- The Miicgan Daily --Wecnesday, March 28, 2001
ADMISSIONS ON TRIAL
2 similar cases result in dfferent rulings
By Anna Clark
Judges have handed down two strikingly diflir-
ent decisions7 n the two pearl, identical lawsuits
challeinag TaCe-sensitive admissions in the Uni-
versitys I aw School and the College o Literature,
Science nad ihe :Arts. sparking questions as to
whati's next for both cases - including the possi-
bility to,'combiningi them as they head for appeals.
i.S Distnct udge Bernard Fnedman, who ruled
against the La\ School's admission policy yester-
d4ay, tfndamentallV d isagreed with U.S Disti ct
Judge Patrick Duegai's decision in the LSA case.
In a summary iudument for the LSA lawsuit,
t )uggan upheld the Univeisity's claims that diversi-
ty is a Compelling government interest. Friedman
imiaintained that it is not.
Although F 'riedman aireed with L'ugan that
racial diversity on college ca mp ises enhances edu-
c tion for all students, he wrote in his opinion that
thiersity can only be attatiied ithrough race-neutral
means. Both decisions Used the i 9'8 Supreme
(ourt case 'c'r.+Jsiy & tCri/frn Regents v
duAkke to ;ustiky thein opposin g positions.
The Bakke case is considered th;i standard for
"Friedman got it right and Duggan got it wrong."
- Curt Levey
CIR director of legal and public affairs
affirmative action policies nationwide. It outlawed
racial quotas, but Justice Lewis Powell, speaking
only for himself, said race could be considered as
one of many factors in admissions and hiring deci-
sions to achieve diversity.
Duggan based his decision on this rationale, and
wrote in his opinion that the LSA's current admis-
sions system considers race as one of manv ftctors
in its applicants. Friedman, interpreting Bakke dif-
ferently, concluded that Powell's opinion did not
represent the other justices and is therefore not a
part of the court's ultimate decision.
Universiiy Provost Nancy Cantor said Fried-
man's choice to depart from what she sees as legal
precedent is significant.
"It looks as if Friedman is really reaching out to
change the law,' she said. "I believe that Friedman
has really misread the Bakke decision. No Supreme
Court decision has said that diversity cannot be a
compelling interest. We believe our policy is fully
compliant with the law."
Ui niversity Recent Kathy White (D-Ann Arbor)
agreed with Cantor. "I was very surprised \\ ith this
decision" White said. "JudLe Friedman based his
decision wholly on legal issues that are inconsistent
with the Supreme Court:'
Curt Levev, director of legal and public aI'airs
for the Center of Individual Rights, the Washington
D.C.-based firm challeiiging the University in both
cases, said the two decisions demonstrate how the
ambiguity of the Bakkc decision causes seeminly
"But in nimv opinion. Friedman got it right and
Duggan got it wrone," he added.
Despite the contrasting opinions, it is possible
the two cases will be combined as they head
towards the 6th Circuit Court ofIAppeals.
One of the three parties in the cases must move
for consolidation before the appeals court consi ders
it, Levey said. adding that the CIR has not vet had a
chance to consider whether or not consolidation
X\ouid be in their- t\r.
MI iranda MIassie, lead attorney for the student
intervenors, said the chance of combinine the cases
is good. "There actually might be a better chance
for the cases to consolidate since they have deci-
sions that are in such sharp contrast," Massie said.
"Somebody has to have the final word as to whether
or not diversity is a coipel ling state interest.,
But as CIR continues its efiort to eradicate afir-
mati e action policies, the contrasting o)pinions
could have an impact beyond the University.
Lead CIR attorney Kirk Kolbo said he thinks
other courts Xill not only look at both opinions,
and note that Duggan's decision vas based solely
on pre-trial evidence.
"What's especially-gratifying about this decision
is that it comes after a fulI blowiin trial and after
liearing powcrful evidence.' Kolbo said yesterday.
"I think it just adds to the iiomentum of climinat-
ing atfrmative action that relies on discrimination."
But Kolbo added that CIR isn't planning oiliniti-
atin any more la\suits while the Lniersity cases
are still in appeals.
"We have our hands full'' Kolbo said. "We want
to see these cases on to the end."
Bakke case remains
at center of debate
By Jen Fish
Daily Statl kcportcr
Four years, one trial and two decisions
later, the question of vwhict her dix ersity is
a conipel Ii ng g overn ment i lterest
remains murky as ever.
But that question is at the heart of the
case, and holds the fate of affirmative
action ii its answ\er - whatever that
may be. The U.S. Supreme Court has not
directly addressed this issue since 1978.
after the sharply divided court issued
three separate opinions in Lin iversit itof,
Caifornia Rc0ensuI: B akkc.
As the University wrote in its post-
trial summary brief to U.S. District
.Judge I Bernard Friedman: "it the end.
this case boils dow n to the question of
the meaning of Bakk'."
Four of the niiie Supreme C(ourt jus-
tices. known as the "Stev ens Four,' r uled
that the use of any racial quota wxas
impermissible, while the "Brennan
FoLIC held that race could be used as a
factor in admissions to remedy past dis-
criiiinaiion in very specific situations.
Justice Lewis Powell cast the tie-
breaking vote for both opinions, forcine
the University of 'Califrnia at Davis to
admit plaintifi' AlIan Bakke but declarine
ace permissible. IHIow\ ever, he also wrote
a separate opinion in which he held that
race could be taken into account as one
of ianx tactors to achieve diversity.
PiCcine tocethier exactly what was
meant in the Bakke decision has been a
task legal experts have struggled with
The University has contended that
Powell's opinion constitutes the control-
ling opinion in the case, which is a cen-
tral point of disagreement between
Friedian and U.S. District Judee Patrick
Du can, who affirmed the diversity
rationale in the undergraduate case.
'The "Brennan Four. -Friedman said.
only joined Powxell in saving that race
could be used but "they disageed entire-
ly as to the reasons why."
University of' Texas Law Prof. Lino
Gra"lia agreed w ith Fri edian's inter'pre-
tation, saving Powell alone discussed the
diversity rationale, independent of his
But law p'rofessors Jeroiiie Culp and
Robert Sedler disagreed, saying there has
been an implicit agreement that Powell's
opinion is the controlling argument.
"I stronely disacree with his readinu of
the BIlAAke case,' said Sedler. a professor
at Wayne State University. "From the
time of the Bakke decision in 1978 until
the 5th Circuit in Hopood in 1996. uni-
versities had assumed that Bakke permit-
ted the use of diversit," as a rationale f'or
usin race, Ile said. referring to the 1996
case Hopwood 1 'n.iersili of h'aWs,
which declared Bak1 dead.
Culp. a professor at Duke Law School
also aereed. callin IFriedmaiin's opinion
'.a poorly crafted effort to reverse Bak//a'
Culp also warned not to undeirestimate
the role of politics in Friedman's deci-
sion. '"[he judge is buying into the polit-
ical and social "ievs of the people
behind this nmovement (to end atlirma-
tile action). It's the opposite of the peo-
ple who brought Brown i Board of
ldcation. he said.
by U.S. District
"A major bone of contention in this
case has been the extent to which
race is considered in the admissions
process. The evidence shows that
race is not, as defendants have
argued, merely one factor which is
considered among many others in the'
admissions process. Rather, the
evidence indisputably demonstrates
that the law school places a very
heavy emphasis on an applicant's race
in deciding whether to accept or
"in each year at issue in this case,
Native American, African American,
Mexican American and Puerto Rican
applicants have been admitted in .
significantly greater proportions than'
Caucasian applicants with the same
or similar undergraduate GPA's and
'The connection between race and
viewpoint is tenuous, at best, The
defendants walk a fine line in
simultaneously arguing that one's
viewpoints are not determined by
one's race but that certain viewpoints
might not be voiced if students of
particular races are not admitted in
significant numbers. Some of
defendants' witnesses testified that
classroom discussion is improved
whenthe class is racially diverse, and
some gave examples of viewpoints
expressed in class by
underrepresented minority students.
However, these witnesses generally
conceded that these viewpoints might
equally have been expressed by non-
"The court does not doubt that racial
diversity in the law school population
may provide these educational and
societal benefits. Nor are these
benefits disputed by the plaintiffs in
this case. Clearly the benefits are
important and laudable. Nonetheless,
the fact remains that the attainment.
of a racially diverse class Is not a
compelling state interest because it
was not recognized as such by Bakke
and it is not a remedy for past
"The defendants have indicated that
they will continue to use race as a
factor in admissions for as long as
necessary to admit a critical mass of
underrepresented minority students,
and no one can predict how long that
might be. Such indefiniteness weights
heavily against a finding of narrow
"During some of the years at issue in
the lawsuit, the law school bulletin'
indicated that special attention has
been given to 'students who are
African American, Mexican American.
Native American, or Puerto Rican and
raised on the U.S. mainland.' The law
school has failed to offer a principled
explanation as to why it has singled
out these particular groups for special
attention. Certainly, other groups have
also been subjected to discrimination,
such as Arabs and southern and
eastern Europeans to name but a few,
yet the court heard nothing to
suggest that the law school has
concerned itself as to whether
members of these groups are
represented 'in meaningful numbers.'
"While the law school has not set
aside a fixed number of seats for
underrepresented minority students,
as did the medical school in Bakke,
there is no principled difference
between a fixed number of seats and
an essentially fixed minimum
percentage figure. ... While
defendants contend that the law
school's admissions policy differs from
U.C. Davis' in that all applicants
compete against one another, the fact
of the matter is that approximately 10
percent of each'entering class is
effectively reserved for members of
particular races, and those seats are
insulated from competition.
"For all of these reasons, the court
believes that the attainment of a
racially diverse student bodyis not a
compelling state interest. Even if it
were, the law school's admissions
policy is not narrowly tailored to serve
that interest. Accordingly, the court
concludes that the law school's 1992
admissions policy violates the Equal
Protection Clause of the Fourteenth
Amendment and Title VI of the 1964
Civil Rights Act.
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