Taking sides: legal scholars may be divided on the possible outcome of the University of Michigan's affirmative action cases, but they all agree it will be historic - Ruling On Affirmitive Action

Black Issues in Higher Education, Feb 27, 2003 by Erik Lords

As lawyers on both sides make their final preparations for the approaching April 1 deadline to present oral arguments to the U.S. Supreme Court in the University of Michigan's two affirmative action cases, legal scholars say it's anyone's guess on who will eventually prevail in the landmark decision.

Marvin Krislov, vice president and general counsel for the University of Michigan, says the university will present the U.S. Supreme Court with new amicus briefs expressing support from "religious groups that haven't yet spoken out on the issue, military organizations and more K-12 organizations." The private universities will be speaking out more also because they have a stake in this as well--you will hear more from the Ivies," Krislov says.

In addition, at Black Issues press time, Dr. Mary Sue Coleman, president of the University of Michigan, was expected to hold a press conference Feb. 17 during the American Council on Education's annual conference in Washington. Representatives of organizations filing amicus briefs on behalf of the university also were expected to speak at the news conference.

The university expected more than 50 briefs to be filed, and more than 200 organizations to sign on to those briefs--including Fortune 500 corporations, former military leaders, labor unions, members of Congress, civil rights groups, law schools and legal associations, Asian/Pacific American groups, Jewish groups, social science organizations and researchers, the medical/health professions, several states, and numerous higher education groups, colleges and universities. The deadline for the university and all of its amicus supporters to file their briefs with the court was Feb. 18.

Susan Bloch, a law professor at Georgetown University, says Michigan's new wave of "friend of the court" briefs "are meaningful, but I don't think they are controlling at all. They indicate that many segments of society accept the Michigan policies, and it's the way the country is moving. Some justices will be more than happy to go against that, but I think the middle justices will pay attention," to the sentiment expressed in the briefs.

In another strategic move, Michigan will address the court with a newly added attorney, Maureen Mahoney, an experienced Supreme Court litigator who has argued 11 cases before the court and won 10 of them. She will join John Payton, who argued Michigan's cases on the district and federal circuit court levels.

The addition of Mahoney will add legal firepower and expertise, but Michigan plans "no sort of fundamental changes to our strategy," Krislov says. "But obviously we want to keep abreast of any current developments or any new claims our opponents and their amici are making."

`FUNDAMENTALLY FLAWED'

President George W. Bush in mid-January called the University of Michigan's admissions policies "fundamentally flawed," and said that although he strongly supports diversity of all kinds, including racial diversity in higher education, "the Michigan policies amount to a quota system that unfairly rewards or penalizes perspective students, based solely on their race."

U.S. Solicitor General Theodore B. Olson and other critics of Michigan's admissions policies reportedly were unhappy that Bush's briefs and his comments to the nation did not go far enough, because the president did not ask the court to overturn the landmark 1978 Bakke v. Regents of University of California case, which struck down quotas but permitted the use of race as a factor in admissions.

Bush's views on the Michigan case might be amplified in person before the Supreme Court. Olson, acting as Bush's agent this month, requested to speak before the court for 10 minutes during oral arguments to expand Bush's views.

Olson, while in private practice, was hired by two of the four White plaintiffs in a case filed in 1992 against the University of Texas School of Law. Arguing before the U.S. 5th Circuit Court of Appeals in New Orleans, Olson contended that achieving diversity did not justify using race as a factor in admissions. In 1996, the court agreed, and ruled the admissions policy unconstitutional.

In the motion filed this month, Olson said the two Michigan cases raise "important questions concerning the consideration of race in university admissions," and that the U.S. Department of Justice has the responsibility to enforce the equal protection clause of the Constitution and federal civil rights laws.

Curt A. Levey, director of legal and public affairs at the Center for Individual Rights (CIR), the Washington-based legal foundation that represented plaintiffs in both Texas' Hopwood case and in the Michigan case, says the group would give Olson time to express the government's views.

"He will help us because he is somebody who is respected on both sides of the case," Levey told Black Issues. "But we are confident of winning based on the law and the facts and not just on who is on our side."

A HISTORIC DECISION

The lawsuits against the University of Michigan, filed in 1997 on behalf of three White applicants, claim the university unconstitutionally uses race as factor in admissions to the university's undergraduate colleges of literature, science and the arts, as well as to the university's law school.