12 - The MichiganDaily- Friday, February 6, 1998

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By Katie Plona and Peter Romer-Friedman
Daily Staff Reporters

In the coming months, the eyes of lawyers,
legislators and educators across the nation
will focus on two lawsuits that challenge
the use of race in the University's admissions
policies. If either lawsuit reaches the U.S.
Supreme Court, it would mark the first high court
decision on affirmative action in higher educa-
tion in more than 20 years.
This potentially policy-changing case began
when the Center for Individual Rights filed a
class-action lawsuit against the College of
Literature, Science and the Arts this past October
on behalf of white applicants Jennifer Gratz and
Patrick Hamacher, who claim they were denied
admission to LSA because of their race. CIR filed
a second suit in November against the
University's Law School claiming that Barbara
Grutter was rejected for the same reason.
The final rulings, which could do anything
from reaffirm the use of race in the admissions
process to end affirmative action programs in
higher education, could have wide-ranging
effects not only on the University of Michigan,
but on public colleges and universities across
the country.
Setting the stage for afirmnative action
History Prof. Nicholas Steneck, editor of
"The Making of the University of Michigan", a
definitive University history book written by
Howard Peckham, said that since before the
turn of the century, the University has aimed to
create a diverse student body. The first black
student came to the University in 1868.
"The University, always as a public university
in one way or another, has been committed to
diversity," Steneck said. "We're a big place and
we've served a lot of people."
In former
University President

ty when the Supreme Court decided that separate
was not equal in the 1954 Brown verdict, which
banned segregation in all public schools.
"People didn't think more in terms of affir-
mative action, but more in segregation and dis-
crimination," said John Norton, a political sci-
ence professor at Lebanon Valley College in
Annville, Penn., who specializes in affirmative
action topics.
The CI1 Rights Movement
While the '50s saw the end of legal segrega-
tion, the '60s brought forth a nationwide Civil
Rights Movement that resulted in executive
orders and Congressional acts that set the stage
for affirmative action. The'work, of the federal
government, coupled with student activism across
the country, brought race into the national spot-
light.
"President Kennedy was the first one to use
the phrase affirmative action," said history Prof.
Sidney Fine. "That's the first time it appeared."
Fine, who began teaching at the University in
1948, said University students sparked important
changes that swept through the entire nation.
"Our students, including a lot of white college
students, did go south to secure voting rights,"
Fine said. "In one of the freedom rides, one of
the captains was a U of M student."
Congress began drafting legislation to increase
the rights of minorities with the Civil Rights Act
of 1964. One year later, the Voting Rights Act
made it easier for black voters to exercise their
constitutional right.
In addition to these civil rights advance-
ments, Johnson issued an executive order in
1965 that required federal contractors to "take
affirmative action" in hiring practices.
Garry Hays, president
of the United States
International University
9 p in San Diego, said that
Wd a lot of although affirmative
action originated in the
1960s, the practice was
expanded during the
rof. Nicholas Steneck '70s.
University Historian "It was in the mid '70s
that we required every
school to set goals and
timetables to bring more women and minorities
into the universities," Hays said.
One year after former President Richard Nixon
announced a plan to set up goals and timetables
to achieve diversity in the workplace, students
and faculty at the University started the Black
Action Movement of 1970 to convince
University administrators to increase the number
of minorities at the University and improve their
resources on campus, said Residential College
Director Tom Weisskopf.
Weisskopf said the momentum that BAM
gained on campus during the late '60s and early
'70s marked the push for affirmative action at
the University and followed a national wave of
activism to make educational opportunities
more inclusive.
"That was kind of the first major step to
increase diversity on campus," Weisskopf said.
BAM led a series of campuswide strikes in
which students of all races participated, Fine said.
"The strikers urged the students not to go (to
class), and students did not go," Fine said. "I
taught my own class, and I had massive atten-
dance until I was shouted down. There was a
huge picket line outside."
Psychology Prof. Peter Weston, who was a

6
6

MARGARET MYERS/Daily
Members of the Coalition to Defend Affirmative Action By Any Means Necessary protest a hearing held last September by state Sen. David Jaye (R-
Macomb) and state Rep. Greg Kaza (R-Bloomfield Hills), two of the four legislators who spearheaded the lawsuit challenging LSA admissions policies.

6
S

m

James Angell's 1879 W r a b
c omme n ce me nt
address, titled "The W
Higher Education: A we Ye S6FV4
Plea for Making It O ' !
Accessible to All,"
Angell stressed the - P
importance of creat-
ing educational
opportunities for all
students - regardless of their race, gender or
socio-economic status.
"The most democratic atmosphere in the world
is that of the college. There all meet on absolute-
ly equal terms," Angell said. "Nowhere else do
the accidents of birth or condition count for so
little."
Provost Nancy Cantor has referred to Angell's
address in her own speeches, citing it as evidence
of the University's continuing commitment to
combining diversity and education.
"I think it's just a terrific example of a long-
standing legacy here," Cantor said. "The real sig-
nificance is to remind us not to get tunnel vision
for the modem era."
Although affirmative action programs were
not started until the '60s, years of court battles
throughout the 20th century have focused on
eliminating legal discrimination.
In the '50s, the U.S. Supreme Court did not
permit the "separate but equal" doctrine of Plessy
v. Fergiuson , established in 1896, to set the legal
precedent. In two cases - Sweatt v. Painter and
Brown v. Board of Education - the court issued
mandates to desegregate public education.
As the early civil rights movement got under-
way, the nation moved one step closer to equali-


graduate student and activist during the BAM
movements, said the movement was the culmi-
nation of major national events, including the
1968 assassinations of the Rev. Dr. Martin Luther
King, Jr. and Attorney General Bobby Kennedy,
the Vietnam war and a rising concern about racial
issues.
"I think '68 was the defining year," Weston
said. "After 1968, the attention of the country
shifted to the plight of black Americans, espe-
cially. After '68, the country began to say,
'there's really something very wrong here in
terms of civil injustice."'
BAM and activism on campus
After BAM I, the University and the nation
began to take greater steps toward achieving
equality by offering minorities scholarships and
actively recruiting minority students. The
activism produced clear and definite results by
allowing more minority students, according to
Peckham's book, to attend the University, said
John Matlock, assistant vice provost and director
of the Office of Academic and Multicultural
Initiatives.
"I certainly was a beneficiary of BAM I
because it was those students who put the issue
on the burner, in pushing to have more African
American students and faculty on campus,"
said Matlock, a University alumnus.
"The University made a commitment to do that
and I was a beneficiary to come here," Matlock
said. "I'm not sure if I would have had that oppor-
tunity if BAM hadn't put the issues on the table."
In 1969, the U.S. Department of Health,
Education and Welfare accused the University of
discriminating against minorities in its hiring
practices and demanded that the University
develop an affirmative action program,
Peckham's book said.
The University responded with a number of
measures, including hiring Nellie Varner to direct
its new Affirmative Action Programs. Varner
later served on the University's Board of Regents.
But in 1978, the Supreme Court decision in
Bakke v. The University of California at Davis
Medical School sent shockwaves across institu-
tions of higher education, declaring that the
University of California Medical School at Davis'
use of racial quotas violated the 14th Amendment,
a provision in the California State Constitution
and Title VI of the Civil Rights Act of 1964.
Much like the complaints of the plaintiffs in
the two pending lawsuits against the University,
Alan Bakke's lawyers argued that UC-Davis'
admissions policies had discriminated against
him on the basis of race.
The court's ruling was split 4-4-1 and there-
fore did not set legal precedent. Justice Lewis
Powell's single opinion was used as a compro-
mise between both sides, stating that race may
be used as only as one of many factors to com-
pensate for past discrimination.
Although Bakke posed a challenge to affrma-

tive action programs, it did not end the fight for
diversity, Hays said.
"Affirmative action continued to thrive after
Bakke," Hays said. "Universities have contin-
ued to take into consideration various factors
including race. Bakke didn't preclude it.
(Bakke) addressed how, in some cases, we
could go about remedying the past."'
Several years after the Bakke opinion, activism
at the University resurged, forming a third BAM.
By 1985, minority enrollment had tapered off
after years of rising and a new wave of campus
activism began, Peckham's book reported.
Weisskopf said racial problems at the
University received national attention, eventually
drawing the Rev. Jesse Jackson to campus to
mediate conflicts between BAM activists and
then-University President Harold Shapiro. After
much discussion, the University adopted the Six-
Point Plan, which promoted a wide-scale effort
to once again increase diversity on campus.
This plan eventually grew into the Michigan
Mandate, which was established in 1987 as a part
of former University President James
Duderstadt's vision.
Duderstadt said the University significantly
increased the number of minority students and
faculty through this initiative.
"Minority enrollment doubled, graduation
rates for minorities doubled, minority faculty rep-
resentation doubled," Duderstadt said. "It was
successful beyond our wildest dreams."
The courts and legislatures look closer
Despite the expansion of affirmative action
programs within higher education, the Supreme
Court has not accepted any cases since Bakke
regarding the use of race as a factor in the
admissions process.
But recently, a circuit court ruling in Texas
and a voter referendum in California have
eliminated the use of affirmative action in
admissions in the states' universities.
In the same vein as Bakke, Hopwood v. the
state of Texas brought the use of race in admis-
sions process into the spotlight by eliminating the
University of Texas Law School's use of race as
a factor in admissions.
The Hopwood appellate court ruling bans the
use of race as a factor in admissions to public
universities in Texas, Louisiana, Arkansas and
Mississippi.
"Texas had two separate categories for blacks
and whites," said Fine, who defended the
University's admissions policies. "We've made
race a factor, but not the factor. My guess is that
(one of the lawsuits filed against the University)
will go to the Supreme Court."
In a 1996 election, California voters adopted
Proposition 209; which bans the use of race in all
state programs including state university and hir-
ing practices. That vote complemented a
University of California Board of Regents deci-
sion in the previous year to ban affirmative action

"Whatever be the
method of endowment of
our great schools, may
the ca never come when
the s all be inaccessible
to the humblest youth in
whom God has lodged
the divine spark of
genius, or that more com-
mon but sometimes not
less serviceable gift of
useful talent."
- Excerpt.from 1879 University
of Michigan commencement
speech by Janes Angell, the
University's third president
in university admissions procedures.
The Future of Affirmative Action
With the latest outcomes in Texas and
California, scholars contend that affirmative
action is on a downfall, pointing to the
University's lawsuit as the final precedent that
may eliminate affirmative action altogether.
"If it gets to the Supreme Court, I think
Michigan's policy is very vulnerable to be struck
down as unconstitutional," Norton said.
Hays, who has observed a decrease in the num-
ber of minorities in the California state school
system since Proposition 209, said people are too
dedicated to diversity to let a Supreme Court rul-
ing resegregate schools.
"My guess is if the decision is against Michigan,
they will find other ways to address inequities,"
Hays said. "There are a lot of people in leadership
positions who will not roll over and give up."
Although it would take years before either of
the lawsuits against the University could reach
the Supreme Court, speculation as to how the
court's nine justices may view the case are
already circulating throughout academia.
"You have essentially three blocks, a conserv-
ative block led by (Chief Justice William)
Renquist, a middle block led by (Justice Sandra
Day) O'Connor and the .more recent liberals like
(Justice Ruth Bader) Ginsburg," Norton said. "I
think the person to watch is Sandra Day
O'Conor. She is very influential in that middle
block."
Fine said the Supreme Court's decision not to
take on the Hopwood case in 1996 was a clear
indication that it might overturn the Bakke ruling
if a University suit goes to the top.
"In not picking up (Hopwood) it cast
some doubt on how it was going to stand on
Bakke," Fine said. "In rejecting it, they
raised the question as to whether Bakke was
still valid."

6

Jennifer Gratz, one of two students challenging the admissions policies of the School of
Literature, Science and the Arts in a lawsuit, speaks with her lawyer, Terry Pell.

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