Michigan: a case the Supreme Court cannot ignore: speculation now on how justices will vote - Noteworthy News - affirmative action - Statistical Data Included

Black Issues in Higher Education, June 6, 2002 by Erik Lords

CINCINNATI

Many legal experts across the nation agree that the University of Michigan Law School's affirmative action case will wind up before the U.S. Supreme Court as early as next year. But their opinions vary widely on how the high court might rule on the important case.

Most liberal scholars predict the U.S. Supreme Court will uphold last month's ruling that the U-M policy of considering race in admissions is constitutional. Conservative scholars think the high court will strike down the 5-4 decision by the U.S. 6th Circuit Court of Appeals in Cincinnati.

If the high court agrees to hear the case, the outcome could affect college admissions policies across the country. But one expert, Lino Graglia, a University of Texas Law School professor, thinks the nation should have no illusions about how the case ultimately will be decided if it reaches the Supreme Court.

"The law and the Constitution will have nothing to do with the decision," says Graglia, a longtime critic of affirmative action who made national headlines in 1997 after expressing inflammatory remarks about the policy. "It will all be about individual judgments.

"We want to pretend that these things are decided on the basis of the law, but that's perfect fiction," Graglia told the Detroit Free Press, referring to judges' political and philosophical biases that he said inevitably come into play in such high-stakes decisions.

He said allegations by one 6th Circuit judge that the chief judge of the court manipulated the outcome of the decision by waiting for two Republican appointees to retire from active duty before the full court took up the case shows what kinds of factors come into play on major issues.

The circuit panel ruled that Michigan's policy, which attempts to achieve a more diverse student body by considering the race of underrepresented minorities as a factor in admissions, is legal. Because federal circuit courts have issued conflicted rulings on similar cases, most legal experts think the Michigan case will be one the Supreme Court can't ignore. The court agrees to hear only about 2 percent, or 140, of the approximately 7,000 cases submitted to it each year.

"Here we have a question of tremendous national significance and a conflict within the 6th Circuit itself," says Georgetown University Law School professor Richard Lazarus. "One could expect the court to grant review."

The court could decide as early as late October whether to hear the case and arguments could begin in February of next year. Earlier cases in Georgia, Texas and Washington state either have been refused by the Supreme Court or dropped by the universities.

In 2001, the Supreme Court refused to hear an appeal of a U.S. 5th Circuit Court of Appeals in New Orleans ruling that disallowed the use of race as an admissions factor at the University of Texas law school. In 1996, the court also refused to hear the same case, known as the Hopwood case.

The high court also refused last year to review a decision by the U.S. 9th Circuit Court of Appeals in San Francisco that upheld the use of race in admissions and affirmed diversity as a compelling state interest at the University of Washington law school (see Black Issues, June 21, 2001).

Last year the 11th U.S. Circuit Court of Appeals in Atlanta struck down the use of race in admissions in a University of Georgia case. University officials decided to change the admissions policies rather than appeal the case to the high court.

William Van Alstyne, a law professor at Duke University in Durham, N.C., says it's not uncommon for the Supreme Court to pass up two or three cases on a particular topic until enough appellate courts have ruled on an issue. The high court prefers to have a range of judicial opinions before settling a controversy, he says.

Van Alstyne says he thinks the Supreme Court will vote down the U-M policy by a 5-4 or 6-3 margin. Graglia, however, says he thinks it could be a split decision, with Justice Sandra Day O'Connor casting the tie-breaking vote. But he says it's hard to tell how she might vote based on her inconsistency in other cases.

Susan Low Bloch, a law professor at Georgetown University, predicts O'Connor will uphold Michigan's policy.

"Michigan has carefully drafted this program and it will give her a chance to show that not all affirmative action programs are unconstitutional," Bloch says.

Robert Sedler, a Wayne State University law professor and expert on constitutional law, says there is a "reasonable possibility that the Supreme Court will uphold the 6th Circuit's decision."

"Contrary to media hype, the Supreme Court is not all ideologically driven and at least some justices are going to wait to make up their minds," Sedler says.

Sedler says the high court may look again at the landmark 1978 Bakke case in which the court ruled that race could be used as one factor in admissions.

"The court is going to decide whether or not Bakke did hold that racial diversity is a compelling state interest in education. Secondly, the court may revisit that issue and may consider anew whether diversity is a compelling interest," Sedler says.