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January 12, 2001 - Image 12

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Publication:
The Michigan Daily, 2001-01-12

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12 - The Michigan Daily - Friday, January 12, 2001

FRIDAY Focus

e

long

and

windin

road

U' case on
i ts way to
High Court
By Jon Fish
Daily Staff Reporter
In any discussion of the lawsuits challenging the use of race
as a factor in admissions, the words "U.S. Supreme Court"
inevitably follow.
But before asking if the University would win or lose the
case at the U.S. Supreme Court level, it is crucial to first ask
whether the cases will be heard at all.
This in itself is a risky guess, because the Law School case is
just beginning at the district level. Because the LSA case has
been decided at the district level, it may be appealed to the 6th
Circuit Court of Appeals in Cincinnati.
A three judge panel would then hear the case at the Court of
Appeals, and that decision could be appealed to the full appeals
court. It would be that full-panel decision that would most like-
ly be appealed to the U.S. Supreme Court.
And even after this, four justices must decide they feel there is
a compelling reason for the U.S. Supreme Court to hear the case.
Additionally, there is no guarantee the Supreme Court will not
decide another case before the University's case reaches the court.
Currently, the case that seems to be the closest to the Supreme
Court is the 9th Circuit Court of Appeals case, Smith v. The Uni-
versity of Washington Law School. In this case, the 9th Circuit
found that race could be taken into account in admissions, which
contradicts other conclusions by Circuit level courts.
The Center for Individual Rights, the Washington-D.C. based
firm that filed the lawsuits against the University, also represent
the plaintiffs in the Smith case. They have not announced if they
will seek Supreme Court review in the case.
But while the road to the Supreme Court is one that is full of
uncertainty, there are some factors that could make the Univer-
sity's cases attractive to the Court.
First, it is widely agreed among the parties in the University
cases and law professors that affirmative action is a crucial
social issue that needs to be addressed.
Lino Graglia, a law professor at the University of Texas said
he believes the courts will have to make a decision as to the
nature of the decision reached in the 1978 case The University
of California Regents v. Bakke.
"The Bakke case is very split and uncertain," Graglia said. "I
expect that the Court will have to decide the issue once and for
all."
Law School Dean Jeffrey Lehman and University President
Lee Bollinger have said the University's defense has operated
under the assumption that the cases will eventually reach the
Supreme Court. "Every lawyer in this case has approached it
from the beginning that this is a critical legal issue," Lehman said.
"We've tried from the beginning to think of what kinds of
things the Supreme Court would like to know."
In building their case, the University has tried to gather a com-
prehensive record of evidence. Because appellate judges do not
hear testimony, a complete record of evidence is essential to the
appeals process. "We have taken the time and effort to build the
case in a systematic way," Bollinger said.
No other case has had the presence of student intervenors.
Their argument that the University must take race in account to
remedy past and present discrimination has provided the most
comprehensive defense of affirmative action, said Miranda
Massie, lead counsel for the intervenors. "There's never been a
record like the one for this case," she said.
Yale law Prof. Stephen Yandle agreed the University's cases
have a chance for Supreme Court review. "Of all the cases, the
one to me that is most interesting and the most likely to reach the
Supreme Court are the Michigan cases;' he said.

Os. D istrict Courlt

Detroit

In the LSA case, Judge Patrick Duggan's opinion could be appealed to the 6th Circuit Court of
Appeals by any party in the case.

In the Law School case, Judge Bernard Friedman's opinion, which he will give f
hours of argument, could also prompt appeal from any party in the case.
itcoroa aN-,
Cincinnati If either case or both cases are appealedat rjudgeanel at the 6th Circuit Coin
option of handing down an opinion on either or both. That opinion can be appealed
nine-judge panel.
That opinion would then be appealed to the U.S. Supreme Court.

F

0

Ruth Bader
Ginsberg
Normally
votes liberal,
but has also
voted on the
conservative
side.

FROM STAFF RESEARCH

Compelling interest at heart of

case

By Hanna LoPatin
Daily StaffReporter
A decision made more than 20 years ago in the U.S.
Supreme Court is providing the basis for two lawsuits
challenging the use of race as a factor in admissions.
One judge has upheld this decision in federal court and
the other is going to trial Tuesday.
In the 1978 case, The University of California
Regents v. Bakke, Allan Bakke sued the University of
California at Davis because he felt the university had

opinion appears to endorse both uses, but the U.S.
Supreme Court has never clarified the point.
The highly divisive proceedings of Bakke confused
law experts even then, said Wayne State University law
Prof. Robert Sedler.
"At the time, the overwhelming view was
that the Supreme Court had held that race
could be taken into account in a precisely- WDMI
tailored way to achieve diversity," Sedler
said.
Powell's assertion that diversity is a com"

ty psychology Prof. Patricia Gurin stating that diversity
provides priceless benefits in education as evidence in
the trial.
"Racial and ethnic diversity is critical for education,"
Gurin said. "It enhances active engagement in learning
and enhances the preparation for citizen-
ship."
sIONS Though the upcoming Law School case
IA_ will not be holding a trial to look at the
Bakke decision, a ruling will still be made
and Gurin's evidence could be imperative to

ny.
Many issues "are very important things," he said. But
"that doesn't raise it to the level of a 'compelling gov-
ernment interest."'
University Deputy General Counsel Liz Barry said
Powell's decision "came on the basis that the education-
al benefits (of diversity) arrive to a compelling govern-
mental interest."
She said she believes the Bakke decision will hold up
in the upcoming trials.
For the University of Texas, where the Hopwood
dricnn rn b8.ntc onv ~ucPof nCrpn nrlmi ccinnc thc.

'a
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