Same Team, Different Strategy
The Lawsuit Challenging Michigan’s Affirmative Action Policies has
Produced a Wide Spectrum of Supporters Who are Prepared to Defend the University’s Pursuit of Diversity
ANN ARBOR, Mich. — The University of Michigan prides itself on its commitment to maintaining a racially diverse campus. Indeed, here at the nation’s 10th-largest university, nearly one in six students is a member of a minority group.
As one of the nation’s most prestigious schools, public or private, Michigan has long used a once-common tool in admissions to achieve that desired mix of students: it uses race among other factors in its admissions process.
But a federal court challenge to race-conscious criteria by two unsuccessful White applicants and a Washington-based advocacy group has propelled Michigan’s affirmative action policies into the midst of a national political and legal controversy.
And the school, while defending the need for affirmative action, finds itself in the unusual and uncomfortable position of facing suggestions from its own minority students and aspiring applicants that it has been insufficiently vigorous in that defense.
The case, like several others that have cropped up around the country in recent years, has drawn intense interest nationally because of clashing court rulings on affirmative action that have left colleges across the country with few clear answers.
Everyone, from admissions officers to top-level administrators and even student applicants themselves, has been on unsure footing because of still unresolved legal questions arising from cases in Texas, California and Georgia.
“Practically every selective university in the country consciously considers race and ethnicity in their admissions process,” says Elizabeth Barry, the University of Michigan’s associate vice president and deputy general counsel.
“The challenge to those practices threatens them all — whether at public institutions or private institutions,” she says. “A ruling that the Constitution does not permit race-conscious practices would threaten every college.”
One of the university’s best-known alumni has even weighed in on the matter. Former President Gerald Ford echoed Barry’s concerns in a recent opinion column defending his alma mater that ran in The New York Times.
“So drastic a ban would scuttle Michigan’s current system, one that takes into account nearly a dozen elements — race, economic standing, geographic origin, athletic and artistic achievement among them — to create the finest educational environment for all students,” Ford wrote. “This eminently reasonable approach, as thoughtful as it is fair, has produced a student body with a significant minority component whose record of academic success is outstanding.”
A Different Spin
But another reason the case here at the University of Michigan fascinates legal observers and worries both proponents and foes of affirmative action in college and university admissions is a recent appeals court ruling.
A host of civil rights lawyers for potential minority applicants to the university recently won the right to intervene in the case, siding with the university but taking a different tack in doing so.
While Michigan’s fundamental defense is that race-conscious admissions practices achieve educational benefits of diversity, the intervenors claim it’s also necessary to address the university’s own past record.
“In its own interest, the university chose not to rely on any possible discriminatory transgressions it may have been involved in,” says Detroit lawyer Godfrey Dillard, lead attorney for the intervenors.
“There was no choice but to interrogate the university’s race relations history to guarantee that all arguments in favor of the use of race in college admissions get a full and fair hearing in court,” he says.
“We need to present proof of present discrimination: the over-reliance on standardized tests, the favoritism of suburban high schools over urban schools and the legacy preference currently in place,” Dillard says.
The legacy preference refers the university’s policy of giving preference in admissions to children and grandchildren of alumni.
Kary Moss, executive director of the American Civil Liberties Union of Michigan, says that the minority students joining the lawsuit are conducting pretrial discovery on the issue of the university’s past record on race.
“If you look at the history of admissions, there’s a huge disparity in the numbers of African Americans and other minorities admitted compared to the general population. Just looking at those numbers, it’s obvious something is wrong,” Moss says.
In addition, while Michigan’s affirmative action policies have helped in the past, the evidence may show they haven’t gone far enough, she contends.
Dillard acknowledges that tensions may arise because the intervenors may have to dredge up a past university officials here would rather leave buried, but he insists that conflict between Michigan and the students joining the suit is not inevitable.
Barry contends the school’s intent is collaboration, not conflict: “We have the same bottom line,” she says of the university’s new partners. “We’re both fighting to preserve the university’s ability to assemble a diverse student body.
“This is not a defense divorced from the history and meaning of race in this country,” she adds. “But it’s also not a defense based on remedying past discrimination specifically.”
Demonstrations of Solidarity
The class-action suit began in 1997 when two White applicants and the Center for Individual Rights sued to challenge the constitutionality of the Michigan’s affirmative action policy. Both Jennifer Gratz and Patrick Hamacher were rejected for the university’s highly competitive liberal arts program. A separate suit is pending over law school admissions.
The two applicants were endorsed by David Jaye, a Republican lawmaker from suburban Detroit who has emerged as the state Legislature’s most vocal opponent of affirmative action.
Meanwhile, supporters of affirmative action at Michigan have held rallies and brought speakers to campus. For example, earlier this year the Rev. Jesse Jackson drew a standing-room-only crowd.
“People have pulled together to show solidarity and a united front on the issue,” says Lisa McRipley, a coordinator in the university’s Office of Multi-Ethnic Student Affairs. “Students feel the need to intervene in support of including race as a variable and speak to personal experiences of how a more diverse student population can enhance and augment people’s learning in the academic environment. By increasing the numbers, you can do away with the feeling of tokenism in the classroom, which has an adverse effect on the retention of students of color.”
One expert witness in the case, Patricia Gurin, chairwoman of the university’s psychology department, says that studies indicate students with the most ethnic and racial diversity in classrooms and on campus become better learners and more effective citizens.
Minority and non-minority students learn better in settings with people different from themselves, Gurin contends, because “being with others of different races actually seems to make young people more receptive to new knowledge.”
University officials emphasize that Michigan has not changed its policy since the suit began and that its response has been unyielding: Its admission policies are legal, use of race in the admissions process is constitutional and the policy produces a diverse student community essential to its academic mission.
Race is only one of many factors used by admissions counselors, including high school grades, test scores, geographic location, the quality of applicants’ high schools and relatives’ alumni status. There are no “quotas, targets or other numeric goals, and only qualified students with a high probability of succeeding are offered admission,” university officials said in a formal statement released in connection with the case.
The trial over undergraduate admissions policies is scheduled to start next July, to be followed in August by a separate trial involving law school admissions policies.
A Need to Intervene
In the latest major development, a federal appeals court ruled that 17 African American and Hispanic students from public and private high schools around the state and the nonprofit Citizens for Affirmative Action’s Preservation can intervene on the side of the university.
The White challengers had opposed the minority students’ participation in the suit, but the university did not even though the intervenors’ tactics may include embarrassing details about the university’s history of race relations.
To win the right to intervene, the students — all of whom said they plan to apply to Michigan — and the pro-affirmative action group successfully argued the university cannot adequately represent their interests because it’s subject to political and other influences.
“Although the university has expressed an intent to defend its consideration of race as a factor in admissions, it is undoubtedly subject to pressures that may temper its ability to defend race-conscious admissions programs,” they contended in legal papers filed by the American Civil Liberties Union, the NAACP Legal Defense and Educational Fund, and Mexican American Legal Defense and Education Fund.
“Second, the university faces less risk of harm if the plaintiffs prevail,” their legal papers state. “The university will continue to exist, although without the contributions of many African American and Latino students. But [we] face a serious risk of exclusion from educational opportunity at the university.”
The students and their attorneys also suggested that the university may face a conflict between defending race-conscious admission criteria while avoiding legal liability for discrimination.
In a 2-to-1 decision written by Judge Martha Craig Daughtrey, the 6th Circuit Court of Appeals in Cincinnati agreed, saying that a substantial decline in minority enrollment may result “if the university is precluded from considering race as a factor in admissions. Recent experiences in California and Texas suggest such an outcome.”
The appeals court also acknowledged that university officials and future students might have different interests because the university is subject to internal and external pressures that may affect its defense of affirmative action.
“We find persuasive their argument that the university is unlikely to present evidence of past discrimination by the university itself or of the disparate impact of some current admission criteria,” Daughtrey wrote. “These may be important and relevant factors in determining the legality of a race-conscious admissions policy.”
One appeals judge dissented, finding no evidence that the university would not “zealously defend its voluntarily adopted admissions policies” or resist outside pressures.
Dillard, the intervening students’ lawyer, says the recent court victory is important because it may help ensure access to the high-quality education that is essential to minority students for continued economic, social and cultural progress.
A victory by the challengers “would eliminate a critical mass of minority students at Michigan and whitewash the campus,” Dillard says. “The case can be viewed in no other way than a direct attack upon sacred minority interests.”
© Copyright 2005 by DiverseEducation.com