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 yR]