The University Record, December 17, 2001

Appeals Court Weighs U-M Affirmative Action

By Anthony Collings
Office of the Vice President for Communications

Nine judges of a Federal appeals court are considering the future of affirmative action at the University of Michigan, in a case that legal analysts say could go all the way to the Supreme Court. The judges of the Sixth Circuit Court of Appeals (which encompasses Kentucky, Michigan, Ohio and Tennessee) heard wide-ranging arguments Dec. 6 in a packed courtroom in Cincinnati. The hearing was preceded by a rally and march in the rain by hundreds of students supporting affirmative action. After the two-hour court hearing, Associate Vice President and Deputy General Counsel Liz Barry said, “I think it went very well for the University—it is up to the court now.”

At issue is the constitutionality of U-M policy, which takes race into consideration as one of many factors in choosing among qualified applicants, in order to produce the type of diverse student body that gives all students a better education. Three unsuccessful applicants – two for the undergraduate college and one for the law school – have sued the university, claiming the policy illegally discriminates against whites.

Lower courts have split on the issue. A judge in one district court upheld U-M’s undergraduate policy as constitutional and said he saw “solid evidence” of the educational benefits of diversity. Another judge in the same district court said the law school admissions policy was unconstitutional. Both lower court rulings are now on appeal. Pending the outcome, U-M continues to apply affirmative action in admissions.

Arguing the University’s case, attorney John Payton said, “A broadly diverse student body is essential to the education we provide all of our students.” Kirk Kolbo, an attorney for the plaintiffs opposing the policy, argued, “We’re not here to challenge whether or not diversity is good. We are here to talk about constitutional principles.”

The appeals court judges questioned lawyers for all sides about the extent to which U-M takes race into consideration, and about how to interpret the 1978 Supreme CourtBakke decision on university admissions. In Bakke, the Supreme Court rejected quotas but permitted universities to take race into consideration in admissions. U-M says

Bakke makes clear that diversity is the type of compelling government interest that justifies the use of affirmative action, while the plaintiffs reject that argument.

In addition to U-M and the plaintiffs, a third group, known as the intervenors, also argued before the court. This group consists of students and citizens who defend the university’s policy as a remedy for alleged past and current discrimination by U-M against minorities.

The arguments were covered by national, regional and local news media, including the New York Times, Chicago Tribune, Chronicle of Higher Education, CBS, Legal Times, Detroit Free Press, Detroit News, Ann Arbor News and Michigan Daily.

A decision by the appeals court is expected sometime in 2002. The U-M cases might then go on to the Supreme Court for a ruling that would affect public universities nationwide, if one side or the other appeals and if the High Court agrees to take the case.

The U-M cases are the only affirmative action admissions cases still in the legal pipeline. The University of Georgia decided not to ask the Supreme Court to review a ruling against its use of affirmative action. The Supreme Court refused to hear appeals in two other cases involving a split in lower court rulings: one in favor of affirmative action at the University of Washington and another against it at the University of Texas.

Whatever happens, U-M intends to keep fighting for its policy. Said Barry, “We feel confident that we will prevail and are fully committed to defending our policy even if it means going to the Supreme Court.”