Federal appeals court hears key affirmative action challenge
U. of Michigan discrimination against white and asian applicants at issue
Washington, D.C. – The nation’s most closely watched legal challenge to affirmative action in admissions comes before a federal appeals court today in Cincinnati. Plaintiffs in two key lawsuits against the University of Michigan will ask the U.S. Court of Appeals for the Sixth Circuit to strike down the College and Law School’s race-based admissions systems as unconstitutional. Under both systems, all preferred-race applicants – blacks, Hispanics, and Native Americans – are evaluated under lower admissions standards, regardless of whether they suffer from any demonstrable disadvantage. The University defends the resulting discrimination against white and Asian applicants as necessary to attain a diverse student body. The Sixth Circuit will hear the two cases en banc – that is, before the entire 9-judge court, instead of the usual 3-judge panel. The Center for Individual Rights (CIR), which represents the plaintiffs, requested the en banc hearing, arguing that the extraordinary importance of the cases warranted an extraordinary procedure.
In Grutter v. Bollinger, both the University of Michigan and a group of student intervenors are appealing U.S. District Court Judge Bernard Friedman’s ruling that the Law School’s race-based admissions system is “practically indistinguishable from a quota system” and is both “unconstitutional and a violation of Title VI of the 1964 Civil Rights Act.” In Gratz v. Bollinger, both the University and the plaintiffs – Jennifer Gratz and Patrick Hamacher – are appealing a decision by U.S. District Court Judge Patrick Duggan. His decision upheld the existing admissions system at the University’s College of Literature, Science, and the Arts, but struck down the predecessor admissions system under which the plaintiffs were rejected. Duggan concluded that the previous system “systematically exclude[d] a certain group of non-minority applicants from participating in the admissions process based solely on account of their race.” In addition, a different group of student intervenors is appealing Duggan’s rejection of their claim that Michigan’s preferences are justified as a remedy for past discrimination.
Both cases will be argued today by CIR’s co-counsel at Minneapolis-based Maslon, Edelman, Borman & Brand. Maslon’s David Herr will argue that Judge Duggan erred in upholding the College’s current admissions systems, which awards a 20-point bonus to preferred-race applicants. As a result, a minority applicant with a B averages is treated as equivalent to a white or Asian applicant with an A average. The university admits that this system differs only cosmetically from the previous system, which Duggan found to be unconstitutional.
Herr will also ask the Sixth Circuit to reverse Judge Duggan’s holding that attaining a diverse student body can be a constitutional justification for racial preferences. Herr will point out that a majority of the Supreme Court has never endorsed this diversity rationale. Moreover, he will explain, both the current and former admissions systems employed by the College fail to meet the standard for limited use of preferences propounded by Justice Lewis Powell, the lone Supreme Court Justice to endorse the diversity rationale. For example, the College’s 20-point bonus is far more than the small racial “plus” factor endorsed by Powell.
Maslon’s Kirk Kolbo will explain that the Law School also uses race as far more than a small plus factor. For example, among applicants with grades and LSAT scores similar to plaintiff Barbara Grutter’s, 80% of the minorities were accepted for admission, while only 8% of whites and Asians were admitted. The result is the very type of admissions system which Justice Powell said could not be constitutional, namely a two?track system in which vastly different standards are applied based on race. Kolbo will also explain why the Law School’s professed goal of “enrolling a critical mass of minority students” is the functional equivalent of a quota.
Both Kolbo and Herr will address the intervenors’ defense of preferences as a remedy for past discrimination. They will note that both Judges Duggan and Friedman concluded that the evidence and arguments presented by the intervenors amounted to little more than a claim that societal discrimination can justify racial preferences, a rationale explicitly rejected by the Supreme Court. Moreover, the attorneys will note, there is no evidence nor claim by the University that its preferences were intended to remedy past discrimination.