University of Michigan law school wins case

DETROIT -- With a narrow appeals court victory Tuesday, the University of Michigan law school won the right to continue considering race in its admissions policies as the school braces for a likely historic appeal to the U.S. Supreme Court.\nIf the high court agrees to hear the case, the outcome could affect college admissions policies across the country.\nOn Tuesday, the U.S. 6th Circuit Court of Appeals in Cincinnati ruled 5-4 that the race-conscious admissions policy at UM's law school is legal. The decision reversed a March 2001 ruling by a federal district judge in Detroit.\n"We find that the law school has a compelling state interest in achieving a diverse student body," the appeals court wrote in its opinion. The court cited testimony from school officials, saying the testimony assured them that, "In considering race and ethnicity, the law school does not set aside or reserve seats for underrepresented minority students."\nA decision on UM's admissions policy for undergraduate students is pending in the same court and a \ndecision is expected soon.\nUM had argued that race is one of many factors in its admissions process and that diversity improves the education of all students. The university had spent millions of dollars defending that argument since the case was filed in 1997.\n"This is a great day for the University of Michigan and all of higher education," said Marvin Krislov, UM general counsel. "The court recognizes that diversity brings benefits for majority and minority students. The court recognizes that diversity is a compelling state interest and that our policy is narrowly tailored to achieve that interest."\nBut the university's victory could be short lived.\nKirk Kolbo, an attorney representing Barbara Grutter, who sued the UM law school in 1997, said they will appeal the decision to the U.S. Supreme Court.\n"I've anticipated from the beginning that this would have to go to the Supreme Court and today's decision just takes us one step closer," Grutter said.\nKolbo said he was optimistic that the high court would take on the issue. \n"Today's 5-4 decision shows how closely divided the court is on this issue. The only place that this issue can be decided is the Supreme Court."\nAs in Michigan, similar cases in other states have resulted in rulings by lower courts that conflict with each other. Because appeals of differing decisions in cases in Georgia, Texas and Washington have either been refused by the Supreme Court or abandoned by the universities, the UM law school case stands a better chance of being heard by the U.S. Supreme Court, legal scholars say.\n Judge Danny Boggs, who wrote the dissenting opinion, blasted the law school admissions policy as "a straightforward instance of racial discrimination...Even a cursory glance at the law school's admissions data reveals the staggering magnitude of the law school's racial preference.\n"Its admissions officers have swapped tailor's shears for a chainsaw…Michigan's plan does not seek diversity for education's sake. It seeks racial numbers for the sake of the comfort that those abstract numbers may bring."\nSome UM students applauded the appeals court decision.\n"I thought it was fair and that the lawsuit was ridiculous to begin with," said Bisera Vlahovljak, a senior psychology major from Detroit. "I believe in the positive benefits of diversity, and how it can enhance our education. It's essential."\nBut James Justin Wilson, editor of the Michigan Review, a conservative student publication, criticized the court's ruling Tuesday.\n"I think it's an injustice," Wilson said. "Affirmative action is racism in action."\nThe lawsuit against the law school was filed Dec. 3, 1997, by Grutter, 48, of Plymouth Township, Mich., who claimed she was denied admission in favor of less-qualified minorities.\nA similar lawsuit against UM's undergraduate admissions policies was filed on Oct. 14, 1997, by Jennifer Gratz and Patrick Hamacher. The court is considering that case but did not release a decision on it Tuesday. A ruling is expected soon.\nIn both cases, the plaintiffs are represented by the Center for Individual Rights, a public interest law firm in Washington, D.C. The two cases were consolidated by the appeals court and oral arguments were heard Dec. 6 by the court's entire nine-judge panel. It was the first university admissions case to be heard by a full panel. Similar cases in Texas, Washington and Georgia were heard by three-judge panels.\nSix of the judges hearing the UM cases were appointed by Democratic presidents, three by Republicans. In Tuesday's decision, Judge Ronald Gilman, who was appointed by former President Bill Clinton, joined in the dissent with judges Eugene Siler and Alice Batchelder, who were appointed by former President George Bush. Boggs was appointed by former President Ronald Reagan.\nIn the majority were Chief Judge Boyce Martin Jr., Martha Craig Daughtrey, Karen Nelson Moore, R. Guy Cole Jr. and Eric Clay.\nAt the district court level in Detroit, two judges reached opposite conclusions on two UM cases. UM essentially won in the undergraduate case, while the plaintiffs succeeded in the law school case.\nLast year, the high court refused to hear an appeal of a U.S. 5th Circuit Court of Appeals in New Orleans ruling that disallowed the use of race as an admissions factor at the University of Texas law school. In 1996, the court also refused to hear the same case, known as the Hopwood case.\nThe high court also refused last year to review a decision by the U.S. 9th Circuit Court of Appeals in San Francisco that upheld the use of race in admissions and affirmed diversity as a compelling state interest at the University of Washington law school.\nThe 11th U.S. Circuit Court of Appeals in Atlanta last August struck down the use of race in admissions in a University of Georgia case. However, university officials decided to change the admissions policies rather than appeal the case to the high court.\nResolving conflicting rulings by appeals courts is one reason the high court may decide to hear a case. Even so, the court agrees to hear only about 2 percent, or 140, of the approximately 7,000 cases submitted to it each year.\nLegal scholars say they hope the high court will review the UM cases to clarify its 1978 Bakke case ruling that said race could be used as one of many factors in admissions.\nUM uses race as a factor in deciding whom to admit, with the goal of diversifying its student body, which it says benefits all students. This year, UM received 24,511 applications for about 5,300 seats in its fall freshman class, according to UM data.\nAt the law school, there were 5,260 applications this year for about 361 seats, according to law school data. Minority students represent about 23 percent of the total enrollment of 1,098 students.\nBut lawyers representing the three white students who sued UM say race is used as a determining factor and white students are denied admissions in favor of less-qualified minorities.\nJohn Payton, lead counsel for UM in both cases, lauded Tuesday's decision.\n"It clearly vindicates what we've been saying about the educational mission of the law school," he said. \nA key factor in UM's victory was that the court found the law school admissions policy agrees with the Bakke decision and is precisely tailored to meet that criteria - using race as only one factor to meet the goal of diversity, said Robert Sedler, Wayne State University lawprofessor.\n"The majority in the appeals court said that the binding holding in Bakke is that diversity is a compelling law school interest," Sedler said.\nTed Shaw, associate director of the NAACP Legal Defense and Educational Fund, who represents student intervenors in the undergraduate case, said the appeals court ruling that Bakke is binding and diversity is a compelling state interest could mean the judges will reach the same conclusion in the undergraduate case. A decision on that case is expected soon.\nShaw said Tuesday's ruling also sets up clear appeals issues for the Supreme Court.\n"What's at stake here is the extent to which African-American, Latino and other minority students have access to highly selective universities, graduate and professional schools," Shaw said.