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Minority Students May Be Star Witnesses in U-Michigan Affirmative Action Lawsuit

Minority Students May Be Star Witnesses in U-Michigan Affirmative Action Lawsuit
Landmark case could turn on their campus experiences
By Erik Lords

The 17 Black and Hispanic students who last year won the right to intervene in an affirmative action lawsuit against the University of Michigan at Ann Arbor soon could be star witnesses in the controversial case, rather than just the supporting cast.
After hearing the first arguments of the case last month in U.S. District Court here, Judge Patrick J. Duggan suggested that he might not have a trial to hear the university’s argument, which defends its affirmative action policies by stressing the educational benefits of diversity. Instead Duggan might want a trial to hear the student intervenors’ argument: that Michigan needs to preserve its affirmative action policies to remedy past and present discrimination on its campus. Regardless of his decision — which had not come in at Black Issues press time — the trial likelywill end up in the U.S. Supreme Court and have national repercussion for all public universities.
The students were selected from a group of more than 80 prospective UM applicants based on their grade-point average and their involvement in extracurricular activities. The student intervenors are all Black high school or college students — 12 girls and 5 boys — who have grade point-averages of 3.0 or higher. Eleven are from Detroit, five are from Ann Arbor and one is from Adrian.
“I might not need affirmative action to get into Michigan, but I think this case is more important than just me or the students who are applying now,” says Niyah Carmichael, a senior at Renaissance High School who has a 3.8 GPA. “It’s for my little brother or sister and people who will want to go there in the
future.” Carmichael is applying to Howard, Michigan and Spelman.
The 37,000-student university faces two lawsuits filed in 1997 over its use of race and ethnicity in considering whom to admit. Last month’s hearing involved the suit filed by two White students over the undergraduate school’s admissions policies. The other suit, scheduled to go to trial next month, involves the law school’s admissions criteria.
About 40 demonstrators in favor of the admissions policies, some carrying hand-lettered signs, chanted and marched peaceably outside the federal courthouse before the hearing. The group included students from Michigan’s Ann Arbor and Flint campuses, Michigan State University and Detroit-area high schools, organizer Shanta Driver says.
“These cases … will determine the fate of affirmative action not only in Michigan but in every school in the nation,” Driver says. “If the affirmative action programs are struck down at the University of Michigan, then similar plans at other schools will be in jeopardy.”
The high-profile case has piqued the interest of some of the nation’s largest civil rights groups and skilled attorneys. Representing the intervenors are a group of parents, students, local lawyers and civil rights groups: the NAACP Legal Defense and Education Fund, the Michigan chapter of the American Civil Liberties Union and the Mexican American Legal Defense and Education Fund. 
Godfrey Dillard, a Detroit lawyer representing the minority students, says that egos and self interests have been tossed to the side because all of the 11 attorneys involved know  that the stakes are too high to waste time squabbling.
“We’ve worked very well together because we know we’ve got a monumental task,”
Dillard says.
The group of lawyers from the various organizations grew out of a conversation Dillard had with his friend and mentor Milton Henry while the two were having lunch shortly after the lawsuit against Michigan was filed in 1997.
“We just started talking about the case and what it could mean to minority students,” Dillard says. “We never thought that it would grow to where we were working with the national groups.”
From there, the two decided they would work pro bono on the case and started networking with and reaching out to Black churches, parents and school administrators who could serve as intervenors. Later, as word spread about their efforts, the national groups came aboard as equal partners to represent the minority students. The groups also have volunteered to finance the endeavor and have covered numerous meetings between lawyers in Detroit and New York and other costs of litigating.
Michigan’s counsel is Washington, D.C.-based Wilmer, Cutler & Pickering, which is considered one of the nation’s top law firms in defending affirmative action cases. The plaintiffs are represented by the Center for Individual Rights, a nonprofit Washington, D.C.-based law group, which over the last decade has scoured the country in search of unsuccessful college applicants to use as plaintiffs for anti-affirmative action lawsuits.
The case began when two White students — Jennifer Gratz and Patrick Hamacher — sued the university in 1995 and 1996 respectively, claiming that it discriminated against them to accept Blacks and Hispanics with lower test scores and grade-point averages. It has since been elevated to a class action suit (see Black Issues, Nov. 9).
At first, it resembled previous affirmative action/reverse discrimination lawsuits: White plaintiffs who felt they were wrongly denied admission were suing a highly selective public university. But the dynamics of the case changed dramatically last year when the Sixth Circuit Court of Appeals allowed the intervenors, a group of prospective applicants to Michigan and its current students, to enter the case. In doing so, the appeals court overruled a 1998 ruling in a lower court that had blocked the students from entering the case.
“People of color should be allowed to come into these cases, as parties, not as outside observers while the majority makes the decisions for us,” says Dillard. “Black and Hispanic students are the ones who could be hurt the most by this.”
Elizabeth Barry, a University of Michigan attorney, says the institution has not and will not admit to past or present discrimination, but she says the Ann Arbor institution welcomes the minority student presence.
“It’s great to have the student voices in the case; we see their defense as complementary, but it is different from our defense,” she says. “We talk about the benefits of having diversity and a critical mass of minority students. They talk about the problems that can occur when there are only token numbers of minority students.”
Kirk Kolbo, a lawyer for the plaintiffs, says that he does not want the intervenors involved because they would divert attention from the issue of whether the students he represents were discriminated against. After last week’s hearing, Terry Pell, CEO of the Center for Individual Rights, for whom Kolbo works, said the intervenors’ discrimination defense “won’t have any bearing on our argument that Michigan’s present admissions process is racially preferential.”

Historic Intervention
In a similar case in 1994, Cheryl Hopwood, a White woman, sued the University of Texas law school, claiming she was denied admission while minorities with lower grades or test scores were admitted. But a Texas court did not allow minority students to intervene, and lawyers for Hopwood prevailed. A judge’s ruling later struck down affirmative action in public universities in Texas.
The Michigan intervenors are the first such group ever allowed into an affirmative action case, and if the judge opts to have a trial involving them, it might change future legal strategies used by other universities where race-sensitive admissions policies are under attack. A reverse discrimination suit against the University of Washington is in the fact-finding stage. Meanwhile, officials at highly selective public universities across the nation are monitoring the Michigan outcome because nearly all them use race as one of many admissions factors.
For Michigan, a trial involving the student intervenors could lead to embarrassing
national publicity as lawyers provide evidence of past and present discriminatory treatment of Black, Hispanic and American Indian students in federal court. Some legal observers say concern about that strategy is precisely why Michigan has hinged its defense on stressing the value of a diverse campus, rather than reopening old racial wounds. The pro-diversity argument stems mostly from the landmark 1978 Bakke vs. University of California Regents, in which the Supreme Court said that universities can use race as a “plus” factor to enhance intellectual diversity. That decision has thus far allowed universities to avoid falling on their swords and admitting past discrimination against Blacks, Hispanics and American Indians.
If granted a trial, lawyers for the intervenors say they plan to shatter the plaintiff’s arguments in several ways. First they will aim to show that the university did not discriminate against the White students. Dillard says he and his colleagues will refute the plaintiffs’ discrimination claims by presenting evidence that more than 1,200 other White applicants with lower test scores and grades than Gratz were admitted to Michigan the same year she applied.
To prove past discrimination, his group will call on prominent Black Michigan alumni who will discuss the hostile environment that minorities have faced on the university’s Ann Arbor campus over the past 30 years. To back the claim of present-day discrimination,
Dillard says that, among other evidence, lawyers representing the intervenors will use current students and discuss a system at Michigan in which Black students are required to wear wristbands at parties and social events for identification purposes. He says no such policy exists for White partygoers on the campus.
Bakke: Still Good Law?
During the legal clash, Kolbo opened the arguments cordially and in a somewhat surprising manner. He said that CIR is not against diversity per se, and that it is not against programs that aggressively recruit minority students. Some in the court expressed surprise at the remarks, saying they run counter to CIR’s past strident attacks on affirmative action.
“That’s the most I’ve ever heard them say in favor of diversity,” says Reggie Turner, a Detroit lawyer representing the intervenors. “Maybe they are evolving.”
But during the crux of his argument, Kolbo said, “We take issue with the double standard the University of Michigan imposes on the process to the detriment of many.”
Much of the legal jousting centered on whether Bakke is still good law. John Payton, a lawyer for Michigan, says Bakke allows the university to consider race to get a diverse class, even if it tips the balance in an applicant’s favor. Kolbo argued that universities can strive for an intellectually diverse class, but must do so with giving extra weight to race.
Ted Shaw, of the New York-based NAACP Legal Defense Fund and a lawyer for the intervenors, argued that affirmative action policies should be preserved because Blacks have disproportionately been hurt by the university’s policy of giving bonus admission points to applicants who are children of alumni or to those who attended top high schools.
“There is a specific history of exclusion at UM that only began to be addressed in the 1970s,” Shaw says. “There are facts in dispute and this issue is too important to resolve without a trial.”
Duggan later asked Shaw if the intervenors would consider it “less than a complete victory” if he ruled on the past and present discrimination argument without addressing Michigan’s diversity defense.
“It would be less than a complete victory,” Shaw answered. “But it would be a victory we would take.”
Michigan reported last month that Blacks, Hispanics and American Indians comprise nearly 15 percent of its freshman class, up from about 12 percent in October 1999. The university does not count Asian Americans as so-called under-represented minorities because a greater percentage of them go to
college than the other groups.
The school has spent $4.3 million to
defend itself against the lawsuits that were filed three years ago, Barry says. 

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