Affirmative action debated; Judge hears arguments from U-M lawyers,
critics Affirmative action debated; Judge hears arguments from U-M lawyers,
critics
DETROIT FREE PRESS
November 17, 2000
BY MARYANNE GEORGE and ERIK LORDS
DETROIT FREE PRESS EDUCATION WRITERS
U.S. District Judge Patrick Duggan said Thursday that he might be able to decide one of two legal questions in the University of Michigan affirmative action case -- whether the value of diversity justifies the school using race as a factor in admissions -- without a complete trial. Duggan made the statement after two hours of arguments in a crowded Detroit courtroom. However, he said that a trial might be needed to decide whether U-M's alleged history of discrimination against minorities justifies affirmative action.
A trial on just one issue could mean a shorter, more focused proceeding than has been expected. U-M has said it would call many witnesses to prove that students learn more by attending a diverse university. Two white students filed a lawsuit against U-M's undergraduate admissions policies in 1997, charging that they were denied admission in favor of less-qualified minorities. The purpose of Thursday's hearing was to hear whether a trial is needed. The arguments were a microcosm of what a trial would be.
There are three sides in the class action -- the two people who sued, the university and the intervenors, a coalition of minority students and civil rights groups who petitioned to bring their own defense of affirmative action. The intervenors are known as Citizens for Affirmative Action's Preservation. Duggan originally denied their motion to intervene in the case, but the U.S. 6th Circuit Court of Appeals overruled him. All three sides agree race is a factor in U-M admissions but differ on whether its use is constitutional. Kirk Kolbo, a lawyer representing the two students and the Center for Individual Rights, argued that U-M has a double standard that systematically gives preference to minorities.
"We are not opponents of diversity, but we argue that this does not justify discrimination," Kolbo told Duggan. "The university says it admits only qualified minority candidates, but they compete on different terms." John Payton, a lawyer representing U-M, told Duggan that the university should be allowed to consider race as one of several factors, including grade-point averages and test scores, because campus diversity improves U-M's academics. "There are white students who have not gotten into U-M and other white students with lower scores who have gotten in," Payton said. "Many students are not let in not because they are not qualified -- we simply didn't select them."
The intervenors argued that the history of discrimination at U-M justifies the use of race as a factor in admissions. U-M's admissions policy, which gives extra points to students whose parents are alumni and to those who attended top high schools, discriminates against minorities, said Ted Shaw, attorney for the intervenors. "There is a specific history of exclusion at U-M that only began to be addressed in the 1970s," Shaw said. "There are facts in dispute and this issue is too important to resolve without a trial."
Duggan asked Shaw if he would accept a decision in the case that would decide the discrimination issue without addressing the value of diversity argument. "Yes, it would be less than a complete victory," said Shaw, a lawyer for the NAACP Legal Defense and Educational Fund. "But it would be a victory we would take." The presence of the intervenors put U-M in the unusual position of having two defenses for its admissions system. But the fact that Duggan hinted he would rule on the school's diversity argument without a complete trial holds litle significance until he issues a ruling, according to Robert Sedler, a law professor at Wayne State University and expert in affirmative action cases.
Both CIR and U-M had asked for a ruling without a trial, and granting either request would not be unprecedented, Sedler said. Duggan's ruling, expected within a few weeks, holds the key to the case's future. If he buys U-M's diversity argument, he does not need to decide the discrimination argument, Sedler said. But if he strikes down the diversity argument he may need to grant Shaw's request for a trial to decide the discrimination question.
"Until we know what he says about diversity, we don't have a story," Sedler said. Attorney Godfrey Dillard,who also represents the intervenors, said the fact that Duggan may consider a trial on the discrimination argument gives their argument weight. The U-M case turns on a 1978 U.S. Supreme Court decision, known as the Bakke case, which permitted the use of race in admissions. Some of the justices accepted the past discrimination argument as a reason to consider race.
But one justice said the educational value of diversity justifies it. Duggan peppered Kolbo, Shaw and Payton with questions about how to balance the rights of white students in an admissions program that considers race as a factor. Duggan said Supreme Court Justice Lewis Powell, who wrote about the educational value of diversity as a justification for using race, considered the effect it would have on white students. "You've got to be awfully careful how we use it," Duggan told Payton.
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