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Case challenging U. of Michigan's admissions policy reaches high court

Sunday, March 30, 2003

By Ann McFeatters, Post-Gazette National Bureau

WASHINGTON -- On Tuesday morning the nine men and women of the Supreme Court will convene to hear arguments on whether it's constitutional for the University of Michigan to give preference to minorities in its efforts to recruit a diverse student population.

The stakes are enormous, says Angelo Ancheta, director of legal and policy programs at The Civil Rights Project and a Harvard Law School lecturer.

More than 80 friend-of-the-court briefs on both sides have been filed. The ruling isn't expected until late June or July.

The president of the University of Michigan, Mary Sue Coleman, insists that it is impossible to have a good university in America today that is not diverse.

"Now is not the time to turn back the clock," she argues. "The color of your skin determines so many important things about your life experience -- where you live, where you go to work and with whom you work. Race still matters in our society. The ideal of colorblindness does not mean we can or should be blind to that reality."

Christopher Edley Jr., a Harvard law professor and member of the U.S. Commission on Civil Rights, says the university has to convince the court that racial diversity is a "compelling interest" that would justify racial preferences in admissions, and that the university's policies are "narrowly tailored" to accomplish that.

On the other hand, the plaintiffs argue that the only time race should be a factor in admissions is to remedy the present effects of the university's past discrimination, and that the university has to prove that its policies were doing that.

A better method of assuring minority representation among students, the argument goes, is to have a plan that guarantees admission to a state university, for example, for a fixed percentage of the highest ranking graduates of every high school in the state.

President Bush, who asked the federal government to file a friend-of-the-court brief against the university, argues that it is unfair that at the undergraduate level, African American students and some Hispanic students and Native American students applying to the University of Michigan "receive 20 points out of a maximum of 150, not because of any academic achievement or life experience, but solely because they are African American, Hispanic or Native American."

"To put this in perspective," Bush said, "a perfect SAT score is worth only 12 points in the Michigan system. Students who accumulate 100 points are generally admitted, so those 20 points awarded solely based on race are often the decisive factor."

The Center for Individual Rights argues that over a six-year period, the odds of a minority applicant being accepted at Michigan were 234 times greater than those of a non-minority applicant with the same grades and test scores. The center says that violates the constitutional guarantee of equal protection for all citizens.

The Bush administration argued that Michigan's policies are "fundamentally flawed," but it did not ask the court to strike down all references to race in admissions procedures.

The Congressional Black Caucus, which filed a friend-of-the-court brief in support of the University of Michigan, argues that without affirmative action, the number of minority students going to college, already low, would drop significantly.

Sen. Carl Levin, D-Mich., who strongly supports Michigan's policy, argues that a point system for minorities is no different from the widespread practice of colleges and universities giving special consideration to children of alumni, large donors, public officials, faculty and staff, as well as athletes and students from under-represented parts of a state.

There actually are two 1997 cases before the court on Tuesday, one brought by a student denied admission to the law school and the second by two white students denied admission at the undergraduate level.

It's the undergraduate policies that award points to minority applicants. The law school gives more individual consideration to applicants but looks at race and ethnicity in an attempt to bring about a "critical mass" of underrepresented minority students on campus.

The Court could uphold one policy or the other, strike down both or uphold both.

In 1978, a divided Supreme Court ruled in University of California v. Bakke that schools could not use numerical quotas for minority admissions, but could consider race as a factor, a nebulous guideline which has been used by universities for almost a quarter of a century.

In that case Justice Lewis F. Powell said a university's interest in promoting diversity was compelling and that a properly devised admissions program involving the competitive consideration of race and ethnic origin was constitutional. In other words, says Ancheta, an applicant's race may tip the balance in an admissions decision, but all applicants are competing for the same seats in the entering class rather than having some set aside for minorities or other groups.

The Court has to decide whether it agrees that Bakke is good law.

A number of legal scholars say Justice Sandra Day O'Connor will be the swing vote on the case, as she has been in a number of high-profile cases.

They do not think she will rule to overturn Bakke but, on the other hand, they know that she is a firm opponent of quotas or any kind of fixed percentage set-asides for minorities. The University of Michigan insists it does not have quotas.

In general, O'Connor is not seen as a justice who likes to set broad new law. She and Powell were close friends, and she respected his decisions. That might mean she would support the university. But she is also on record in favor of having institutions try race-neutral methods of achieving diversity.

That might mean she could oppose the university's policies.

Plaintiff Jennifer Gratz, now a 25-year-old software trainer who expects to be at the Supreme Court on Tuesday, told The Detroit News that she dropped her intention to become a doctor when she was rejected by the University of Michigan because it weakened her self-confidence. She lost opportunities in life because of the rejection, she said.

"Students every day are being treated unfairly," Gratz said.

Ann McFeatters can be reached at amcfeatters@nationalpress.com or 1-202-662-7071.

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