Michigan affirmative action case will reverberate widely

Such questions are at the heart of unusual back-to-back hearings that had been scheduled for today in the US Court of Appeals for the Sixth Circuit in Detroit. The hearing was postponed until Dec. 6 to allow all nine judges of the court to hear arguments in two lawsuits attacking race-conscious admissions policies at the University of Michigan at Ann Arbor. Either case could one day be heard by the United States Supreme Court, and legal experts say they may profoundly affect the lives of more than 14 million college students.

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This is a critical juncture: The university is pulling out all the stops in what some describe as a last-ditch legal "Alamo" for race-conscious admissions in higher education - the last, best defense of that approach.

But the issue is hardly new. Race-conscious admissions in college, tenuously supported by the Supreme Court's landmark 1978 decision in Regents of the University of California v. Bakke, has been under heavy legal attack for a decade.

Several universities have tried and failed to defend race-based admissions policies. The University of Georgia was rebuked by the 11th Circuit Court of Appeals this summer for its affirmative action policy. Some polls have shown that a majority of Americans are against using race as a factor in college admissions.

Barbara Grutter and Jennifer Gratz are two of those opponents. A professional woman and mother, Mrs. Grutter applied to attend the University of Michigan School of Law in the mid-1990s, but was denied. About the same time, Ms. Gratz applied to attend the University of Michigan as a freshman - and was also denied.

They didn't know each other, but both soon discovered that minority students had been admitted whose grades and test scores were not as good as their own. They filed reverse-discrimination lawsuits.

Last year a federal judge ruled against Gratz and in favor of Michigan's undergraduate admissions policy. This year, however, another federal judge found in favor of Grutter and against the law school's admissions policy.

Lawyers for both will argue that the women were denied admittance simply because the university illegally played favorites on the basis of race.

The University of Michigan enters the arena with a measure of confidence, though. The school has been preparing for this day for years - mounting an enormous and expensive legal defense. The fundamental legal issue in both cases is whether educational goals justify the use of race-conscious admissions, the school's legal experts say.

At least 80 organizations have joined to file 32 friend-of-the-court briefs in favor of the university's policy. In addition, General Motors and at least 30 other Fortune 500 corporations have allied themselves with the school. "We've been fighting these cases since 1997, and we've had the benefit of the leadership and resources to allow for this issue to be decided in light of comprehensive expert testimony," says Liz Barry, the university's deputy general counsel. "We've put together careful, factual, and statistical analyses to lay the educational foundation for race-conscious admission."

University lawyers are unlikely to argue that the school did not discriminate, observers say. Rather, they will probably contend that racial and ethnic diversity on campus is so important to American higher education that it is a "compelling governmental interest."

If the judges agree, then the schools' discrimination was legally permissible, albeit only in a form "narrowly tailored" to accomplish the goal, legal experts say. But the ramifications if the court finds instead for the plaintiffs could be profound.

"Nearly every selective college and university employs race-conscious admissions," Ms. Barry says. Any ruling that denies that diversity is a compelling interest for race-based admissions "would apply to both public and private universities, and would be devastating."

The outcome of such a ruling might parallel those at selective schools in states with prior negative rulings - Florida, Texas, California - "where only token numbers of minority students now attend," she says.

Curt Levey agrees the decision will be important. As director of legal affairs at the Center for Individual Rights in Washington, a conservative public-interest law firm representing Grutter, he thinks the case could have wide ramifications for higher education.

"The University of Michigan has chosen to fight these cases much harder and in a more public and expensive way" than other schools have, he says. "If they fail here, it will be seen as a bigger defeat."

To Saul Green, it's an open-and-shut case. His admission to the Michigan law school in the late 1960s was a personal landmark. It shows how important such polices are for minorities, the lawyer wrote in the Detroit Free Press last week.

"I am certain my admission to the law school reflected its affirmative action program," he wrote. "Race does and will matter until all things are truly equal - not only in higher education, but in all spheres of our nation."