The University Record, May 20, 2002

Q & A with Krislov and Alger

Krislov and Alger (Photo by Paul Jaronski, U-M Photo Services)
One day after the 6th Circuit Court admissions decision was announced, the Office of the General Counsel continued to buzz with the news. In fact, Vice President and General Counsel Marvin Krislov and Assistant General Counsel Jonathan Alger still were spending time digesting the 77-page decision. The day before had been a flurry of national and local media appearances from about 10 a.m. on, giving them only an hour to read and interpret the decision.

Record Executive Editor Laurel Thomas Gnagey had an opportunity to sit down and talk with Krislov and Alger. The following are excerpts from that interview:

Q: What does this decision mean for the Law School today?

Alger: The immediate impact, of course, is that the Law School can continue with its admissions policy, which is very important in terms of continuing to seek a diverse student body. It’s much less disruptive than the alternative would have been. So we’re very pleased that the Law School can continue to do what it’s doing.

Krislov: It also means, in terms of the legal landscape now, that we have two overall decisions in our favor. There’s the Supreme Court Bakke decision of 1978, and then there have been three circuit court decisions in the higher education realm that have discussed whether or not you can use race and ethnicity as a factor in trying to assemble a diverse student body. Two of the circuit opinions, the 9th Circuit on the West Coast and the 6th Circuit in our area—Kentucky, Ohio, Tennessee and Michigan—say “yes.” There’s only one decision, the Hopwood case in Texas, that says “no.” So in terms of the tea leaves, the trend seems to be in our direction. There’s a lot of speculation of what this may mean in terms of the law and whether the Supreme Court will take the case at some point.

Q: What does the ruling mean for other colleges and universities?

Alger: Our case is particularly important because of the educational record and the evidence that’s been developed. We were looked at from around the country as a significant case because of the fact that we developed evidence showing the educational benefits of diversity in a way that hasn’t been seen in any other case so far. I think schools around the country are looking to us for leadership as a matter of principle on this issue. It means a lot—not just to the University of Michigan but to schools across the country—because many of them have similar policies and they were looking at this as a very important test case to see if Bakke would indeed be followed—and it was.

Q: What are you saying when people ask you to speculate on the likelihood of the Supreme Court hearing the case?

Krislov: The other side is going to need to make a decision as to whether or not they want to appeal it, and then we will make some decisions about our next steps. But, as we mentioned, we think the trend is in our favor and we think the Bakke case is still good law. If the Supreme Court decides to take the case, we are confident that it will reaffirm Bakke and find that our policies are constitutional.

Alger: One of the things the 6th Circuit pointed out in this case is that colleges and universities have been relying on Bakke for 20 years, so we’re just following the Supreme Court precedent. In fact, our Law School admissions policy was based on Bakke—in particular, the Harvard model that was cited in Bakke. The 6th Circuit described it as being virtually indistinguishable from the University of Michigan Law School plan. So, we feel that if the Supreme Court is going to follow its own precedent, we’re in good shape here.

Q: Are you at all concerned about the closeness of the 5–4 vote?

Alger: It’s not at all uncommon for courts—especially when we’re talking about nine judges—to have different views in a case, but the important thing is the majority of the court upheld the University’s policy and said it was constitutional. That’s the focus. It was definitely the majority of the court and there’s a clear victory for the University in that sense.

Krislov: The majority rules.

Alger: That’s the bottom line with court cases. There’s no partial credit.

Q: What’s next? How are you strategizing for what’s ahead?

Alger: Of course the most immediate next thing to happen is the undergraduate admission decision, which should be coming down any day now. We don’t know exactly when that will be, but it will be soon. At that point we will have a much clearer picture of the landscape moving forward. As Marvin said, it’s up to the other side to decide whether they’re going to appeal this decision. Once we see the undergraduate case, we’ll know whether there are any steps the University needs to take.

Q: How likely is it that the other case will go in a different direction, and what if it does?

Alger: If you look at what the majority of the court said in this case about the diversity rationale, it followed the Bakke precedent. So we would certainly hope that the 6th Circuit would do the same thing in the undergraduate case, at least in saying that diversity is a compelling interest in undergraduate admissions just as it is in Law School admissions. I think it’s fair to say we are cautiously optimistic, but you never know until you get the decision.

Krislov: And of course we did win the undergraduate case at the district court level, which often is considered an important factor when a case goes up to the appellate court.

Q: Are we confident that our undergraduate admissions practices are just as sound as those in the Law School?

Krislov: We think that they both comply with the Bakke decision and we are hopeful that the court will agree with us.

Alger: We try to be very clear that we look at many, many factors in the admissions process. Everybody is treated as an individual and that’s something the 6th Circuit pointed out in its decision. Part of what this means is that if students come from underprivileged backgrounds, or overcome barriers in their educational careers, that will be considered in both the Law School and undergraduate admissions processes. It’s not just test scores and grade point averages, but some indication that a student has been striving and has overcome barriers and obstacles in his or her life. We think this is an important indicator of success and we are confident the court agrees.