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ADMISSIONS ON TRIAL
The Michigan Daily - Wednesday, May 15, 2002 - 3
Law School administrators feel relief
AFFIRMATIVE
ACTION THROUGH
THE YEARS
n
By Elizabeth Kassab
Daily Staff Reporter
Relief. Satisfaction. Happiness. Vindi-
cation.
Administrators in the University's Law
School experienced mixed emotions yes-
terday as they learned that the 6th Cir-
cuit Court of Appeals ruled in favor of
the University in Grutter v. Bollinger,
reversing U.S. District Court Judge
Bernard Friedman's March 2001 deci-
sion.
Friedman had ruled in March 2001 that
the Law School's use of race as a factor in
admissions was unconstitutional.
"This is a great victory for all of high-
er education," Law School Dean Jeffrey
Lehman said.
"We've said all along that the district
court had it wrong," Associate Dean
Charlotte Johnson said.
"The 6th Circuit apparently agreed
with us," she added.
Johnson and Lehman both said they
felt the 6th Circuit's decision righted the
district court ruling.
"I truly believe that what the Universi-
ty is doing, what the Law School is
doing, is the right thing to do, and to
have the lower court distort our policy
and distort the facts and distort the law
as it did was a huge disappointment,"
Johnson said.
Lehman also said he felt a sense of
justification in the decision.
"We are able to enjoy a sense of vindi-
cation, a sense that the courts have stood,
with us and the position we have held ...
is a sound approach to preparing lawyers
to assume positions of responsibility,"
Lehman said.
"Ultimately the 6th Circuit has contin-
ued in the same line that the, Supreme
Court charted 24 years ago," he added.
Lehman was referring to the 1978 Bakke v.
University of California Board of Regents.
Justice Lewis Powell's opinion in the case set
a precedent that allows race as a consideration
in higher education admissions if it is a com-
pelling state interest.
But it is not the end of the road for the
five-year-old Grutter v. Bollinger case.
"We expect, however, that CIR will
appeal the decision, so we still have
another leg of the journey," Johnson
said.
CIR attorney Kirk Kolbo confirmed
yesterday that the firm will indeed sub-
mit a writ of petition to the Supreme
Court.
The high court has the option of
deciding whether it will agree to hear
the case.
"Assuming that happens, we will con-
tinue with our defense of the case as
vigorously as we have in the past," John-
son said.
-Oct. 1997 Jennifer Gratz and Patrick Hamacher
file a lawsuit against the University for its
undergraduate admissions process. The case is
heard by Judge Patrick Duggan in U.S. District
Court in Detroit.
?
Overruled
Eight-year battle over
admissions policies may
culminate with decision
U.S. District Judge Bernard Friedman ruled
Bollinger in March 2001.
against the University in Grutter v.
Professors share
mixed feelings on
lawsuit decision
By Jennifer Misthal
Daily Staff Reporter
For Law Prof. Rebecca Eisenberg,
educating a diverse group of students
has taught her a lot of things, which
she said is one reason she, along with
many professors, embraced yesterday's
ruling from the 6th Circuit U.S. Court
of Appeals that the University's use of
race as a factor in admissions is legal.
"The more diverse the group, the
more interesting and surprising the dis-
cussion," Eisenberg said. "Diversity is
not the icing on the cake. The ability to
negotiate and argue and talk across dis-
agreements arising through different
perspectives is the core of what lawyers
do. (The decision) goes to the heart of
what makes people need lawyers."
Eisenberg said she does not think
many professors would disagree on the
constitutionality of the verdict because
the Law School's use of race in admis-
sions helps create an excellent law
school student body.
But Philosophy Prof. Carol Cohen,
an opponent of racial preferences, said
she is outraged by the lawsuit.
"The decision of the 6th Circuit
court is long and complicated," Cohen
said.
Cohen said he feels affirmative
action violates the Fourteenth Amend-
ment and the Civil Rights Act of 1964.
"In the first place, the Fourteenth
Amendment contains an equal protec-
tion clause that says 'no state ... shall
deny to any person within its jurisdic-
tion the equal protection of the laws,"
Cohen said. "Outright discrimination
on the basis of race is a denial of the
equal protection of laws.' In my view,
we violate the Constitution. There is no
doubt that we discriminate by race; dis-
criminating by race is a denial of the
equal protection of the laws. The Civil
Rights Act of 1964 explicitly and
unambiguously states any institution
receiving federal financial assistance is
forbidden to discriminate on the basis
of race, color, or national origin.
Constitutional law Prof. Richard
Primus said a lot of uncertainty sur-
rounds affirmative action and the best
result for the issue is to produce a
majority opinion explaining what type
of diversity satisfies the equal protec-
tion laws.
"It's a very good result for the law
school because it shows the idea for
diversity is in place but we should not
see this as the end of the road," Primus
said.
However, Cohen not only sees affir-
mative action as just a legal issue, but
as a moral one too. He said the compli-
cated matter is outrageous.
Prof. John Gobetti, vice chair of the
Senate Advisory Committee on Uni-
versity Affairs said yesterday's decision
is one hurdle in this ongoing battle.
Due to the inconsistency in the district
and appeals courts' decisions, Gobetti
thinks the case will "obviously go to
the Supreme Court" where a final deci-
sion will be made on the compliance of
the case's jurisdiction.
Although Gobetti said yesterday's
verdict "is a significant victory for
higher education," he thinks the real
importance comes with the Supreme
Court's decision, should it choose to
review the case.
Until the Law School receives a
response in the expected Supreme
Court appeal, Eisenberg said she hopes
minority students will feel more wel-
come than before.
Cohen also thinks the University
will proceed exactly as they did before
the verdict with their admissions poli-
cies. due to the 6th Circuit Court's
support.
The University's case is one of
the only remaining that may still
be heard by the Supreme Court
By Shannon Pettyplece
Daily Staff Reporter
It has been a long forty-one years since the
words "affirmative action" became part of the
American lexicon after President John F.
Kennedy used the term in an executive order he
issued in March 1961, and after yesterday's
decision by the 6th Circuit Court of Appeals in
favor of the Law School's admission policies in
the case of Grutter v. Bollinger, a close to the
debate that soon started after the issuance of
that executive order may be in sight.
The case of Grutter v. Bollinger, which
brings into question the University's use of race
in admissions, is just one of the many cases
that have attempted to work their way through
the legal pipeline.
But the University's case is the only one that
has not yet been rejected for review by the U.S.
Supreme Court, increasing the chances that the
University's case will set a precedent for all
similar cases.
In the past eight years, the battle over race-
based admissions has intensified with a
"three-pronged attack" on race as a factor in
admission at public universities headed by the
Center for Individual Rights - a Washington
-based law firm that is fighting to abolish
race as a factor in public university admis-
sions.
CIR has previously represented clients who
have sued the University of Texas, the Univer-
sity of Georgia, the University of Washington
and the University of Michigan for their use of
race in admission. In two out of the four cases
CIR has lost at the appeals court level.
Since 1997, when CIR began its attack on
affirmative action, California, Washington,
Florida and Texas have all adopted state laws
prohibiting the use of race in university admis-
sions.
The first case to call race-based admissions
into question since the 1978 Supreme Court
ruling in the case of Bakke v. University of Cal-
ifornia Board of Regents was Hopwood v.
Texas. In 1992, Cheryl Hopwood and three
other white applicants sued the University of
Texas Law School, claiming they were denied
admission because of their race
In the case, the 5th Circuit Court of Appeals
ruled that the institution must suspend its use
of race in admissions and that diversity in edu-
cation was "not recognized as a compelling
state interest."
The Supreme Court denied review of this
case in 1996 and U.S. District Judge Sam
Sparks rejected all requests for further pro-
ceedings.
These decisions have prevented Texas from
seeking further appeals with regard to race in
admissions and eliminated affirmative action
admissions policies at all public universities in
Texas.
According to the University of Texas, since
the Supreme Court denied review of Hopwood
in 1996, enrollment of black students dropped
more than 90 percent in the first year.
The use of race in admissions was also
struck down is the case of Johnson v. Universi-
ty of Georgia where the 11th Circuit Court of
Appeals ruled against Georgia's admissions
policies, but did not determine whether the use
of race in admission was legal.
In November 2001, Georgia decided not to
appeal their case to the Supreme Court because
they felt cases in other states would be able to
better withstand the legal challenge of the
Supreme Court, Georgia President Michael
Adams told The Michigan Daily in November.
While the 5th and 1lth circuits have ruled
against the constitutionality of race-based
admissions, the 9th Circuit Court of Appeals
upheld it in the case of Smith v. University of
Washington where a white applicant claimed
she was denied admissions because of a her
skin color.
The Supreme Court denied review of the
Smith case, which upheld race in admissions,
just as it denied the Hopwood case that struck
down the constitutionality of race in admis-
sions.
Although the Supreme Court has not
reviewed any cases questioning race-based uni-
versity admissions since 1978, many legal
experts believe Michigan's case will be the one
the high court chooses to hear.
- Dec. 1997 Barbara Grutter files a lawsuit
against the University's Law School regarding
its admissions process. The case is heard by
Judge Bernard Friedman of the same court.
Feb. 199 A motion to intervene in the Grat
casesdeniedby Judg.Duggan.Themt,.nis
filed by high school students of color, Citizens
for Atffirmaive ctio's Prrvainthe
NAACP Legal Defense & Educational Fund, the
American Civil Liberties Union Foundation, the
ACLU Fund of Michigan and the Mexican
American Legal Defense & Educational Fund.
Mar. 1998 A motion to intervene in the Grutter
case is denied by Judge Friedman. The motion
is flied by University undergraduate students,
students at other universities, high school
students and their parents, University Law
School students United for Equality and
Affirmative action, the coalition to Defend
Affirmative Action and Integration and Fight for
Equality By Any Means Necessary.
Aug. 1999 The 6th CIrcuit court allows
intervention in both cases.
July 2000 General Motors Corp. files anicos
curiae briefs in both cases, about the need for a
diverse workforce.
SOct. 2000 Twenty Fortune 500 companies
file an amicus brief in the Gratz v . Bollinger
case.
- Dec. 2000 Judge Duggan issues 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 Bakke v.
.t+
Uiversity of Calibmia Board of Regents. Also,
Judge Friedman decides to hold a limited triaL
- - Jan. 2001 A imited trial begins relating to the
operation of the Law School admissions policy.
--Feb. 2001 The Law School admissions trial
ends. Judge Duggan dismisses the
undergraduate intervenors' claim that the
University was justified using race as a factor in
admissions to remedy the effects of past
discrimination.
Mar. 2001 Judge Friedman denies the
ntervenors' claims and issues his opinion in the
Grutter case, stating that the law does not
permit colleges and universities to use race in
admissions. He Issues an Injunction directing
the Law School from using race as a factor In
admissions. The Court of Appeals issues a stay
of the injunction allowing the Law School to
contime its poitcy.
-May 2001 The Supreme Court refuses to
review the University of Washington case. The
tower court ruling In the case upheld the
constitutionality of race-.conslous admissions.
Amus briefs are filed with the 6th Circuit
Court of Appeals in the Michigan litigation,
including the General Motors Corporation, the
American Bar Association and the United Auto
Workers.
June 2001 Business, education and social
justice organizations file amicus briefs in the
Gratz case. The Supreme Court refuses to
review the Hopwood case (which struck down
the constitutionality of race-conscious
admissions.
Oct. 2001 The 6th Circuit Court of Appeals
grant the plaintiffs' motion for hearing oral
Higher education institutions
hope decision will allow for
future discussion of policies
By Donielle Cunningham
For the Daily
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-I.1 u m u k1 I t r2m: r un i
Although the verdict given yesterday by the
6th Circuit Court of Appeals itself does not
necessarily directly affect them, schools and
colleges around the country have been paying
close attention to the lawsuits against the
University of Michigan.
"We're very pleased," University of Texas
Law Prof. Douglas Laycock said. "It doesn't
do anything to help us in the short run, but
we have certainly been aware of it."
In the long run, if the Supreme Court
decides to hear it, the case could affect not
only the University of Texas, wherethe Hop-
wood decision outlawed race-conscious
admissions in every school in the 5th Circuit
- schools in the states of Texas, Mississippi
and Louisiana - but every college nation-
wide.
"I think it increases the likelihood that the
Supreme Court will take your case and the
Supreme Court is the only thing that can help
us now," Laycock said. "The rest of the coun-
try would be better off if they take it and
affirm it."
"We're just hoping for a supreme court rul-
ing" in favor of Michigan, he said.
Since the Hopwood decision, Texas has
been using what Laycock described as "color-
blind" admissions. The new policy has had an
unfortunate affect on the diversity of the stu-
dent body at Texas, Laycock said.
"Minority enrollment
plummeted right after
Hopwood, it's back up
again, but not nearly to
where it was,"
- Douglas Laycock
University of Texas Law professor
of their admissions policies, though the
Supreme Court's decision will not affect
schools in that state either way because of
Proposition 209, a state law passed by Cali-
fornia voters in a 1995 statewide referendum
that banned the use of race in college admis-
sions.
Last summer, the 22 UC regents repealed
their support of the ban, saying that they
believed banning the policies sent out a nega-
tive message to their students.
Joe Wills, director of public affairs at
Chico State University in California, said that
he does not feel California 's color-blind
admission's process is the best policy.
"(Proposition 209) made it difficult to real-
ize our mission, which is to make as much
educational access to as many people as pos-
sible," Wills said.
Wills said that although it will not affect
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NEWS Maria Spr
EDITORS: Jeremy Berkowitz, Karen Schwartz
STAFF: Shoshana Hurand, Eiabeth Kassab, Sh ma S. Khatri, Jennifer Misthal, Shannon Pettypece. Kara Wenzel
EDITORIAL Z
STAFF John Honkaia Kevin McNeil
COLUMNISTS: Luke Smith
SPORTS J. Brady McCollou
SENIOR EDITORS: Bob Hunt, Charles Paradis, Jim Weber
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ARTS Lyle Henretty, Luke Smil
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ow, Managing Editor
ac Peskowitz, Editor
gh, Managing Editor
th, Managing Editors
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