The University Record, May 10 , 1999

U asks judges to forgo trials in admissions lawsuits

Editor’s Note: Two lawsuits have been filed against the University, one challenging undergraduate admissions policies for students applying to LS&A, the other challenging the Law School’s admissions policies. Both are pending in the Federal District Court for the Eastern District of Michigan in Detroit. Judge Patrick Duggan is hearing the LS&A case, which is scheduled for trial in September or October. Judge Bernard Friedman is hearing the Law School case, which is scheduled for trial Aug. 30. University attorneys expect oral arguments on the May 3 motions (described below) to be heard in mid to late July.

By Jane R. Elgass

The University has asked federal court judges to forgo the trials in the two cases challenging its admission policies and rule that those policies are legal based on previous decisions of the U.S. Supreme Court.

In motions for summary judgment filed May 3, the University’s lawyers say the undisputed facts in the cases demonstrate that the use of race in its undergraduate and Law School admission processes meets the constitutional requirements set forth in Regents of University of California v. Bakke.

The Supreme Court in its 1978 Bakke ruling said that attaining the educational benefit of diversity is a compelling government interest justifying the use of race as a factor in admissions, as long as all students admitted are fully qualified and their admissions are not based on quotas.

Elizabeth Barry, associate vice president and deputy general counsel, says “Our motions ask that the judges rule in our favor because Bakke is good law and our programs comply with Bakke.”

Several national organizations and other educational institutions indicated support of the University’s position in the cases last week by filing Amici Curiae (“Friend of the Court”) briefs. They include:

  • The U.S. Department of Justice on behalf of the United States.

  • A group consisting of the Association of American Law Schools, National Association of State Universities and Land Grant Colleges, Committee on Institutional Cooperation (composed of the Big Ten schools plus the University of Chicago), and Wayne State University.

  • The American Council on Education on its own behalf and on behalf of a number of organizations.

  • The state of Ohio.

    Barry says that support for the University’s stand from organizations that are not directly involved in the lawsuits is unusual this early in the proceedings.

    “That so many respected institutions, including the Department of Justice, are weighing in at this early stage in the case confirms how much is at stake in this litigation,” Barry notes.

    In two comprehensive documents that were part of the motions for summary judgment, the University details the way it selects LS&A and Law School students, and shows how those admission procedures meet the requirements of the law.

    “The record demonstrates that the University steadfastly applies what Bakke explicitly permits–the competitive consideration of race as one of many factors in deciding who should be admitted,” the University lawyers wrote. “(The) dispute, it will become clear, is with Bakke.”

    While the methods that the Law School and LS&A use to admit students are quite different, they share important characteristics that make them legal.

    In both, race is used as one of many factors that admissions counselors use in selecting students. An applicant’s grades and test scores weigh heavily in an admissions decision and, in addition to race, a student’s geographic location, the quality of the student’s previous school, and the alumni status of parents and grandparents also are taken into account, for example. Neither program uses quotas, targets or other numeric goals, and only qualified students with a high probability of succeeding at Michigan are offered admission.

    The admission policies result in a diverse student community, which officials say is essential to the University’s mission of providing all students with the best education possible. According to the court filings, expert witness testimony proves that diversity benefits all students, regardless of race or ethnic background, because it makes them better learners while they are in school and better citizens once they graduate.

    The University’s legal filings also say that the students who filed the LS&A lawsuit either passed up opportunities to enter the U-M as part of a group admitted from waiting lists or since have declined to transfer to the University.

    After initially not being offered a place at the University, Jennifer Gratz in 1995 did not return a form to the University that would have placed her on a waiting list for admission. Had she completed and mailed that form, she would have been admitted, because the University decided to admit every Michigan resident on the waiting list that year.

    Patrick Hamacher, the other student suing LS&A, also did not add his name to the admission waiting list in 1997 after he received a letter denying him admission. He has since said in a deposition that he has no intention of transferring to Michigan, in part because his academic grade point average at Michigan State University is below the 3.0 level required of transfer students.

    Copies of the motions are on the Web at http://www. for the LS&A case, and for the Law School case.

    Amici Curiae (Friend of the Court) Filings

    The following organizations have filed Amici Curiae briefs:

  • U.S. Department of Justice on behalf of the United States. Justice Department lawyers argue that the educational benefits that flow from a diverse student body constitute a compelling state interest. This is a key test in the Supreme Court’s Bakke rules guiding how a university can use race as a factor in its admission policies.

    In legal papers signed by Bill Lann Lee, acting assistant attorney general for the Justice Department’s Civil Rights Division in Washington, D.C., and Saul A. Green, the U.S. attorney in Detroit, the Justice Department also says that social science research confirms the educational benefits of a diverse student body.

  • A group of organizations that includes the Association of American Law Schools, National Association of State Universities and Land Grant Colleges, Committee on Institutional Cooperation and Wayne State University. This coalition of organizations argues that experience and evidence demonstrate that the quality of education for all students is greatly enhanced when student bodies include people of diverse backgrounds.

    The group says that a court decision to prohibit the use of race in admission decisions of public universities or private universities that receive federal funds will “significantly undermine the ability of educational institutions to provide students with the highest quality academic experience and prepare them to contribute effectively to society after graduation.” The brief was authored by former Solicitor General Walter Dellinger.

  • The American Council on Education (ACE). The Council, acting on its own behalf and that of several other organizations of educators and administrators involved in higher education, argues in its brief that this case is of critical importance to every university in the nation.

    The education groups, which represent thousands of members, argue that attaining a diverse student body is necessary to the missions of colleges and universities and the central purposes of higher education. Further, the principle of academic freedom gives schools some latitude based on their judgment and experiences in determining how to assemble a diverse student body.

    Organizations that are part of the ACE brief include the American Association of Colleges for Teacher Education, American Association of Colleges of Nursing, American Association of Collegiate Registrars and Admissions Officers, American Association of Community Colleges, American Association of Dental Schools, American Association of State Colleges and Universities, American Association of University Professors, American College Personnel Association, ACT Inc., Association of Academic Health Centers, Association of American Colleges and Universities, Association of American Medical Colleges, Association of American Universities, Association of Catholic Colleges and Universities, Association of Community College Trustees, Association of Governing Boards of Universities and Colleges, Association of Jesuit Colleges and Universities, College and University Personnel Association, Council for Advancement and Support of Education, Council of Independent Colleges, Educational Testing Service, National Association of Independent Colleges and Universities, National Association of Student Financial Aid Administrators, National Association of Student Personnel Administrators, NAWE: Advancing Women in Higher Education, National Council of University Research Administrators and United Negro College Fund.

  • The State of Ohio. The state of Ohio argues that states, in order to achieve diversity in their public universities, have a constitutional authority to adopt admission policies that consider an applicant’s race as one of many different academic and socio-economic factors.