Supreme Court asked for extraordinary review of nation's leading affirmative action case

Plaintiffs in U. of Michigan lawsuit say don’t wait for lower court decision

Washington, D.C.–Applicants challenging minority admissions preferences at the University of Michigan petitioned the U.S. Supreme Court today to hear their closely watched case. The request is extraordinary, because the U.S. Court of Appeals for the Sixth Circuit has yet to issue its decision in the case, Gratz v. Bollinger, which challenges the legality of a 20-point bonus for black, Hispanic, and Native American applicants to the University’s College of Literature, Science, and the Arts. The Sixth Circuit’s long delay in the case, which was argued last December, is part of the reason for the petition. The Supreme Court will soon decide whether to hear Grutter v. Bollinger, a companion case challenging admissions preferences at the University of Michigan Law School. That case was argued on the same day in December, but was decided by the Sixth Circuit in May. Any further delay in asking the High Court to review Gratz would have meant that the two cases could not be heard together by the Court during its 2002-03 term.

A “Writ of Certiorari Before Judgment,” which plaintiffs Jennifer Gratz and Patrick Hamacher seek, is authorized by Supreme Court rules, but is rarely asked for or granted. But it may well be granted here, because of the timing issues and the importance of the case. The plaintiffs’ petition notes that “the delay that has already occurred . . . is incompatible with the time-sensitive nature of the admissions process and with the Sixth Circuit’s ruling that the appeal would be expedited.” The petition explains that the delay is particularly problematic, because Gratz “presents issues of fundamental national importance . . . and the resolution of these issues will almost certainly have effects that extend far beyond the parties to the case.”

If the petition is granted, the Supreme Court would review a federal district court decision which upheld the College’s current race-based admissions system, but found that Gratz and Hamacher, who are white, had been unconstitutionally denied admission under the previous system. It is likely that the Court would also hear Grutter, in which the Sixth Circuit upheld minority admissions preferences at the Law School.

“If we waited any longer for the appeals court decision, the Supreme Court would be unlikely to decide the College case before the spring of 2004,” said Curt Levey. Levey is Director of Legal & Public Affairs at the Center for Individual Rights, which, along with Minneapolis’s Maslon, Edelman, Borman & Brand, represents the Gratz and Grutter plaintiffs. “The nation is looking to this case to clarify the status of race-based admissions, and it shouldn’t have to wait another two years for finality and certainty,” added Levey. Maslon’s Kirk Kolbo explained that “we are confident that the College’s admissions system will ultimately be struck down as unconstitutional, so it would be unconscionable for us to wait any longer for the Sixth Circuit’s decision, while thousands of white and Asian applicants to the University of Michigan are forced to endure an additional year of discrimination.” Plaintiff Jennifer Gratz said she was “looking forward to speedy resolution of this case after five years of litigation.” “I was rejected by the University because I had the wrong skin color,” said Gratz, “and I’m hoping the Supreme Court will put an end to such discrimination sooner rather than later.”