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U-M attorneys say 6th Circuit Court of Appeals got it right

The University will ask the Supreme Court not to hear the Law School affirmative action case when the U-M legal team files a brief next month, attorney Maureen Mahoney said during a forum to update the campus on two admissions lawsuits.


lawsuit panel image
U-M Attorneys Maureen Mahoney and John Payton participate in the Sept. 19 forum to update the campus community on admissions lawsuits. (Photo by Marcia Ledford, U-M Photo Services)

Mahoney, a partner with Latham & Watkins, Washington D.C., and the newest member of the University’s legal team, was one of nine panelists speaking before an audience of approximately 300 people in the Mendelssohn Theatre Sept. 18.
“The Law School has won the case, and it’s just not going to get any better than that,” Mahoney said.

The 6th Circuit Court of Appeals in May ruled in favor of U-M’s affirmative action policy in admissions to the Law School (Grutter v. Bollinger, et. al), reversing a lower court ruling and upholding the University’s position that it has a compelling interest in achieving a diverse student body. The court acknowledged the educational value of diversity.

The 6th Circuit opinion said the admissions policy at the Law School complies with the U.S. Supreme Court’s 1978 Bakke decision, which permits race to be taken into consideration in admissions as long as quotas are not used.

A 6th Circuit Court ruling is yet to be issued on a second case involving undergraduate admissions process in LS&A (Gratz v. Bollinger et. al), but the University won that case in the lower court, which Mahoney said is another reason not to seek a Supreme Court ruling.

“From our perspective, the Supreme Court already decided it 24 years ago in Bakke, and it doesn’t need to weigh in again at this point,” Mahoney said. The U-M legal team argues that the Supreme Court need not hear a case that has been settled at the circuit court level. Out of 13 circuit courts, three have heard similar cases and only one, in Texas, struck down a university’s affirmative action policies.

The University’s decision to oppose certiorari, or the hearing of the case by the Supreme Court as petitioned by the plaintiffs, is contrary to the desires of the Student Intervenors, a group that joined the University’s lawsuits as representatives of the student body.

“This is an issue … of great national importance,” said Miranda Massie, an attorney representing students in the Law School case. “ We think that even though there was a victory at the 6th Circuit, we cannot come out against the Supreme Court hearing this appeal,” she said.

In addition to Mahoney and Massie, the forum to update the campus community on the lawsuits included panelists: Paul N. Courant, interim provost and executive vice president for academic affairs; Jeffrey S. Lehman, Law School dean; Monique Luse, president of the student government in LS&A; Geraldine Bledsoe Ford, past president of the U-M Alumni Association and retired justice of the Wayne County Circuit Court; John Payton, attorney with Wilmer, Cutler & Pickering and a member of the U-M legal team; and Ted Shaw, associate director and counsel for the NAACP Legal Defense Fund and attorney for the intervenors in Gratz v. Bollinger. U-M Vice President and General Counsel Marvin Krislov was the moderator for the panel.

President Mary Sue Coleman gave opening remarks. She told the audience, “One advantage to being a newcomer is I can tell you firsthand that the whole nation is at stake.” The text of her remarks can be found on the University’s admissions lawsuit Web site:

Panelists addressed the educational value of diversity and updated participants on developments that occurred over the summer break. Interim Provost Paul Courant cited some of the University’s research that proved diversity is good for education.

“The variety of points of view, academic and life experiences that diverse populations afford, allow all of us to see problems from different angles, which is crucial to the educational process,” Courant said.
Monique Luse, president of the LS&A student government, political action chair of the Black Student Union and co-founder of Students Supporting Affirmative Action, speculated on what would happen if affirmative action were declared unconstitutional.

“The decision would mean that the welcome mat at the door of higher education—not only at the University of Michigan but in the nation—would be pulled out from under us,” she said. “The loss would not just be in numbers [of minority students] but in idealism.”
A brief question and answer session followed the more formal presentation.

More breaking news:
U-M names director and charter faculty of Life Sciences Institute
Meet the Life Sciences Institute charter faculty
Courant appointed provost and EVP for Academic Affairs
Affirmative Action: U-M attorneys say 6th Circuit Court of Appeals got it right

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