Minority Students May Be Star Witnesses in U-Michigan Affirmative Action Lawsuit

Black Issues in Higher Education, Dec 7, 2000 by Erik Lords

At first, it resembled previous affirmative action/reverse discrimination lawsuits: White plaintiffs who felt they were wrongly denied admission were suing a highly selective public university. But the dynamics of the case changed dramatically last year when the Sixth Circuit Court of Appeals allowed the intervenors, a group of prospective applicants to Michigan and its current students, to enter the case. In doing so, the appeals court overruled a 1998 ruling in a lower court that had blocked the students from entering the case.

"People of color should be allowed to come into these cases, as parties, not as outside observers while the majority makes the decisions for us," says Dillard. "Black and Hispanic students are the ones who could be hurt the most by this."

Elizabeth Barry, a University of Michigan attorney, says the institution has not and will not admit to past or present discrimination, but she says the Ann Arbor institution welcomes the minority student presence.

"It's great to have the student voices in the case; we see their defense as complementary, but it is different from our defense," she says. "We talk about the benefits of having diversity and a critical mass of minority students. They talk about the problems that can occur when there are only token numbers of minority students."

Kirk Kolbo, a lawyer for the plaintiffs, says that he does not want the intervenors involved because they would divert attention from the issue of whether the students he represents were discriminated against. After last week's hearing, Terry Pell, CEO of the Center for Individual Rights, for whom Kolbo works, said the intervenors' discrimination defense "won't have any bearing on our argument that Michigan's present admissions process is racially preferential."

HISTORIC INTERVENTION

In a similar case in 1994, Cheryl Hopwood, a White woman, sued the University of Texas law school, claiming she was denied admission while minorities with lower grades or test scores were admitted. But a Texas court did not allow minority students to intervene, and lawyers for Hopwood prevailed. A judge's ruling later struck down affirmative action in public universities in Texas.

The Michigan intervenors are the first such group ever allowed into an affirmative action case, and if the judge opts to have a trial involving them, it might change future legal strategies used by other universities where race-sensitive admissions policies are under attack. A reverse discrimination suit against the University of Washington is in the fact-finding stage. Meanwhile, officials at highly selective public universities across the nation are monitoring the Michigan outcome because nearly all them use race as one of many admissions factors.

For Michigan, a trial involving the student intervenors could lead to embarrassing national publicity as lawyers provide evidence of past and present discriminatory treatment of Black, Hispanic and American Indian students in federal court. Some legal observers say concern about that strategy is precisely why Michigan has hinged its defense on stressing the value of a diverse campus, rather than reopening old racial wounds. The pro-diversity argument stems mostly from the landmark 1978 Bakke vs. University of California Regents, in which the Supreme Court said that universities can use race as a "plus" factor to enhance intellectual diversity. That decision has thus far allowed universities to avoid falling on their swords and admitting past discrimination against Blacks, Hispanics and American Indians.