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Federal Court Upholds U-Michigan’s Use of Race in Admissions

Federal Court Upholds U-Michigan’s Use of Race in Admissions
By Erik Lords

Supporters of affirmative action across the nation are feeling upbeat after a judge’s ruling in federal court here upheld the University of Michigan’s use of race in admissions last month.
The decision — which came just one week after an affirmative action victory in Washington State — might shift national momentum back in favor of higher education’s use of race in admissions, several experts says.
“The judge made the right decision — morally, practically and legally,” says Dr. William B. Harvey, director of the Office of Minorities in Higher Education at the American Council on Education. “I think the judge realized that students from all backgrounds benefit from a diverse learning environment, and that educational apartheid will lead to social apartheid.”
Last month the 9th U.S. Circuit Court of Appeals found that the University of Washington Law School acted legally when it considered an applicant’s race in admissions decisions (see story, pg. 22). A week later in a 51-page decision, U.S. District Judge Patrick Duggan ruled that Michigan’s current affirmative action admissions program is constitutional, but he also said that Michigan’s old policy, used from 1995-98, was unconstitutional because it reserved a specific number of spots for minority students.
 â€śA racially and ethnically diverse student body produces significant educational benefits such that diversity, in the context of higher education, constitutes a compelling government interest,” Duggan wrote in his decision.
In recent months, officials at the University of Michigan — who defended their policies by presenting expert research on the value of diversity — gained the support of 20 Fortune 500 companies and dozens of educational associations, many of which wrote briefs to the court on the university’s behalf (see Black Issues, Nov. 9). The case also was being monitored closely by other colleges that use race as a factor
in admissions.
“This victory shows that the pendulum is swinging back in support of affirmative action,” says Michael Steinberg, an attorney with the American Civil Liberties Union in Detroit and one of the lawyers who represented a group of minority students who intervened on behalf of Michigan in the case. “The two opinions together are a forceful rejection of a broadside attack on affirmative action.”

Ongoing Litigation?
But lawyers for the plaintiffs say the case is far from over, and that an appeal is likely. “This is an early inning in a long ballgame,” says Terry Pell, an attorney for the Center for Equal Rights, a group representing plaintiffs in the Washington and Michigan cases. The Washington, D.C.-based law firm represents Jennifer Gratz and Patrick Hammacher, the two White students who sued Michigan claiming they were rejected because Black and Hispanic students with lesser credentials were admitted.
Pell says Gratz, Hammacher and hundreds of other students in the class action suit against Michigan can receive monetary awards based on Duggan’s ruling that the institution’s policy was illegal when the plaintiffs applied. He declined to say how much they might be entitled to or how much he would ask for. Four rejected applicants in a similar Texas case received only $1 after a judge denied their request for more than $5 million in damages.
Michigan lawyers say they doubt that the university, which already has spent more than $4 million defending the case, will ever have to pay the plaintiffs. A scenario in which Michigan would pay punitive damages “is extremely farfetched,” says Elizabeth Barry, attorney for the university.
“The judge ruled that even in the years that he took issue with our policy, that our officials thought they were acting reasonably within the law,” she says. “CIR would have to have proof that we intended to hurt their clients and then prove that their clients suffered damages because of our actions.”
Robert Post, a law professor at the University of California-Berkeley School of Law, agrees. “Just because it was unconstitutional at that time does not mean that Michigan [officials] acted in bad faith,” Post says.
For CIR, which has fashioned itself as one of the nation’s leading anti-affirmative action crusaders, the loss is the second setback in less than a month.
“What you’d hope is that the light bulb would turn on for CIR and they’d see that they have a narrow, self-serving interest,” Harvey says. “This judicial decision responds to the actions they have been taking.”

Supreme Court-Bound?
It is uncertain whether the back-to-back victories for affirmative action will permanently halt recent trends against the policies. In July, a federal court in Georgia ruled that an admissions system there was unconstitutional (see Black
Issues, Aug. 17). In 1996, the conservative 5th U.S. Circuit Court of Appeals decided a case against the University of Texas Law School, which effectively banned institutions in Louisiana, Texas and Mississippi from using race as a factor in admissions. The Supreme Court, which declined to review that case because the school had already changed its policies, has not addressed the affirmative action issue in more than 20 years.
Many experts think that the Michigan case will eventually be heard before the Supreme Court, but like Texas, the university has changed its policies, so the high court might decline hearing the case. Post, of the Berkeley Law School, says if CIR appeals and Duggan’s decision is upheld in appeals court, the case still might never make it to the high court. If the Supreme Court “is still smarting from the Gore-Bush decision, it might not want to take on something that is such a political firestorm,” Post says. “That could be very good news for Michigan.” 

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