By Kenneth R. Weiss
Los Angeles Times, March 28, 2001
A federal judge on Tuesday ordered the University of Michigan’s law school to quit using race as a factor in admissions, ruling that its affirmative action policies violate the U.S. Constitution and are not in the state’s interest.
U.S. District Judge Bernard Friedman dismissed the school’s arguments that affirmative action is needed to “level the playing field” so minorities can compete in a society filled with either past or present discrimination.
“An admissions policy that treats any applicants different from others on account of their race is unfair and unconstitutional,” Friedman wrote. He instructed the law school to rework its admissions criteria so they are “race neutral.”
The ruling, which could end up before the U.S. Supreme Court, was immediately criticized by University of Michigan President Lee C. Bollinger as conflicting with the high court’s 1978 decision in University of California vs. Bakke. That decision allowed schools to use race as one factor among many in selecting students.
“We will appeal this decision, and we are confidant we will prevail,” he said.
Friedman’s ruling hands another key victory to the Center for Individual Rights, a conservative Washington D.C.-based firm that has launched or joined lawsuits attacking affirmative action around the country.
The center has been on a multiyear campaig to find the right test case that will overturn the Bakke decision and abolish all race-based admission practices nationwide.
In 1996, it succeeded in ending affirmative action at the University of Texas Law School, setting a legal precedent that affects public colleges in several Southwestern states. The Supreme Court refused to hear that case.
More recently, the rights center lost a similar challenge to race preferences before the U.S. 9th Circuit Court of Appeals involving three white students who were denied admission to the University of Washington’s law school. The center last month asked the Supreme Court to review that ruling.
Complicating matters, another judge in Friedman’s district recently ruled that the University of Michigan’s use of race in its undergraduate admissions is legal. So for now, the university can consider race in picking undergraduates but not law students.
These kinds of split decisions often attract the attention of U.S. Supreme Court justices. Legal scholars have been betting that one of these cases, either in Washington, Michigan or possibly another in Georgia, will lead to a reconsideration of affirmative action in admissions.
None of this would have any effect on California’s public universities, which have been forbidden to use affirmative action since voters banned such practices in 1996 by passing Proposition 209.
But a Supreme Court ruling overturning Bakke could change the admission practices of private universities, if it were to reach the same conclusion as Friedman. He ruled on Tuesday that the Michigan law school’s consideration of race violated not only the Constitution but also Title VI of the 1964 Civil Rights Act.
Title VI covers all those entities that receive federal money, which includes virtually every private university in the country.
Curt Levey, legal director of the rights center, said Friedman’s ruling went even further than he had hoped. “He used stronger language that we used in our brief.”