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LOCAL/S TATE fle vichigan y -Fiay, Novemer 7,
Students, activists protest outside courthouse

5

By Jon Fish
Daily Staff Reportck
DETROIT - As lawyers from the
three parties in the lawsuits challeng-
ing tne admissions policies for the
University's College of Literature, Sci-
ences and the Arts gathered for court-
room proceedings, eight floors down, a
group of more than 50 University
community members and students
"waited for the hearing to begin as well.
Toting signs and shouting for the
defense of affirmative action, the
group gathe:ed outside the Federal
'District Court in Detroit.
"Affirmative action in higher educa-
tion is a strategy that will help equal-
ize opportunity for underrepresented
minorities," said Andrea Lee, a sec-
ond-year Social Work student.
The students also demanded greater
student access to the proceedings by
having the case moved to Ann Arbor
"The whole outcome is going to
depend on students," said Shanta Dri-
ver, an intervenor in the Law School
case and a national organizer of the
Coalition to Defend Affirmative
Action By Any Means Necessary.

"I don't believe the judge can have a
sense of how important this case is and
the quality of the minority students at
Michigan, unless students are in the
courtroom," Driver said.
Students said they were concerned
the case, if brought to trial, would be
held in Detroit during exam times,
which would limit student presence in
the courtroom.
"I think it's ridiculous Judge
(Patrick) Duggan would try to hold
these trials during finals," said Agnes
Aleobua, an LSA sophomore.
"It's absolutely imperative that we
have the opportunity to participate in
these historic cases. What he's doing is
outrageous," said Aleobua, who is also
an intervenor and witness in the Law
School case.
But, greater than questions of
access, is whether or not there will be
a trial at all.
If Duggan issues summary judg-
ment, the case will be over at the dis-
trict level.
It has been made reasonably clear
by both sides that an appeal is likely,
no matter what the outcome of Dug-
gan's decision.

Protesters claim a trial is essential to
bring the issue of affirmative action to
a final and definitive conclusion.
"We need a full record on this case,"
Driver said.
Yesterday's demonstration was orga-
nized by students in the School of
Social Work, but members of BAMN
have said they plan to have as strong
of a student presence at the trials as
possible.
Shortly before the hearing began,
some students relinquished their signs
and bullhorns to enter the courthouse.
Because of the limited space in the
courtroom, students rotated their seats
in the visitors' gallery.
Mixed in the crowd of activists were
students from Michigan State Univer-
sity, who say students in East Lansing
are closely watching events in Ann
Arbor.
Michigan State freshman Katrina
TNaylor said students on the campus are
also planning to attend the trials if and
when schedules permit.
"We're intending to show (Duggan)
who he's affecting," said Taylor, who is
the leader of the Michigan State's
chapter of BAMN.

Luke Massie, an organizer with the Coalition to Defend Affirmative Action By Any Means Necessary, speaks to protesters
yesterday outside the federal courthouse in Detroit.

U,

pushes to avoid trial by jury

LAWSUIT
Continued from Page 1
legal counsel from the University and CIR
presented cases for why they felt Duggan
should rule in their favor without a trial.
Attorneys for the intervenors - which
includes the NAACP Legal Defense and Edu-
cation Fund, the American Civil Liberties
Union, the Mexican American Legal Defense
Fund. Citizens for Affirmative Action's
Preservation and students who attended
Detroit high schools at the time the case was
filed -- argued in favor of the case going
before ajury.
Kirk Kolbo, lead counsel for CIR. began
his arguments by saying the University uses a
double standard to admit students.
"The University of Michigan effectively
operates a dual system based on race. One
high standard applies to most applicants and a
lower one is applied to a few select racial
groups," Kolbo said.
A recurring topic throughout the mornine
was the issue of whether diversity is a corn-
pelling governmental interest.
In his opinion for the 1978 case Regents of
the University, of Califbrnia v Bakke,
Supreme Court Justice Lewis Powell wrote
that attaining greater diversity is a compelling
governmental interest.

But Kolbo argued that Powell would not
approve of the University's admissions policy.
"Powell only spoke of diversity as a gov-
ernment concept so vague, so malleable and
open to abuse that it simply cannot be a com-
pelling government interest." Kolbo said.
But John Payton, lead counsel for the Uni-
versity, emphasized that a racially and ethni-
cally diverse student body is critical to the
University.
"We remain a divided country. There are
consequences to this separation. Having a
racially diverse student body improves the
education for all students,' Payton said.
"Everyone agrees having classrooms all
white is not the best thing for us' Payton said.
Payton said race is only one of the factors
the University takes into consideration when
evaluating applicants.
Theodore Shaw, a lawyer with the NAACP
Legal Defense and Education Fund, Inc. argu-
ing on behalf of the intervenors, said a jury
trial would permit them to present new evi-
dence.
Shaw said the intervenors based their argu-
ment on the premise that it is the University's
responsibility to correct past discrimination
committed against underrepresented minorities.
"At the end of the day, no one said anything
about the issues we want to raise, that's why
we think the case needs to go to trial," Shaw

said.
Shaw said Gratz and Hamacher are attack-
ing a policy that may not have affected their
denial to the University.
"One can't honestly say whether they
would have been admitted," Shaw said.
After all three of the parties spoke, Duggan
expressed his admiration for all of the lawyers
and said a trial may not be necessary.
"But, while they were important, they were
not issues of fact. Trials need to be resolved
on issues of fact," Duggan said, adding that
he expects any decision to be challenged in a
higher court.
"We know this case is going to a higher
court after I decide it," Duggan said.
After court was dismissed, CIR Chief
Executive Officer Terry Pell said he was
pleased with the way things were going.
"I'm encouraged Judge Duggan sees this is
a legal issue and not a factual one and that he
understands the arguments on both sides,"
Pell said.
Shaw said the main reason for the inter-
venors joining the case is to ensure equal
rights for all people.
"The bottom line is we want to keep access
open to the University for all students," Shaw
said.
The Law School trial is scheduled to begin
in January.

REACTION
Continued from Page 1
"It's a matter of law," Sedler said. "I don't
think there's any dispute of the facts of what U of
M does."
Bloch added she was more surprised that the
plaintiffs and the University's lawyers agreed that
the facts are undisputed. Usually, she said, sum-
mary judgement is asked for by one party and the
other side contests.
The one party that is disputing the facts of the
case is the third party - the coalition of inter-
vening defendants.
"We support the University in its diversity
arguments," said intervenor lead counsel
Theodore Shaw. But, he argued, "there is a spe-
cific history of exclusion" at the University and
that is an "issue too important to decide without a
full hearing," he said.
But the intervenors conceded that a trial would
probably be unnecessary if Duggan ruled in favor
of the University.
"It wouldn't be a complete victory, but it
would be one we'd take," said Shaw, amidst
laughter from around the courtroom.
But even if Duggan grants summary judge-
ment, the case is far from over. Both sides have
made it reasonably clear an appeal is likely,
something that Duggan is certainly cognizant of.
Throughout the case, the chance of an appeal to
the Supreme Court has been discussed repeatedly.
University of'Texas Law Prof. Lino Graglia
said he thinks "if the plaintiffs lose, they'll surely
appeal," and face a possibly hostile court at the
appellate level.

"The Sixth Circuit is certainly not a conserva-
tive circuit;' Graglia said.
After Duggan initially denied a motion for the
intervening defendants to join the case, the Sixth
Circuit Court of Appeals in Cincinnati over-
turned his ruling.
As for the Supreme Court, Graglia said "it
looks like it would be a good shot at 5-4 to disal-
low racial preferences."
"It's so hard to tell," he said, adding that he
thought the key vote could be found in Justice San-
dra Day O'Connor.
Throughout the past few years, the Supreme
Court could be characterized as having four pre-
dominantly conservative justices in Antonin
Scalia, Clarence Thomas, Anthony Kennedy and
Chief Justice William Rehnquist.
But even this conservative block could be
changed, Graglia said. While Rehnquist was a
Nixon appointee, lie has shown some liberal
tendencies Graglia said, citing Rehnquist's
majority opinion in the reaffirming of the
Miranda decision.
"Republicans pick bad judges because they're
incompetent. Democrats pick bad judges deliber-
ately,"Graglia said on the subject of trying to
guess a judge's leaning due to who they were
appointed by.
The four liberal-leaning justices have been
John Paul Stevens, Ruth Bader Ginsberg, David
Souter and Stephen Breyer. These numbers put
O'Connor as the swing voter.
But all of this is academic speculation until
Duggan hands down his decision. And he made
no clear indications as to which side he would
favor for a summary judgment.

I

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