Next Stop, Supreme Court?

Appeals court upholds affirmative action at University of Michigan Law School

A federal appeals court last week narrowly upheld the use of affirmative action

in admissions at the University of Michigan Law School, potentially setting the stage for the Supreme Court to weigh in on the controversial practice for the first time in more than two decades.

Although it is very difficult to predict whether the Supreme Court will take a particular case, legal analysts say that last week’s decision, by a bitterly divided U.S. Court of Appeals for the Sixth Circuit, is a strong candidate for review by the high court, probably next year. The decision conflicts with the rulings of two other federal appeals courts.

“This is teed up” for the Supreme Court, said Douglas Laycock, a professor at the University of Texas School of Law.

In last week’s decision, the Sixth Circuit held, 5 to 4, that the Michigan law school’s admissions policy is permitted under the U.S. Constitution because the school needs such a policy to maintain an educationally diverse learning environment.

In a strongly worded dissent, the court’s minority countered that the case “involves a straightforward instance of racial discrimination by a state institution.”

The ruling overturned a lower-court decision that the law school, on Michigan’s Ann Arbor campus, illegally discriminated against white applicants.

The Sixth Circuit said it was not yet ready to rule on a separate lawsuit involving undergraduate admissions policies at the University of Michigan. Because those policies differ substantially from the law school’s, and are much more rigid and formulaic in giving advantages to minority applicants, many legal experts believe that the Sixth Circuit might rule against Michigan in the undergraduate case.

The law-school decision puts the circuit, which encompasses Kentucky, Michigan, Ohio, and Tennessee, at odds with the 11th Circuit, which covers Alabama, Florida, and Georgia, and the 5th Circuit, which comprises Louisiana, Mississippi, and Texas. In both the 5th and 11th Circuits, federal appeals courts have struck down race-conscious admissions policies.

In December 2000, the Ninth Circuit court, which covers nine Rocky Mountain and Pacific states, upheld a race-conscious admissions policy used by the University of Washington’s law school. That decision was largely moot, however, because Washington voters had recently adopted a ban on the use of racial preferences by state agencies.

Although University of Michigan officials and advocates of affirmative action hailed last week’s ruling by the Sixth Circuit as a major victory, they readily acknowledged that the debate over the practice in college admissions had hardly been settled.

Lawyers for the plaintiff, an applicant rejected by Michigan’s law school in 1997, almost immediately announced plans to appeal to the Supreme Court, and lawyers for all sides described the case as a good one for the high court to take up, because it so starkly frames the key points of contention between critics and defenders of race-conscious admissions.

“I think almost everybody agrees that it is time for the Supreme Court to clarify this area of the law,” said Terence J. Pell, chief executive officer of the Center for Individual Rights, an advocacy group that has helped represent the plaintiffs in the Michigan law case and in other challenges to colleges’ affirmative-action policies.

“The deep divisions in the Sixth Circuit -- and the animosity between its majority and minority -- are symptomatic of a complete breakdown of this area of the law,” Mr. Pell said. “Questions are being raised that reliance on legal precedent just can’t answer.”

Roger B. Clegg, a lawyer for the Center for Equal Opportunity, an organization that opposes affirmative action, predicted that last week’s ruling also might eventually force the Bush administration to take a stand on the issue of affirmative action in college admissions.

“When this case goes to the Supreme Court, it will put the Bush administration on the spot,” Mr. Clegg said. “There is going to be a lot of pressure from the people who support racial and ethnic preferences and the people who oppose racial and ethnic references for the Justice Department to file a [friend-of-the-court] brief. It will be awkward if the administration does not file a brief at all.”

The White House spokesman, Ari Fleischer, told reporters last week that the Justice Department will review the Sixth Circuit’s decision.

Asked for the president’s views on affirmative action in college admissions, Mr. Fleischer said that Mr. Bush opposes quotas and believes in “affirmative access,” which, he said, “encourages and increases diversity on campus based on merit.” As an example of “affirmative access,” he cited a Texas law, signed in 1997 by Mr. Bush, then the state’s governor, that guarantees admission to a state university to Texas high-school students who graduate in the top 10 percent of their class.

Seeking a ‘Critical Mass’

The two cases before the Sixth Circuit -- Grutter v. Bollinger, involving Michigan’s law school, and Gratz v. Bollinger, the undergraduate case -- were mounted in 1997 on behalf of rejected white applicants. Each of the cases had come to the Cincinnati-based Sixth Circuit court on appeal from a different U.S. district court.

The Sixth Circuit had agreed to hear and consider both cases at the same time, given their similarities. Last week, however, the appeals court said it would rule on the undergraduate case later. It did not offer an explanation for the delay, but the various written opinions offered by the judges in the law-school case made it clear that the cases had caused a deep and acrimonious rift among them.

In the lower court’s decision on the law-school case, issued in March 2001, Judge Bernard A. Friedman struck down the school’s admissions policies as essentially an illegal quota system. He accepted the plaintiff’s lawyers’ arguments that the Constitution clearly prohibits colleges from discriminating against applicants based on race, and that any purported evidence of the educational benefits of discriminatory admissions policies is therefore irrelevant.

Judge Friedman said that Michigan had an unwritten policy to enroll a “critical mass” of minority students, which over the years meant from 10 to 17 percent of the members of each class. He also found that the law school’s minority students, on average, had lower scores on the Law School Admission Test and lower grade-point averages than other admitted students.

Last week’s decision by the Sixth Circuit almost entirely rejected Judge Friedman’s reasoning.

The majority opinion, written by Chief Judge Boyce F. Martin Jr., an appointee of President Jimmy Carter, concluded that the law school has a compelling interest in considering race in admissions, because maintaining a racially and ethnically diverse enrollment was essential to “educational diversity” -- exposing students to peers with different backgrounds and views.

The majority relied heavily on the reasoning that Justice Lewis F. Powell Jr. put forward in the last Supreme Court decision dealing directly with affirmative action in college admissions, the 1978 ruling in Regents of the University of California v. Bakke. Justice Powell rejected the use of racial quotas in admissions but said that colleges could legally consider race as a “plus” factor in admissions because that would not result in decisions based solely on race. The government has a compelling interest in letting universities use race in admitting students, Justice Powell argued, because a diverse environment is essential to the education experience.

The lawyers for the plaintiff in the law-school case had argued that Justice Powell was speaking only for himself in articulating the diversity rationale for affirmative action. They said that the other four justices in the five-member Bakke majority had not explicitly endorsed that argument, and instead held the view that affirmative action was justified only as a remedy for racial discrimination. Judge Friedman had accepted that argument, and he also noted that subsequent Supreme Court decisions, mainly in cases involving minority contracting, had rejected the use of affirmative action to remedy societal discrimination.

The Sixth Circuit’s majority disagreed, contending that Justice Powell had, in fact, spoken for the other four justices in the Bakke majority and that “Bakke remains the law until the Supreme Court instructs otherwise.”

The majority also rejected Judge Friedman’s conclusion that Michigan was, in effect, operating a quota system by trying to maintain a “critical mass” of underrepresented minority students on its campus. Such an enrollment goal does not amount to a “fixed goal or target,” Judge Martin wrote. Race and ethnicity “are potential ‘plus’ factors in a particular applicant’s file, but they do not insulate an applicant from competition or act to foreclose competition from nonminority applicants,” he wrote.

The court also said it was reluctant to interfere with the affairs of public universities, arguing that the institutions themselves are the best judges of what admissions policies to use. And it accepted the university’s argument that all of the students enrolled by the law school were qualified to be there.

‘Real Rights of Real People’

The minority opinion, written by Judge Danny J. Boggs, an appointee of President Ronald Reagan, concurred with the lower court’s view that Justice Powell’s educational-diversity rationale was not binding, and that Michigan was running the equivalent of a quota system. The opinion also took the law school to task for not seeking alternatives to racial preferences in its pursuit of diversity, and argued that the law school’s educational rationale was belied by its failure to give more consideration to students who were diverse in ways that had nothing to do with race.

“Michigan’s plan does not seek diversity for education’s sake,” Judge Boggs wrote. “It seeks racial numbers for the sake of the comfort that those abstract numbers may bring. It does so at the expense of the real rights of real people to fair consideration.”

“Even a cursory glance at the law school’s admissions data reveals the staggering magnitude of the law school’s racial preference,” Judge Boggs wrote. “Its admissions officers have swapped tailor’s shears for a chainsaw.”

The majority and minority not only were at odds over fundamental legal questions and their assessment of Michigan’s policies, but also traded jabs over procedural matters. Judge Boggs and other members of the court’s minority accused the majority of manipulating the court’s calendar and procedures to ensure that the case would not be ruled on until two judges critical of affirmative action had retired. Members of the majority denied the allegation and contended that the accusers were unjustly tarnishing the court’s reputation to advance their own ends.

One question that neither side discussed at any length was whether the University of Michigan needs race-conscious admissions policies to remedy its own discrimination against minority applicants and students.

Several black and Hispanic students, and prospective students, had intervened as defendants in the case to try to present evidence that Michigan is guilty of racially discriminatory practices that require the remedy of affirmative action. They have charged, for example, that the university uses racially biased admissions tests and allows the existence of a hostile environment for minority students on its campus.

Even though the opinions were largely silent on those allegations, one of the lawyers for the intervening defendants, Miranda K.S. Massie, called the Sixth Circuit’s ruling “a spectacular and historic victory.” She said she planned to continue to press such arguments if the case is taken up by the Supreme Court.

Several lawyers involved in the case, as well as outside legal experts, expressed surprise that the Sixth Circuit had not handed down a decision last week in the case involving undergraduate admissions. Most hesitated to draw any conclusions about the delay, but a few said that it may signal that the court has had a harder time deciding the undergraduate case.

Given that the majority of the Sixth Circuit’s judges endorse Bakke, the court appears likely to hold that Michigan also has a compelling interest in considering race and ethnicity in undergraduate admissions. The court could, however, rule against Michigan based on specific elements of its policies.

Unlike the law school, which considers each candidate individually, Michigan’s chief undergraduate program, the College of Literature, Science, and the Arts, uses a formulaic point system to rank applicants. Those who are black, Hispanic, or American Indian receive an automatic 20-point bonus on a 150-point scale. That is equivalent to raising an applicant’s grade-point average from 3.0 to 4.0, and the lawyers challenging the policy have argued that such an edge is far larger than the “plus” envisioned by Justice Powell.

Adding a Plus

The majority in the law-school case stressed that its approval of the admissions policies was based largely on testimony that the law school evaluated each applicant individually and considered “a range of factors, such as leadership, work experience, unique talents or interests, and the enthusiasm of an applicant’s letters of recommendation.” Given that race is just another factor taken into account in judging an applicant, the edge given to black, Hispanic, or American Indian candidates is very much in line with the “plus” that Justice Powell thought such applicants could receive.

However, the undergraduate policy sorts applicants -- weeding out some and virtually assuring admission for others -- through a point system that is not flexible enough to give many applicants with exceptional backgrounds or unique talents an edge comparable to that received by underrepresented minority students.

Officials at the University of Michigan welcomed last week’s ruling in the law-school case as a clear victory. “I am pleased the court recognized that diversity brings educational benefits to all students -- minority and majority alike,” said the university’s interim president, B. Joseph White.

David Ward, president of the American Council on Education, also welcomed the court’s decision, saying it “acknowledges the historical latitude that higher-education institutions must have in determining who to admit for a course of study.”

But Bradford Wilson, executive director of the National Association of Scholars, which favors a traditional curriculum and has opposed affirmative action in admissions, argued that the appeals court’s ruling “perpetuates racial double standards in college admissions, harming the moral and academic integrity of the universities that employ them.”

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