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Taking Sides

Taking Sides
Legal scholars may be divided on the possible outcome of the University of Michigan’s affirmative action cases, but they all agree it will be historic
By Erik Lords

As lawyers on both sides make their final preparations for the approaching April 1 deadline to present oral arguments to the U.S. Supreme Court in the University of Michigan’s two affirmative action cases, legal scholars say it’s anyone’s guess on who will eventually prevail in the landmark decision.

Marvin Krislov, vice president and general counsel for the University of Michigan, says the university will present the U.S. Supreme Court with new amicus briefs expressing support from “religious groups that haven’t yet spoken out on the issue, military organizations and more K-12 organizations.” The private universities will be speaking out more also because they have a stake in this as well — you will hear more from the Ivies,” Krislov says.

In addition, at Black Issues press time, Dr. Mary Sue Coleman, president of the University of Michigan, was expected to hold a press conference Feb. 17 during the American Council on Education’s annual conference in Washington. Representatives of organizations filing amicus briefs on behalf of the university also were expected to speak at the news conference.

The university expected more than 50 briefs to be filed, and more than 200 organizations to sign on to those briefs — including Fortune 500 corporations, former military leaders, labor unions, members of Congress, civil rights groups, law schools and legal associations, Asian/Pacific American groups, Jewish groups, social science organizations and researchers, the medical/health professions, several states, and numerous higher education groups, colleges and universities. The deadline for the university and all of its amicus supporters to file their briefs with the court was Feb. 18.

Susan Bloch, a law professor at Georgetown University, says Michigan’s new wave of “friend of the court” briefs “are meaningful, but I don’t think they are controlling at all. They indicate that many segments of society accept the Michigan policies, and it’s the way the country is moving. Some justices will be more than happy to go against that, but I think the middle justices will pay attention,” to the sentiment expressed in the briefs.

In another strategic move, Michigan will address the court with a newly added attorney, Maureen Mahoney, an experienced Supreme Court litigator who has argued 11 cases before the court and won 10 of them. She will join John Payton, who argued Michigan’s cases on the district and federal circuit court levels.

The addition of Mahoney will add legal firepower and expertise, but Michigan plans “no sort of fundamental changes to our strategy,” Krislov says. “But obviously we want to keep abreast of any current developments or any new claims our opponents and their amici are making.”

‘Fundamentally Flawed’

President George W. Bush in mid-January called the University of Michigan’s admissions policies “fundamentally flawed,” and said that although he strongly supports diversity of all kinds, including racial diversity in higher education, “the Michigan policies amount to a quota system that unfairly rewards or penalizes perspective students, based solely on their race.”

U.S. Solicitor General Theodore B. Olson and other critics of Michigan’s admissions policies reportedly were unhappy that Bush’s briefs and his comments to the nation did not go far enough, because the president did not ask the court to overturn the landmark 1978 Bakke v. Regents of University of California case, which struck down quotas but permitted the use of race as a factor in admissions.

Bush’s views on the Michigan case might be amplified in person before the Supreme Court. Olson, acting as Bush’s agent this month, requested to speak before the court for 10 minutes during oral arguments to expand Bush’s views.

Olson, while in private practice, was hired by two of the four White plaintiffs in a case filed in 1992 against the University of Texas School of Law. Arguing before the U.S. 5th Circuit Court of Appeals in New Orleans, Olson contended that achieving diversity did not justify using race as a factor in admissions. In 1996, the court agreed, and ruled the admissions policy unconstitutional.

In the motion filed this month, Olson said the two Michigan cases raise “important questions concerning the consideration of race in university admissions,” and that the U.S. Department of Justice has the responsibility to enforce the equal protection clause of the Constitution and federal civil rights laws.

Curt A. Levey, director of legal and public affairs at the Center for Individual Rights (CIR), the Washington-based legal foundation that represented plaintiffs in both Texas’ Hopwood case and in the Michigan case, says the group would give Olson time to express the government’s views.

“He will help us because he is somebody who is respected on both sides of the case,” Levey told Black Issues. “But we are confident of winning based on the law and the facts and not just on who is on our side.”

A Historic Decision

The lawsuits against the University of Michigan, filed in 1997 on behalf of three White applicants, claim the university unconstitutionally uses race as a factor in admissions to the university’s undergraduate colleges of literature, science and the arts, as well as to the university’s law school.

Undergraduate applicants Jennifer Gratz and Patrick Hamacher claimed that the university discriminated against them to accept Blacks and Hispanics with lower test scores and grade-point averages, even though more than 1,200 other White applicants with lower test scores and grades than Gratz, for example, were admitted to Michigan the same year she applied, said Godfrey Dillard, a Detroit lawyer who was representing the Black and Hispanic students who won the right to intervene in the university’s affirmative action case (see Black Issues, Dec. 7, 2000). Law school applicant Barbara Grutter also filed a lawsuit in 1997, claiming she was denied admission to the university’s law school in favor of less-qualified minorities.

This spring the case will end up in the highest court of the land, and could have the most seismic impact on higher education in 25 years.

Nearly all legal scholars agree that the affirmative action lawsuits against the University of Michigan’s Ann Arbor campus and its law school are historic. And now that Bush has weighed in on the issue, the case is receiving unprecedented attention from the media and public. With oral arguments beginning in April, the court could rule as early as June.

Taking Sides

Robert A. Sedler, a constitutional law expert and law professor at Wayne State University in Detroit, predicts that the Center for Individual Rights, which represents Gratz and the two other plaintiffs who claim they were denied admission in favor of less qualified minorities, will make a twofold argument. The first is, that the U.S. Constitution prohibits from taking race into account, and second, even if it did allow race to be considered, the Michigan plan weighs race too heavily and effectively uses a racial quota, which is unconstitutional.

Michigan, on the other hand, will have to persuade the justices that the Constitution does allow race to be used, and that its particular program is narrowly tailored enough to achieve that goal, Sedler says.

Sedler also says the court will likely revisit Bakke, the Supreme Court decision that most U.S. colleges and universities have used to craft their admissions policies for more than two decades.

Ted Shaw, associate director of the NAACP’s Legal Defense and Educational Fund Inc., which represents minority students intervening in the undergraduate case, says Bush presented the nation with “a politically adroit statement that ignores the facts and cynically manipulates White working-class concerns about access to higher education.”

Shaw also says that the president “did not take a hard-line stance in opposition to affirmative action, but he is advocating a standard that makes it impossible for colleges and universities to practice race-conscious admissions.”

Bush and other critics of affirmative action have suggested that Michigan consider other alternatives that do not take into consideration an applicant’s race. Texas, California and Florida are the three states that have tried a “percentage plan” based upon high-school class rank for admission to their public universities. Under these plans, a fixed percentage of the graduating class of each high school in the state is guaranteed admission to one or more universities in the state system. The plans are intended to replace race-conscious admissions systems while still achieving the goal of racial diversity in the student body.

Michigan’s President Coleman says the problem with percentage plans is they select students only on the basis of their high-school grades, ignoring leadership abilities, activities and teacher recommendations.

“The percentage plans that some states have tried to achieve diversity in admissions would not work for Michigan, nor for most other colleges and universities in the country,” Coleman said in response to Bush’s announcement on affirmative action. “There is no substitute for the careful consideration of race as one of many factors in a competitive admissions process. No alternatives can achieve the goal of a diverse student body while maintaining the high academic standards for which we strive.”

But those who oppose affirmative action say percentage plans are better because they rely solely on grades.

“They extend a helping hand to all disadvantaged people, not just those of certain races,” says Levey of the Center for Individual Rights.

Sedler says if Michigan is forced to use a percentage plan it would drastically change the make-up of its undergraduate student body.

“It wouldn’t be U of M anymore,” he says. “You would have students who might be in the top 20 percent of their class at an average high school but still not have 900 on the SAT. Under a percentage plan, that person would be guaranteed admission to U-M.”

Such a plan also could hurt White students who attend highly competitive schools, Sedler says. They might be strong students, but still not in the top 20 percent of their class, and could lose out on spots to other White students who rank high at a sub-par high school.

Lawyers for the University of Michigan say there are other reasons percentage plans would not work:

l The demographics of each state are different, and the results of these plans in various states would be uneven at best.

l The plans take away the judgment of educators as to whether individual students are academically qualified for the level of work required at each college. Students in the top 10 percent of failing schools may be unprepared for college-level work and may require remedial support.

l Plans that rely solely on class rank encourage students to avoid hard classes and more competitive schools at the high-school level, in order to superficially improve their grade point average and class rank.

l The plans only work for universities that admit primarily from a statewide population. Public and private colleges and universities that recruit students from a national and international pool cannot apply this model to select their student bodies. At Michigan, for example, one-third of the student body comes from outside the state, and most of the Latino students who enroll are not Michigan residents. Over half of the applicants for Michigan’s freshman class are from out of state, while only 11 percent of applicants to the University of Texas at Austin are nonresidents.

Raul Yzaguirre, president of the National Council of La Raza, says the administration’s proposal to replace affirmative action with “affirmative access programs, such as the top 10 percent plan in place in Texas, is disingenuous, at best.” Relying on such plans would replace “a proven policy with an uncertain one,” Yzaguirre says. “To the extent affirmative access works in Texas and California, it is because these states have very large Latino populations dispersed throughout many schools. In Michigan and many other states, where Latinos are heavily concentrated in only a handful of schools, it is doubtful that affirmative access will be as effective.”

Divided on Possible Outcome

How the court might rule on the case is anyone’s guess, legal experts say. Many liberal scholars predict that the Supreme Court will uphold the U.S. 6th Circuit Court of Appeals in ruling that the university’s policy of considering race in admissions is constitutional. Conservative scholars say the high court will likely uphold the 5th Circuit Court of Appeals 1996 decision in Hopwood v. State of Texas, and strike down the Michigan plan.

In an interview last year, Lino A. Graglia, a prominent University of Texas law school professor who has been an outspoken critic of affirmative action, said the law and the Constitution will have nothing do with the Supreme Court’s decision.

“It will all be about individual judgments,” Graglia told a Detroit newspaper. “We want to pretend that these things are decided on the basis of the law, but that’s perfect fiction.”

William Van Alstyne, a law professor at Duke University who is teaching at the University of Michigan Law School this semester, says Justices Anthony Kennedy, William Rehnquist, Clarence Thomas and Antonin Scalia definitely would vote against U-M’s policy. So might Sandra Day O’Connor and John Stevens. The other justices, David Souter, Ruth Bader Ginsburg and Stephen Breyer probably would vote to uphold it, he says.

Bloch of Georgetown University predicts that O’Connor will uphold Michigan’s policy, noting that O’Connor’s record varies when it comes to affirmative action employment programs related to government contracts.

“She’s a key vote, and she might want to use the Michigan cases to show that consideration of race is not fatal, and that there might be some affirmative action programs that are constitutional,” Bloch says. “She might say that the law school program is constitutional because it’s more flexible and does not rely on numbers, but she might find the undergraduate case to be unconstitutional because of its point system.”

Others predict that the court might rule against the Michigan policies, and issue new guidance that is clearer than the Bakke decision — on how colleges can and should build their entering first-year classes.

“The best case would have been if he (Bush) came out in favor of the Michigan program, but that didn’t happen,” says Sheldon E. Steinbach, vice president and general counsel for the American Council on Education in Washington. Steinbach says he thinks the court will suggest specific changes to affirmative action programs rather than eliminate them altogether.

“I think colleges will still be able to utilize race as a plus factor under specified conditions,” that the court might structure, Steinbach says.

While acknowledging that Bush’s comments have given the cases and the national debate about affirmative action unprecedented visibility, some legal experts still believe that the law — not public opinion or politics — will guide the justices as they hear arguments.

To have their voices heard, some of the student intervenors in the undergraduate case, along with a diverse national coalition of student leaders and national civil rights organizations will have a pro-affirmative action march in Washington on the first day of oral arguments.

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