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

Undergraduate applicants Jennifer Gratz and Patrick Hamacher claimed that the university discriminated against them to accept Blacks and Hispanics with lower test scores and grade-point averages, even though more than 1,200 other White applicants with lower test scores and grades than Gratz, for example, were admitted to Michigan the same year she applied, said Godfrey Dillard, a Detroit lawyer who was representing the Black and Hispanic students who won the right to intervene in the university's affirmative action case (see Black Issues, Dec. 7, 2000). Law school applicant Barbara Grutter also filed a lawsuit in 1997, claiming she was denied admission to the university's law school in favor of less-qualified minorities.

This spring the case will end up in the highest court of the land, and could have the most seismic impact on higher education in 25 years.

Nearly all legal scholars agree that the affirmative action lawsuits against the University of Michigan's Ann Arbor campus and its law school are historic. And now that Bush has weighed in on the issue, the case is receiving unprecedented attention from the media and public. With oral arguments beginning in April, the court could rule as early as June.

TAKING SIDES

Robert A. Sedler, a constitutional law expert and law professor at Wayne State University in Detroit, predicts that the Center for Individual Rights, which represents Gratz and the two other plaintiffs who claim they were denied admission in favor of less qualified minorities, will make a twofold argument. The first is, that the U.S. Constitution prohibits from taking race into account, and second, even if it did allow race to be considered, the Michigan plan weighs race too heavily and effectively uses a racial quota, which is unconstitutional.

Michigan, on the other hand, will have to persuade the justices that the Constitution does allow race to be used, and that its particular program is narrowly tailored enough to achieve that goal, Sedler says.

Sedler also says the court will likely revisit Bakke, the Supreme Court decision that most U.S. colleges and universities have used to craft their admissions policies for more than two decades.

Ted Shaw, associate director of the NAACP's Legal Defense and Educational Fund Inc., which represents minority students intervening in the undergraduate case, says Bush presented the nation with "a politically adroit statement that ignores the facts and cynically manipulates White working-class concerns about access to higher education."

Shaw also says that the president "did not take a hard-line stance in opposition to affirmative action, but he is advocating a standard that makes it impossible for colleges and universities to practice raceconscious admissions."

Bush and other critics of affirmative action have suggested that Michigan consider other alternatives that do not take into consideration an applicant's race. Texas, California and Florida are the three states that have tried a "percentage plan" based upon high-school class rank for admission to their public universities. Under these plans, a fixed percentage of the graduating class of each high school in the state is guaranteed admission to one or more universities in the state system. The plans are intended to replace race-conscious admissions systems while still achieving the goal of racial diversity in the student body.