Few briefs filed against U. Mich. admit policies

Amidst the deluge of "friend of the court" briefs being submitted to the U.S. Supreme Court regarding the upcoming cases of Gratz v. Bollinger and Grutter v. Bollinger, there are far fewer submissions opposing the University of Michigan's policies. However, a significant percentage of the estimated 70 amicus curiae briefs that have been submitted to date have asked the court to rule that Michigan's admissions policies are unconstitutional. Despite odds that seem to show a clear majority in support of Michigan, the disparity in the numbers of briefs filed for each side were attributed by some to the lack of education and awareness on the part of the signatories. "Right now, it is very politically correct to support race preferences," said John Findley, principal attorney for the Pacific Legal Foundation, one of the organizations that has filed an amicus brief opposing Michigan. "Certainly academics and big business support it, but perhaps they don't understand the constitutional implications." Executive Director of the National Association of Scholars Bradford Wilson also agreed that political correctness silences professors who are against racial preferences. "To speak honestly about one's opinions on this subject is impossible, except for the very brave few," he said. However, this assertion is opposed by many, including Penn Law professor Anita Allen-Castellitto. "I think there are very few law professors in the United States that believe that the Michigan program is unlawful and unconstitutional," she said in an interview earlier this month. In addition to the high profile brief submitted by President Bush, other institutions such as the Anti-Defamation League, the National Association of Scholars and the Center for New Black Leadership, have weighed in against Michigan's policies. The ADL typically stands in favor of affirmative action and is a major proponent of diversity and civil rights around the world. While its brief was officially submitted in support of neither party, it states that "while we support the ends sought by the university and its law school, we cannot agree with their methods." Instead, the ADL is in favor of more race-neutral policies. "We're not saying that race shouldn't be a factor... but every applicant should be treated as an individual, not classified or given a proxy just on the virtue that they are of a particular background," ADL Regional Director Barry Morrison said. While the ADL is opposed to Michigan's specific admissions practices, Morrison pointed out that its "position is not to say that all programs at all schools should be shut down, but the way [Michigan's] program is structured, we think it places undue emphasis on race." But Morrison did recognize the potential danger this case poses to affirmative action at large. "Should this ruling be sweeping in nature and go well beyond the facts of this particular case and, for some reason, brings up threats to affirmative action and diversity, we'll... see what we can do to allow, permit and encourage diversity at that level," Morrison said. The NAS filed its brief based on the "position that students ought not to be discriminated against on the basis of their race." "This is a bedrock moral and legal principle," Wilson said. NAS also previously released a study refuting Michigan's claim that diversity in the classroom has educational benefits. Michigan's admissions policies are "a way to rationalize [the school's] view of a just social order," Wilson said. He charged that Michigan is "trying to wrap [its] desire to use race preferences in the language of traditional academic quality." "That, I think, is bogus," he added. Others had similar complaints about the social implications of Michigan's policies. "It says to people of certain minorities that you don't have to meet the same standards as other people do," Findley said. "It sends a signal that you don't have to work as hard to make grades as other people do." The Cato Institute, a nonprofit public policy research foundation, sees the issue more in terms of private versus public institutions, taking issue with Michigan's policies because it is a public state school. "Private institutions should be allowed to discriminate because they are private," said Vice President for Legal Affairs Roger Pilon. "The real distinction is along the lines of public versus private. Public institutions belong to us all." Staff reporter Julia Barmeier contributed to this report.

Affirmative action precedent set in 1978 landmark decision

The two cases against the University of Michigan set to be heard before the U.S. Supreme Court in April are not the first to confront the issue of affirmative action in higher education. The precedent for the use of race in university admissions policies was set by the Regents of the University of California v. Bakke in 1978. Bakke is considered one of the most important civil rights decision since the end of segregation and one of the most difficult cases ever heard by the Supreme Court. In a 5-4 decision, the court held that Allan Bakke, a white applicant rejected from the University of California at Davis School of Medicine, had been a victim of reverse discrimination as a result of the medical school's use of quotas in its admissions policy. Five justices argued that the rigid use of racial quotas in the medical school's admissions process violated the equal protection clause of the 14th Amendment. The remaining four justices held that the use of race as a criterion was constitutionally permissible. The opinion in the Bakke case, written by Justice Lewis Powell, states that although the use of quota systems violated Title VI of the 1964 Civil Rights Act, a university could consider race a factor in an admissions decision if doing so "could attempt to create [a] diverse body," Law professor David Rudovsky explained. Powell's "swing vote for the middle ground," Rudovsky said, was the deciding one in this case, and his opinion essentially articulated a compromise between the two viewpoints of the court. It reversed Bakke's admissions decision at the UC-Davis School of Medicine and, at the same time, upheld affirmative action. Powell's opinion was widely criticized by those who felt it would lead to widespread and aggressive use of racial criteria in university admissions, although "some thought it was appropriate to specifically consider race," Rudovsky said. Michigan's policies have been accused of resembling quota systems too closely. The decisions of the current Supreme Court cases -- Grutter v. Bollinger and Gratz v. Bollinger -- will either uphold or change the precedent established by Bakke. -- Sara Levine

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