at the University of Michigan, where he was law dean.
He instructed the faculty to scrap the existing policy, which included a special admissions program for minority students, and design one that could withstand potential legal challenges.
"In general, I knew that there were issues about taking race into account," Bollinger, now U-M's president, testified Thursday in U.S. District Court in Detroit.
"It was my responsibility to make sure we focused as closely and seriously as we could to make sure we were fully in compliance with the Constitution and the law."
Bollinger, a lawyer and educator, became the school's first witness in a federal class-action trial that could force U-M -- and possibly every public college nationwide -- to scrap affirmative action admissions policies.
And the 14-page policy Bollinger commissioned almost a decade ago is now at the center of a legal struggle that could change the lives of generations of college students.
Bollinger said that while the policy says race can be considered, it doesn't allow for minority student quotas, which the U.S. Supreme Court found illegal in 1978.
On cross-examination by plaintiff attorney Kirk Kolbo, Bollinger often said he couldn't recall conversations with former admissions dean Allan Stillwagon about the old admissions policy or minority numbers at the school.
Stillwagon testified Monday that he and Bollinger talked about whether U-M could admit more minority students without lowering academic standards at the U-M Law School.
It has graduated prominent alumni, including Los Angeles Mayor Richard Riorden, criminal defense lawyer Clarence Darrow and former Michigan Bar President Robert Webster.
"Concerns of racial and ethnic diversity are part and parcel, are integral, to a greater admissions policy, which includes a core interest in diversity," Bollinger said after he testified.
Bollinger, who has been U-M president since February 1997, was a U.S. Supreme Court clerk before joining the U-M law faculty. He never practiced law.
U-M sociology and law professor Richard Lempert, who chaired the faculty committee that designed the policy in 1992, testified Thursday about the role race plays in admissions decisions and the benefits that diversity brings to a law class.
Lempert, a faculty member for 32 years, explained that the committee dropped an earlier draft of the admissions policy that set percentage goals for minority admissions.
"We wanted to avoid any suggestion of quotas or ceilings or floors," he said.
Lempert mentioned a class on dispute resolution when explaining the benefits of enrolling students from a variety of backgrounds.
When he asked the class to offer disputes from their own lives, a doctor said he was being sued for $250 million and an older student.
"That is the kind of thing you can do ... when you bring in people with diverse backgrounds," Lempert said.
Lempert said race might tip the balance in favor of a minority applicant, but all students have a chance to get into the school. But he further said the policy calls for admitting a "critical mass" of minority students.
Attorneys for the plaintiff, a 1997 unsuccessful white applicant, said that while diversity might be a laudable goal, it is illegal to discriminate.
They produced admission grids that showed a minority applicant who wasn't from Michigan had a better chance of getting admitted than a white or Asian student from Michigan.
"Do you believe that each year, there are Asians and/or white applicants who are rejected by the University of Michigan Law School, but who, had their skin color or ethnicity been the only change in their application, they most certainly would have been admitted?" plaintiff lawyer Larry Purdy asked Lempert.
"It would not surprise me," Lempert said, "that it would have made a difference."
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