- The Washington Times - Wednesday, March 28, 2001

A federal judge in Detroit has struck down the University of Michigan law school admissions policy as unconstitutional because it uses race as a factor to select students.

U.S. District Court Judge Bernard A. Friedman, ruling in the 1997 case of applicant Barbara Grutter who sued the law school claiming she was rejected because she was white, said whatever method the university uses for admission, it must be "race neutral."

He ordered the law school to immediately stop using race in admissions, and said the university is liable for damages, which will be determined in a second phase of the trial.

"The focus must be upon the merit of individual applicants, not upon assumed characteristics of racial groups," wrote Judge Friedman in a 91-page decision that is certain to be studied by universities around the nation.

In issuing his ruling, the judge went on to note that law school populations would naturally become more racially diverse when gaps in law school admissions tests, undergraduate grades, and other academic measures were narrowed by greater investments in improving the nation's "under performing primary and secondary school systems."

"This is a social and political matter, which calls for social and political solutions," he said.

University of Michigan President Lee C. Bollinger said in a statement that the university would appeal and seek an immediate stay of the judge's order.

Yesterday's ruling sets the stage for a possible Supreme Court review of the issue of race and college admissions. The matter is of concern for universities around the nation who use similar affirmative action admissions policies that they defend are designed to assist minority applicants and increase diversity.

In 1978, the U.S. Supreme Court ruled in the Bakke case that consideration of race in university admissions was constitutional, but it outlawed the use of racial quotas. In 1996, the University of Texas law school ended the use of race in admissions. Racial preferences also have been legally banned in Washington and Florida.

But the battle over quotas is far from over.

Ruling in December on a separate lawsuit brought by two white Michigan undergraduates, Judge Friedman's own colleague from the 6th Circuit, Judge Patrick Duggan, said Michigan University's undergraduate admissions policy, which uses race as a factor in admissions, was constitutional.

Lawyers representing the Michigan law school had argued that race was among several factors that were used to consider applicants. At trial, University of Michigan law school officials testified that minority students were key to ensuring a diverse student body and exposing all students to a wide array of views. They said they wanted about 10 percent to 17 percent of each new law school class to be filled by minority students.

Judge Friedman, however, said that the school's justification for using race did not constitute "a compelling state interest."

"Even if it were," he added, "the law school has not narrowly tailored its use of race to achieve that interest."

Under constitutional law, a race-based admissions policy "cannot be justified on the grounds that certain races are at a greater competitive disadvantage than others because of discrimination or other societal conditions which may have created 'an uneven playing field.' Nor can a race-conscious system be upheld based on the predicted consequences of moving to a race blind system," the judge added.

He said that Michigan's affirmative-action policy resembled a racial quota system that requires a percentage of those students who are accepted to come from certain minority groups.

"The fact of the matter is that approximately 10 percent of each entering class is effectively reserved for members of particular races, and those seats are insulated from competition," Judge Friedman said.

Michigan law school Dean Jeffrey Lehman called Judge Friedman's decision "squarely inconsistent" with the high court's position in Bakke, and said he was confident the university would prevail upon appeal.

Sheldon E. Steinbach, general counsel and vice president at the American Council on Education, said his organization supports the university's position and has filed briefs on their behalf in both the law school and undergraduate cases.

"We do believe that Bakke is still good law and the use of race as a plus-factor in the admissions process is constitutional," Mr. Steinbach said.

The plaintiff, Mrs. Grutter, said yesterday she was pleased by the judge's ruling and motivated mainly by principle to wage a three-year legal fight against the University of Michigan. She was represented by attorneys from the District of Columbia-based Center for Individual Rights.

"I have always taught my children that discrimination is wrong both morally and legally," said Mrs. Grutter, 47, and a mother of two. "Now I can tell them that's not just talk."

Miranda Massie, an attorney who represented a group of students who intervened in the case on behalf of the university, said Judge Friedman's opinion only heightens existing racial inequalities.

"This decision threatens to resegregate higher education and to increase the unfair racist stigma that is faced by minority students in higher education," she said. "We don't need any institutions in this society to be reserved for white people alone. If this decision is sustained, that would be its impact."

Bradford Wilson, executive director of the National Association of Scholars, which also filed an amicus brief in support of Mrs. Grutter, praised the judge for following the Constitution.

"This outcome is certainly a major victory for anyone who believes that individual achievement, not group membership, should be the academy's guiding light," Mr. Wilson said.

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