Race Upheld in Admissions Case

A sharply divided federal appeals court on Tuesday upheld the use of race as a factor in admissions at the University of Michigan law school, saying that the school has a compelling interest in achieving a diverse student body.

The 5-4 ruling in the case, whose progress has been watched closely by universities nationwide, reversed a lower court decision that the law school’s affirmative action policy violated the U.S. Constitution by discriminating against white applicants.

Legal scholars said it probably sets the stage for the U.S. Supreme Court to take up the issue of race-based policies in college admissions for the first time since its landmark 1978 decision in the case of Allan Bakke. Bakke, a white student, sued UC Davis in 1973 after he was rejected twice for medical school. That ruling banned racial quotas but allowed universities to use race as one factor in admissions decisions.

Nearly a quarter-century later, after a series of conflicting decisions on the issue from appeals courts nationwide, the high court should step in again to resolve the affirmative action question, several legal experts said.

“The Supreme Court has an obligation to take the case [because] the issue is so important, affecting so many people and so many interests,” said Jesse Choper, a constitutional law professor at UC Berkeley.

“There may be a limit to how many times the Supreme Court can duck the issue,” said Stanford University law professor Pamela Karlan, who served as law clerk to the late Justice Harry A. Blackmun.

She noted that four federal appeals courts in the last six years had issued conflicting decisions on the issue. The Supreme Court has declined to review any of them.

In Tuesday’s ruling, the U.S. 6th Circuit Court of Appeals said the Michigan law school was justified in its use of race as one of many factors in choosing students. The admissions policy gives special consideration to black, Latino, Native American and other groups that have been “historically discriminated against.” The appeals court found that the school did not make use of the quotas that were specifically barred in the Bakke decision.

The ruling by the Cincinnati-based court came in one of a pair of lawsuits brought on behalf of white applicants who had been rejected at the University of Michigan, at the law school and in undergraduate admissions. They argued that the university’s preferential policies discriminated against them and favored less-qualified minority students.

The court said it would rule later on the undergraduate case.

The law school case was brought on behalf of Barbara Grutter, a white mother of two, who charged that she was denied admission because minority students were given preferential treatment.

The five judges who affirmed the lower court decision were appointed by Democratic presidents. Three of the four dissenting judges were appointed by Republicans.

University of Michigan officials hailed the ruling as a victory for all American colleges, many of which have lined up to support Michigan in “friend of the court” briefs.

Former University of Michigan President Lee C. Bollinger, now the president-elect of Columbia University, called the court’s decision a sensational victory and one that could not have been predicted when the lawsuits were filed in 1997.

“Many people were saying then that the task of resisting what seemed like a tide [against affirmative action] was hopeless,” said Bollinger, an affirmative action proponent who is still listed as the lead defendant in the Michigan cases.

“Society has struggled with this issue and even agonized about it,” he said. “This is one of those times when the Supreme Court should speak to the issues that society is wrestling with.”

The Center for Individual Rights, a conservative Washington-based public-interest firm that launched the Michigan challenge and many others attacking affirmative action, said it is already at work on an appeal.

“We think it’s significant that Michigan only managed to eke out a 5-4 decision in this case, which confirms our view that the law is very murky on this issue,” said Terence Pell, the center’s chief executive officer.

“The court is very sharply divided about what the law is here, and we believe very strongly that it will go to the Supreme Court,” Pell said.

In 1996, the center succeeded in ending affirmative action at the law school of the University of Texas, setting a legal precedent that affects public colleges in several Southwestern states. The Supreme Court declined to hear that case.

Other appeals courts have upheld a race-conscious admissions policy at the University of Washington and rejected a similar policy at the University of Georgia.

University of Texas President Larry Faulkner applauded the Michigan ruling Tuesday and said he hoped it would land at the nation’s top court.

“We need a national resolution of the issues involved. It is patently not right for the law to be different in one part of the country from what it is in another, and that is very much the case now. This has to be resolved.”

But even if the Supreme Court were to uphold Tuesday’s ruling, California’s public universities would not be immediately affected.

Public schools in California have been barred from using affirmative action in admissions or hiring since voters banned such practices in 1996 by passing Proposition 209.

Several scholars cautioned that an affirmation by the Supreme Court in the Michigan law school case would mean it was constitutional for the university to adopt such an affirmative action plan, not that it was compelled to do so.

Last year, in contradictory decisions, one federal judge in Detroit upheld the use of race in Michigan’s undergraduate admissions while another struck it down in the law school case.

The university has argued that diversity enhances the education of all students and that it considers race as one factor among many in its selection of students, including a student’s economic status and academic record.

In a strongly worded dissent, one member of the court, Judge Danny L. Boggs, described the law school’s policy as a “straightforward instance of racial discrimination by a state institution.”

The law school’s policy “does not seek diversity for education’s sake,” 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.”

Circuit Judge Eric Clay, an African American appointed by former President Clinton, wrote in an opinion concurring with the court majority that the evidence supported the argument that diversity is a compelling government interest.

He cited a study by professor Patricia Gurin that found “students learn better in a diverse educational environment and they are better prepared to become active participants in our pluralistic, democratic society once they leave such a setting.”

Advocates of affirmative action said the case is about more than the broad concept of diversity. It is about race.

“In all candor, what we are really talking about is the need to have racial integration at the flagship state institution that will be creating leadership for the next generation,” Karlan said.

John C. Eastman, associate professor at Chapman University law school in Orange, vowed to file a “friend of the court” brief urging that the 6th Circuit decision be reversed.

“What we have now is a decision by the 6th Circuit that has taken a position contrary to several recent Supreme Court decisions,” Eastman said. “What the University of Michigan has done here is explicitly use race to give some people preferential consideration in a highly competitive admissions process.”

USC law professor Erwin Chemerinsky said Tuesday’s majority opinion followed the basic reasoning of the Bakke decision, and “Bakke is still the law until the Supreme Court overrules it.”

“Having been a law professor for 22 years, I believe diversity in the classroom is a compelling interest. Having taught constitutional law in classes that are all white and taught it with many minority students, I can tell you it is very different class, particularly when teaching about race and policing.”