DECISION TIME TMichigan Daily - Tuesday, December 3, 2002-3 Court will examine precedent, new issues in coming decision 3 By Megan Hayes and Jordan Schrader Daily Staff Reporters The Supreme Court's decision to hear arguments in the lawsuits challenging the University's admissions policies marks the first time in nearly 25 years it will revisit the use of race in college admissions. In 1978, the Supreme Court ruled in Regents of the University of California v. Bakke that race could be used as one of several factors when evaluating appli- cants, while it denied the use of racial quotas. In his majority opinion, Justice Lewis Powell specifically found creating a diverse educational environment to be a compelling state interest and ruled that subsequent policies must be narrowly tai- lored to meet this interest. University Assistant General Counsel Jonathan Alger said the Court will examine two factors in making its decision - the edu- cational benefits diversity has provided at the University and the degree to which policies have been carefully developed in accordance with the Bakke decision. "Our policies have been narrowly craft- ed to comply with Supreme Court prece- dent," he said. The Court's decision could determine the degree of discretion universitiesthave in crafting admissions policies with the goal of diversity in mind, Duke University Law Prof. Jerome Culp said. "It puts into play the whole question of what voluntary actions universities can take," he said. Wayne State University law Prof. Robert Sedler said while none of the liti- gants are opposed to diversity, the conflict centers on how a diverse campus can legally and effectively be achieved. "It's a question of whether the Universi- ty can use race to achieve racial diversity or whether it has to use factors that corre- late with race," he said. For instance, laws in Texas and other states require public universities to accept the top 10 percent of all high school class- es in their states in order to enroll students from many different backgrounds. While University lawyers will appeal to the Court's desire to follow precedent, the intervenors in the lawsuits will argue that the problem to be addressed goes beyond diversity. "It's a question of whether the university can use race to achieve racial diversity or whether it has to use factors that correlate with race." - Robert Sedler Wayne State University law professor Miranda Massie, lead attorney for inter- venors in the Law School case, said reme- dying the effects of past and present racial discrimination is an equally compelling state interest. "We're the only party that's been prepared to expose the multitude of ways in which racism shapes and distorts every aspect of the educational experience, including admissions criteria," Massie said. AP PHOTO Barbara Grutter, a 46-year-old working mother, was denied admission to the Law School in 1996 and is the plaintiff in the case against the University's Law School admissions policies. Past cases clarify controversy surrounding admissions suits Administrators pleased with Court's decision Re ents feel University policies Wwwithstand legal callenge By Shabina S. Khatdi Daily Staff Reporter From Plessy v. Ferguson to the Regents of the University of Cali- fornia v. Bakke, the Supreme Court has reshaped the nation's poli- cies on diversity in higher education. The High Court will once again assess the precedents it has set when it hears arguments next spring in two cases challenging the University of Michigan's race- conscious admissions policies. The Court's ruling in 1896 in the case Plessy set a precedent that would be followed for more than 60 years. The case concerned a black man named Homer Plessy, who was jailed in 1892 for refusing to move from a car designated for whites in a train on the East Louisiana Railroad. Plessy sued the state of Louisiana, charging the policy of separate cars vio- lated the 13th and 14th Amendments. But the judge in the case, John Howard Ferguson, ruled against Plessy. The Supreme Court heard the case and upheld the previous decision. In an 8-1 decision, the Court ruled that separate facilities for blacks and whites were constitutional as long as they were equal. But when the Court revisited the issue 60 years later in Brown v. Board of Education, it struck down the "separate but equal" doctrine, a decisionthat integrated schools throughout the country. Linda Brown was a black girl who was denied entrance to a white elementary school in Topeka, Kansas. Future Supreme Court Justice Thurgood Marshall argued the case before the high court in 1952. It took the Court two years to come to a decision, but it finally issued a unanimous decision declaring separate but equal policies violated the 14th Amendment, which guarantees equal protection of the law all U.S. citizens. The Supreme Court next addressed the issue of race and edu- cation in 1978, when a sharply divided court issued three sepa- rate opinions in Bakke. Allan Bakke alleged he was denied admission to the Univer- sity of California at Davis Medical School because he was white. Prior to the Bakke ruling, the school reserved 16 out of 100 openings in its mfedical school for minority applicants, who were chosen from a separate pool of candidates. Four of the nine Supreme Court justices ruled the use of any racial quota was impermissible, while four of the five remaining justices held that race could be used as a factor in admissions to remedy past discrim- ination in very specific situations. Justice Lewis Powell cast the tie-breaking vote for both opinions, forcihg the University of California at Davis to admit Bakke but declar- ing race a valid consideration in admissions. But he also wrote that race could be taken into account as one of many factors to achieve diversity. While the cloudy decision reached in Bakke resolved the issue for nearly two decades, but the battle over diversity in higher education was reignited in 1996 when the Center for Individual Rights filed the first of three lawsuits challenging the admissions policies in three universities across the country. The University of Michigan was one of them. The Supreme Court refused to hear cases concerning the univer- sities of Texas and Washington, which resulted in opposing deci- sions at the circuit court level. The two cases against the University of Michigan are the only ones concerning race and higher education still in the legal pipeline. In October 1997, Jennifer Gratz and Patrick Hamacher, two white applicants who were denied admission to the University of Michigan, filed a lawsuit against the University on the grounds that its undergradu- ate admissions policies discriminated against white applicants. Barbara Grutter filed a similar lawsuit against the University's Law School in December 1997 after being denied admission to the Law School. In February 1998 a third party, the intervenors, entered the picture, filing a motion to be included in the cases. The interveners included the groups the National Association for the Advancement of Colored People Legal Defense and Educational Fund and the American Civil Liberties Union Foundation. The intervenors said they support the use of race in admissions as a PATRICK JONES/Daily Since December 1997 the Law School has been the focus of a lawsuit involving the school's race-based admission policies. means to remedy past discrimination, while the University supports race-conscious admission policies as a way to create a diverse learning environment. In August 1999, the 6th Circuit Court of Appeals allowed the inter- vention in both cases. In December 2000, U.S. District Court Judge Patrick Duggan issued his opinion, saying diversity is a "compelling governmental interest and that the University's current undergraduate admissions program meets the standards set by the Supreme Court in Regents of the University of California v. Bakke." But he also declared a grid system the University had employed to evaluate applicants to be unconstitutional. The University had reformed its policies, and Duggan ruled the new system was per- missible. Duggan dismissed the intervenors' claim that the Univer- sity was justified in using race as a factor in admissions to remedy the effects of past discrimination. In March 2001, District Judge Bernard Friedman ruled against the University and also denied the intervenors' claims, stating in his opinion that the law does not permit colleges and universities to use race in admissions. Though Friedman issued an injunction baring the Law School from using race as a factor in admissions, the 6th Circuit issued a stay of the injunction, allowing the Law School to continue its policy. Both cases were appealed to the 6th Circuit, and the appeals court heard arguments in both cases in back-to-back hearings in December 2001. The court issued its decision in Grutter v. Bollinger in May, ruling in favor of the University and reversing Judge Friedman's previous decision that declared the Universi- ty's use of race in admissions unconstitutional. The appeals court has not issued a decision in Gratz v. Bollinger CIR appealed the 6th Circuit's decision to the Supreme Court, which accepted both the undergraduate and Law School cases yes- terday morning. By Emily Kraack and Tomislav Ladika Daily Staff Reporters An impending Supreme Court hearing could result in a ruling impacting the way colleges and universities across the country look at applicants. Univer- sity of Michigan adminis- trators yesterday said they were looking forward to a decision that will clarify the role of race in college admissions. "This is an issue of national importance," inter- im LSA Dean Terrence McDonald said. "I'm delighted that the Supreme McDonald Court is going to decide this issue." Regent-elect Andrew Richner (R-Grosse Pointe Park) had a different reason for sup- porting the Supreme Court's decision. He said he was glad the Supreme Court will hear the cases because he felt Regents of the University of California v. Bakke, the Supreme Court precedentn used in cases regarding k race-conscious admissions, needed elaboration. "I think the issue is ripe for consideration," Richner said. "The Bakke decision is a murky decision that begs for some sort of clarifica- tion on what the Court meant." He added that disagreement among lower court rulings, something he hopes will change after the Supreme Court rules. "You've got the 5th Circuit in the Hopwood v. University of Texas ruling striking down -the University of Texas and then you have the 6th (Circuit) Court of Appeals upholding the Uni- versity of Michigan's admissions process. The courts are all over the map on this." he said. Law School Dean Jeffrey Lehman disagreed with Richner. "I think Bakke is pretty clear," he said. "One of the lessons from Bakke is that lawful forms of affirmative action are tailored to the con- texts where they are being used." Lehman also said he thought the Law School admissions policies would be upheld by the Supreme Court. "I am confident that the Court will recog- nize both the lawfulness and the importance of our admissions policies," he said. Regent Olivia Maynard (D-Goodrich) expressed support for current admissions policies and said she is glad the University is leading, the fight for race-conscious admis- sions policies. "I think the program we've been following: is the correct one," she said. She also noted the historical importance of the decision. "This (will) be the first time in, 25 years that the United States Supreme Court has visited this issue." Not everyone supports the University's use: of race as a factor in its admissions policies. While philosophy Prof. Carl Cohen said their, motives are good, he openly called the poli- cies discriminatory. "I was pleased because I think it's important: that these principles be clarified," he said. "It is a: racially discriminatory system that we employ.: Racial discrimination has always been a morally unacceptable device." McDonald talked about the importance of the University's.admissions-process4 saying, the college level is the only level of public" education that doesn't have to draw its stu- dent body from a specific geographical area. He said this allowed the University to actively, build a diverse student body. McDonald also said he felt a Supreme Court ruling would lend legitimacy to admis- sions procedures used by the University. "Validating our admissions policy will be recognizing the reality that higher education in America is the most important level of education for building a diverse society," McDonald said. "I think that the Supreme Court will pro- vide a validation of the Bakke decision," he added. A decision in favor of the University would allow it to continue its admissions pro-, cedures. But McDonald declined to speculate on what decision the Court would render after hearing the case. Senior Vice Provost for Academic Affairs Lester Monts was more willing to predict the outcome of the cases, which will probably come down in early summer. "We're pretty confident that the Supreme Court will rule in our favor," Monts said. "I think that we have a superb set of lawyers representing the University. I think our evidence is strong, and I think that (we) will be able to mount a convincing case." But Cohen said five of the nine Court justices clearly support the plaintiffs' case, and several other justices may also rule against the University. "The likelihood of the University finding five votes on the board to support its racially discriminatory program is very low," he said. In the end, the only thing all administrators can say is that the University must wait for the decision from the Court. "Whether it's good or bad for the Universi- ty, I think we. have to wait for the decision," Richner said. - Daily Staff Reporters Jeremy Berkowitz and Megan Hayes contributed to this article. Past and present Universityfresidents o timistic about outcome o awsits PRESIDENTS Continued from Page 1 "Society needs clarification on this so we can recommit ourselves to integration," Bollinger said. "From a broader perspective, I think it's very important that the Court speak on this issue." would suffer greatly," he said. "It would also chart a new course away from the enormously important deci- sion in Brown." While University officials were opposed to a decision by the Court to review the cases, they maintained that if the Court were to hear an appeal in one case against the Univer- sity, it should take them both. ''~ ;;.