University of Michigan’s Admissions Policy Rejected Judge rules diversity is not a compelling state interestBy Erik Lords
DETROITMany national leaders expressed shock and disappointment late last month after a U.S. District Judge in Detroit ruled that the University of Michigan’s race-conscious law school admissions policy is unconstitutional. Lawyers for the University of Michigan and a group of minority students who were allowed to intervene as parties in the case are appealing the decision. Judge Bernard Friedman’s 90-page opinion surprised many leaders and legal experts because it contradicted another district judge, who in the same federal building just three months earlier had ruled that the University of Michigan’s undergraduate school could continue using race as a factor in admissions and that the policy was lawful. Both cases will likely end up before the U.S. Supreme Court, legal experts say.Friedman, who was appointed to the federal bench in 1988 by former President Ronald Reagan, ruled that diversity is not a compelling state interest and that if it was a state interest, Michigan’s admissions system was not narrowly tailored. Also, in the 90-page opinion, he ruled that there was no evidence of past or present discrimination by the law school to justify the use of race as a factor in admissions. He rejected the university’s argument that race was simply one of many factors used in admissions and said the law school admissions policy places too much emphasis on race. Doing so creates the functional equivalent of a quota system, Friedman said.“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,” Friedman wrote. “The evidence shows that race is not, as defendants have argued, merely one factor which is considered among many others in the admissions process.”Miranda Massie, an attorney for the intervening students, called Friedman’s ruling “intellectually dishonest and wildly ideological,” saying that he distorted the evidence presented at the 15-day 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 told the Detroit Free Press. “He engaged the evidence only enough to distort it so that it could be used to support his pre-existing views.” Friedman rejected the intervenors’ arguments that race is necessary to compensate for past discrimination and wrote that such a rationale ignores a person’s individual history. There has been a “long and tragic history of race discrimination in this country,” Friedman wrote, but that does not justify using race in the law school’s admissions. He also disagreed with the way most of the nation’s selective colleges have interpreted the landmark 1978 U.S. Supreme Court decision, University of California Regents v. Bakke. That case ruled that racial quotas were unlawful, but Justice Lewis Powell, writing only for himself, stated that the use of race was a “plus factor” to achieve racial diversity. Robert Sedler, an expert on constitutional law and a professor of law at Wayne State University, says Friedman reasoned that since no other justices joined Powell on this particular point, that Powell’s opinion cannot be interpreted as the controlling opinion in the case. “I strongly disagree with the judge on that point,” Sedler says. “You did have other justices who were for using race as a factor.” Michigan has spent more than $4 million defending itself in both the law school and undergraduate cases. It has the support of dozens of prominent higher education organizations, corporate giant General Motors and former U.S. President and Michigan alumnus Gerald Ford. Witnesses for the intervenors included Duke University’s John Hope Franklin, Harvard University’s Gary Orfield, and UC Berkeley’s Eugene Garcia (see Black Issues, Jan. 18).“We are extremely disappointed with the judge’s decision,” says Ann Springer, associate counsel for the American Association of University Professors. “Michigan has been commendable in its dedication in establishing the true need for diversity in higher education. But this decision goes against Bakke. This decision is very troubling.”Kirk Kolbo, an attorney for the plaintiff said: “This decision is a powerful statement that people should be treated as individuals, not just members of racial groups.”Kary Moss, executive director of the American Civil Liberties Union of Michigan says, “We are devastated by this decision, and we fear that the judge is trying to roll back the clock.”The lawsuit was brought in 1997 by a White plaintiff, Barbara Grutter, who sued the university, claiming she was denied admission in favor of less-qualified minorities. While the ruling became one of the hottest conversations in higher education circles nationwide, Sedler says that Friedman’s ruling only applies to the Michigan law school, not to other public universities in the state or elsewhere in the nation.Michigan had argued that building a critical mass of minority students benefited students of all races and prevented minorities from feeling isolated on campus.But Friedman attacked that argument, calling it an “amorphous concept” that cannot be measured. He wrote that Michigan’s practice of regularly enrolling a minimum of anywhere from 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. Michigan’s appeal will be heard by the 6th U.S. Circuit Court in Cincinnati, which has many supporters of affirmative action worried. “The 6th Circuit is very conservative, and the Supreme Court is a very different court than when Bakke was decided,” Springer, of the AAUP says. “There is definitely concern about what the Supreme Court will do.”
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