University fights decision against race-conscious admission policy

Tribune Media Services

DETROIT — Lawyers for the University of Michigan and a group of minority students said this week they will immediately appeal a decision by U.S. District Court Judge Bernard Friedman that the university’s race-conscious law school admissions policy is unconstitutional.

In a stinging 90-page decision released this week, Friedman rejected the university’s arguments that race was one of many factors used in admissions and said the law school’s admissions policy overemphasizes race to attain the functional equivalent of quotas of minority students.

“The evidence shows that race is not, as defendants have argued, merely one factor which is considered among many others in the admissions process,” Friedman wrote. “The evidence indisputably demonstrates that the law school places a very heavy emphasis on an applicant’s race in deciding whether to accept or reject.”

Barbara Grutter, who sued UM in 1997 claiming she was denied admission in favor of less-qualified minorities, said she was gratified by Friedman’s ruling.

“I am emotionally overwhelmed,” said Grutter, 47 of Plymouth Township, Mich. “It’s been so long and finally there is a ruling. Clearly the judge heard me.”

But UM officials criticized Friedman’s ruling and said they will file an appeal immediately with the U.S. 6th Circuit Court of Appeals in Cincinnati. An appeal in the undergraduate case has already been filed.

Liz Barry, UM’s deputy counsel said university lawyers would also ask Friedman to stay his order that forbids UM from using race in law school admissions.

“We believe Judge Friedman’s decision is wrong and flies in the face of over 20 years of U.S. Supreme Court law,” Barry said. “The ruling is contrary to every selective university in the country.”

The university had argued that it was trying to build a critical mass of minority students so incoming minorities would feel at home on campus.

But Friedman rejected UM’s definition of critical mass of minority students as an “amorphous concept” that cannot be quantified. He wrote that the school’s unwritten policy of enrolling a minimum of 10 percent to 12 percent minority students “is practically indistinguishable from a quota system.

“While the law school has not set aside a fixed number of seats, there is no principled difference between a fixed number of seats and an essentially fixed minimum percentage figure,” Friedman wrote. “Under either system, students of all races are not competing against each other for each seat, with race being simply one factor among many which may tip the balance.”

Friedman also rejected a landmark 1978 Supreme Court ruling in the Bakke case that said diversity in education is a compelling state interest. The diversity rationale has been used for more than two decades by select universities and colleges to justify the use of race in admissions.

In a similar case concerning UM’s undergraduate admissions policies, the U.S. District Judge Patrick Duggan agreed with the Bakke decision and said the undergraduate admissions policy is legal.

The two cases are widely believed to be headed for the U.S. Supreme Court. Friedman’s rejection of the diversity argument increases those odds, according to legal scholars.

“The decision is exceedingly strong,” said William Van Alstyne, a professor of law at Duke University. “I think this is a judge who knew all the plausible arguments, heard them respectfully, but found them wanting.

“The university fought this with staggering resources, and nearly the entire higher education establishment had lined up to defend the Michigan plan,” he said.

Friedman also criticized UM for failing to explain why it gave special considerations to certain racial groups, such as African Americans, and not to Arabs or those of Eastern European descent, and for failing to set time limits on the use of race as a factor in admissions.

UM also did not provide sufficient testimony about whether it had attempted to use race-neutral alternatives such as increased recruiting, decreased emphasis on grades and test scores or a lottery system to achieve diversity, Friedman said.

During oral arguments in December and throughout the 15-day trial in January and February, Friedman repeatedly asked witnesses for the university whether there were other means of achieving diversity, questions that perhaps foreshadowed Tuesday’s ruling.

Friedman ordered UM to stop using race as a factor in admissions and ordered a hearing to consider damages in the class action suit, which could potentially include thousands of rejected applicants to the law school.

Robert Sedler, a Wayne State University law professor and constitutional expert, said Friedman’s ruling applies only to the law school case. The appeals court will have to resolve the differing opinions between Duggan and Friedman’s ruling, he said.

UM President Lee Bollinger, who was dean of the law school when the admissions policy was drafted, said he is confident that the appeals court will overturn Friedman’s ruling.

“It’s up to the Supreme Court to decide if we stay with Bakke or chart a different course,” Bollinger said. “To change the course of constitutional law would be an American tragedy.”

He said the country was still on the course charted by the 1954 Brown v. Board of Education U.S. Supreme Court decision that integrated public schools. “Higher education has done its part. It’s too soon to give up.”

Kirk Kolbo, an attorney for Grutter, said Friedman’s ruling was a repudiation of UM’s admissions policy.

“This decision is a powerful statement that people should be treated as individuals not just members of racial groups,” Kolbo said. “It’s a clear repudiation of the university’s argument that diversity can ever be used to engage in race discrimination. It’s also important that race-based double standards have been found wrong and illegal.”

Kolbo said thousands of non-minority students, who applied to UM law school and were rejected beginning in 1995, could be owed millions of dollars in damages if the ruling is upheld.

Miranda Massie, an attorney for minority students who intervened in the case, said Friedman’s ruling distorted the evidence presented at trial about segregation and discrimination in education.

“It’s an opinion for resegregation that will intensify existing unfairness and inequality for black people and other minorities seeking access to higher education,” Massie said. “He engaged the evidence only enough to distort it so that it could be used to support his pre-existing views.”

In rejecting the intervenors’ arguments that race was necessary to compensate for past discrimination, Friedman wrote such a rationale ignored a person’s individual history. Friedman did acknowledge “the long and tragic history of race discrimination in this country,” but said it did not justify the use of race in the university’s admissions.

Minority students held a press conference on the steps of the Michigan Union at UM to protest Friedman’s decision.

“To take away affirmative action will mean a return to separate but unequal,” said Erika Dowdell, a third-year student at UM and an intervenor in the case. Dowdell was the lead witness for the intervenors and testified about her struggle as a minority student at Cass Tech in Detroit and on UM’s campus.

“There is no excuse for ignoring racism and segregation.”