OP-ED

Tuesday, January 16, 2001- The Michigan Daily - 5A

Grutter
V.
Bollinger

T oday, the lawsuit challenging the University Law School's use of race
as a factor in admissions is set to go to trial in a federal courtroom
in Detroit. Attorneys representing the University, the Center for
Individual Rights (the Washington, D.C.-based group representing the
plaintiffs) and a group of intervening student defendants will make
their cases. Is affirmative action reverse discrimination? How is diversity

truly beneficial to everyone at the University?
based admissions in higher education? Federal

What is the future of race-
District Judge Bernard

Friedman will be considering all thes

e issues.

,ALL SIDES HEARD
JEFFREY LEHMAN, Lw ch\OL DEAN
The 50-year quest for diversity
on legal education

When the University of Michigan goes to
court this week to defend its law
school's admissions policy, it will be writing
the newest chapter in a history that goes back
more than 50 years.
A half century ago, the University of
Texas was struggling to maintain its premiere
law school as a segregated, all-white educa-
tional environment. Lawsuits challenged
those practices and ultimately, in Sweatt v.
Painter, the U.S.
Supreme Court e
decided that they
could not stand. diverse class
Speaking for a unan-
imous Court, Chief and otherwih
Justice Vinson
emphasized the edu- class strona
cational benefits of
racial integration: sum of its pf
"The law school...
cannot be effective aim for a
in isolation from
the individuals and comprehe si
institutions with
which the law inter- that will enno
acts. Few students
and no one who has everyone s e

eT
Ss
54
Cr

practiced

law


would choose to study in an academic vacu-
um, removed from the interplay of ideas and
the exchange of views with which the law is
concerned."
A quarter century later, most universities
had come to share Chief Justice Vinson's
appreciation for how racial integration pro-
motes "the interplay of ideas and the
exchange of views." Recognizing that such
integration would not happen to any pedagog-
ically significant degree without "affirmative
action," the schools devised a variety of
mechanisms to promote the presence of stu-
ients from different racial, ethnic and social
backgrounds.
In time, lawsuits challenged affirmative
action as well, arguing that cases such as
Sweatt and Brown v. Board of Education had
created a standard of "strict colorblindness"
in university admissions. But in Regents v.
Bakke, the U.S. Supreme Court rejected the
"strict colorblindness" theory. The five-jus-
tice majority (no, this was not Justice Powell
speaking alone) declared:
"In enjoining petitioner from ever consid-
ering the race of any applicant..., the
courts below failed to recognize that the
State has a substantial interest that legiti-
mately may be served by a properly devised
admissions program involving the competi-
tive consideration of race and ethnic ori-
gin.."
Today, law schools continue to teach in
ways that depend heavily on student participa-
tion and that fact shapes the way selective law
chools make admissions decisions. At the
niversity, for example, we can enroll only a
few hundred first-year students each fall. We

reject most applicants, including many who
might be fully capable of succeeding here. To
make admissions decisions, we follow a writ-
ten policy that was adopted by the faculty in
1992. (See http://www.umich.edu/~urel/admis-
sions/faqs/).
That policy goes on trial this week. The
plaintiff, Barbara Grutter, was not admitted to
this law school in 1997, when the entering
class included 25 African Americans and 14
Latinos among a total
that c class of 339. Her lawyers
allege that the admissions
Sracialypolicy employs a "dual
j'Jadmissions system, that
Smakes a is, two different admis-
sions standards, depend-
r than the ing on the race of the
applicant."
Fs; we That allegation is
wrong. Our admissions
policy considers race
exactly in the way that
e diversity the Supreme Court
authorized it to be con-
hh sidered in Bakke. The
provisions of our admis-
ucation. sions policy apply to all
applicants, regardless of
race.
The Law School considers applicants'
grades, test scores, recommendations and
essays; we consider where and what they
have studied; we consider every experience,
talent and quality that might reveal what kind
of student they will be. We identify applicants
who will succeed in law school and in the
practice of law. We recognize that a diverse
class, racially and otherwise, makes a class
stronger than the sum of its parts; we aim for
a comprehensive diversity that will enrich
everyone's education.
There is not enough room for everyone
who is qualified to attend. There is certainly
no room for anyone who is unqualified. This
fall, we offered admission to 38 percent of the
1,871 white applicants, 35 percent of the 257
African American applicants and 32 percent
of the 181 Latino applicants. Every one of the
students who enrolled fully deserved the
chance to study at the University.
The benefits of our admissions policy are
palpable. In a 1999 Gallup survey of third-
year law students at Michigan, 91 percent
reported that the school's diversity had a pos-
itive impact on their education.
This week, we will defend our right to
provide University students with those bene-
fits. Just as they did 50 years ago, we expect
the courts to reaffirm our ability to facilitate
"the interplay of ideas and the exchange of
views with which the law is concerned."
- Law School Dean Jeffrey Lehman is
named as a defendant in Grutter v.
Bollinger. Lehman, who became the school's
dean in 1994, graduated from the Law
School in 1981.

O ur University's admissions programs give preference by race. That
is an indisputable fact; University President Lee Bollinger frankly
admits that "we do discriminate." The objective, diversity, is thought to
be so compelling that to advance it even racial discrimination is found
tolerable. As a matter of law and morals, this is a seriously mistaken
judgment.
Justice Lewis Powell, upon whom our University leans heavily, wrote
this in his Regents v. Bakke opinion: "The guarantee of equal protection
cannot mean one thing when applied to one individual and something else
when applied to a person of another color. If both are not accorded the
same protection, then it is not equal." (438 U.S. 265, at p. 289) Of course.
But we do treat people differently (giving extra points or special advan-
tage) depending simply
on the color of their skin.W -s -
This contravenes the let- vi e
ter and the spirit of thelik e
14th Amendment: "No i
state shall ..hey oay uS 5 f i LeI.wi$s
syperson within its jurisdic- r hL
tion the equal protection Powell) held totally
of the laws." The ugly r
history of racial oppres- unacceptable.
sion in America leaves
no doubt that race prefer-
ence - in any and every form - is unjust, deeply wrong.
An admissions system is unacceptably discriminatory when it gives
systematic preference by race - exactly what ours does. Justice Powell
condemned the California program repeatedly because it involved "the
use of an explicit racial classification" (p. 319) just as our program
does, because its benefits "hinge on ancestry or the color of a person's
skin," (p. 320) just as in our program and because it was "undeniably a
classification based on race and ethnic background." (p. 289, emphasis
added), just as our program is.
But improving education for all is the aim; doesn't that justify our
preferences? No, not if the system violates the U.S. Constitution, which
it does (for Justice Powell) if it relies upon "a line drawn on the basis of
race and ethnic status." (p. 289, emphasis added). As ours does.
But doesn't Powell allow that "diversity" may justify what we do?
No, not what we do! Our system prefers applicants flatly by skin color;
that, said Powell, "misconceives the nature of the state interest" (p. 315,
emphasis added) in intellectual diversity.

But we weigh a "broad array of characteristics" of which race and
ethnicity are only two. Doesn't that protect us? It does not. For Justice
Powell (the only Supreme Court justice who has ever addressed "diver-
sity" in this context) any plausible consideration of race would require
at least that broad array, to be sure. But such an array is for him a neces-
sary condition, never a sufficient condition for the consideration of race.
Powell wanted admissions officers to have some 'wiggle room' in
close cases. So, he thought, in evaluating particular applicants, race
might at times enter at the margins, where non-racial merits of other
applicants may readily outweigh it. But - and in this Powell is
explicit - such occasional consideration of race could apply only to
some individual applicants, never to racial groups. He wrote: "(R)ace
or ethnic background may be deemed a 'plus' in a particular apppl-
cant's file ... The file of a particular black applicant may be exam-
ined ... (p. 317, emphasis added). Wholesale race discrimination, like
ours, he held totally unacceptable.
What features render a program's consideration of race impermissi-
ble? Powell is unambiguous: Does the program draw a line on the basis
of race? If it does, as ours does, it fails. Are applicants of different col-
ors accorded the same or different treatment? If different by color, as in
our system, then (whatever the array of characteristics also weighed)
equal protection has been denied.
Is consideration of race for some individual applicants (which Pow-
ell thinks occasionally permissible) really distinguishable from the sys-
tematic consideration of race for all applicants? Certainly. "(A) broad
array of characteristics" may be used "as a cover for the functional
equivalent of a quota system," Powell wrote, but where all and only
those of certain color are given special favor the system reeks; it
exhibits (in his words) "a facial intent to discriminate." (p. 318, empha-
sis added). That's us.
Justice Powell's resort to diversity, designed to soften the earlier rul-
ing of the California Supreme Court totally excluding race, may be an
entirely mistaken path. But in any case his leniency is nothing like our
systematic discrimination - which he found legally and morally repug-
nant. We do precisely what Powell categorically condemned.
We mean well, of course, but our race preferences are intolerable in
a decent society. They will soon end.
- Philosophy Prof Carl Cohen was one of the first people to
challenge the University's admissions policies. His Freedom of
Information Act requests of these policies five years ago are credited in
sparking the movement to end race-based admissions at the University.

CARL COHEN, PHILOSOPHY PROFESSOR
Condemned by Justice Powell

FROM THE STUDENT INTERVENORS
Racism and inequality on trial

A merica is at a turning point. As has hap-
pened at the other deciding moments in
our history, the efforts and convictions of a
small but dynamic and growing movement that
speaks for the historical interests of an awaken-
ing mass of people have changed history.
We, the student intervenors in the University
of Michigan Law School case, demanded that
Judge Bernard Friedman hold a trial to remove
the stigma that the Center for Individual Rights
and the other opponents of affirmative action
have placed over the heads of minority students
at the University and at campuses across the
country. The current trial that we have secured
opens up a historic opportunity to take Ameri-
can society toward long-promised, long-
deferred integration and equality.
We are fighting to broaden the legal justifi-
cation of affirmative action to include its actual
social purpose - lessening the inequality and
segregation that structure life and opportunity in

the standardized tests and grade point average
as measures of students. These measures reflect
and perpetuate privilege. Student and expert
witnesses will testify about the racist and sexist
inequality that pervade this society and its edu-
cation system and about the benefit to the soci-
ety of the steps we have take toward integration
and equality. We will expose the bigoted bio-
logical-determinist lie that is behind the attack
on affirmative action.
We will expose and attack the stifling racist
inequality in K-12 edu-
cation. This condition The be nnA
of society is no longer
acceptable. pedod of il
A profound strug-
gle is underway. The sfruggle hai
direction of our nation,
is being worked out in profcund om
a struggle between two
new, yet familiar forces social conm

terrain of the conflict have changed utterly. The
beginnings of a new period of civil rights strug-
gle have had a profound impact on the social
consciousness and on the context of the battle.
Our victory is now possible.
Every thinking person must understand the
gravity of the moment. The outcome of con-
flicts like this direct the course of our history.
Either American society and its laws will turn
toward the segregationist tradition of our his-
tory, the Plessy v. Fergeson - the "separate
but equal" lie once
gs of a new again -or we will
embrace the integra-
, llr tionist aspiration of
Brown v. Board of Edu-
b had a cation and reaffirm our
commitment to the
act on struggle for integration,
equality and progress.
fOUSnes These are the two roads.

'Is diversity a sufficiently compelling interest to justify racial
preferences? We claim that it isn't and the University claims that
it Is.'
- Terry Pell, Center for Individual Rights chief executive officer, in August 2000
'The attack on affirmative action can only prevail if the truth is not
let into the court room.'
- Miranda Massie, lead counsel for the group of
intervening student defendants in August 1999.
'The great issue is will we - as Texas and California sadly
demonstrate - head towards a resegregation in education or will we
continue to strive towards the ideals of Brown v. Board of
Education?'
- University President Lee Bollinger on Dec. 3, 1997,
the day CIR filed its lawsuit against the Law School.
'We have all assumed we have moved from being a segregated

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