- The Washington Times - Wednesday, May 15, 2002

A federal appeals court yesterday upheld race-based admissions policies at the University of Michigan law school, setting up a likely Supreme Court test on using affirmative action to increase campus diversity.

The 5-4 decision by the Cincinnati-based 6th U.S. Circuit Court of Appeals was a victory for affirmative action and ran counter to 5th and 11th Circuit decisions barring favoritism of less-qualified minorities at the universities of Texas and Georgia.

The 6th Circuit majority said the exception to legal precedent is justified because the Michigan policy appears "sensitive to the possibility that it might someday have satisfied its purpose" and be ended.

"The law school intends to consider race and ethnicity to achieve a diverse and robust student body only until it becomes possible to enroll a 'critical mass' of under-represented minority students through race-neutral means," the 6th Circuit said.

Advocates used the diversity theory to justify affirmative action based on Supreme Court doctrine in the 1978 Bakke decision, which allowed the University of California to consider race but banned quotas. The Supreme Court later outlawed race-conscious policies as a remedy for historic discrimination, rather than to compensate individuals who were personally discriminated against.

"It's a great day for the University of Michigan and for all of higher education," said university Vice President Marvin Krislov, the lawyer who argued that race was simply one factor considered with academic achievement and economic status.

The court said the absence of "a definite stopping point" for preferences on race does not make the policy unconstitutional, even though the Supreme Court's Adarand decision requires such a plan "not last longer than the discriminatory effects it is designed to eliminate."

"The [Adarand] directive does not neatly transfer to an institution of higher education's non-remedial consideration of race and ethnicity," the majority said.

The full 6th U.S. Circuit Court with seven whites and two blacks heard the appeal, rather than the customary three-judge panel. It reversed U.S. District Judge Bernard A. Friedman's finding that the state had no compelling interest in racial diversity.

In March 2001, Judge Friedman declared unconstitutional the law school's consideration of race and ethnicity in deciding whom to admit.

A blunt dissent written by 6th Circuit Judge Danny Boggs and joined by three colleagues said: "This case involves a straightforward instance of racial discrimination by a state institution. Other than in the highly charged context of discrimination in educational decisions in favor of 'underrepresented minorities,' the constitutional justifications offered for this practice would not pass even the slightest scrutiny."

The court withheld a decision on a similar policy affecting university undergraduates, and did not explain why it resolved only the law school case.

The Michigan policy upheld yesterday appeared identical to one endorsed on April 22 by Virginia Attorney General Jerry Kilgore, who told state schools they could not favor racial minorities as a remedy for past discrimination, but that race could be considered to diversify the student body.

Curt Levey, chief counsel for the Washington-based Center for Individual Rights, which successfully challenged the Texas system and was winning the Michigan case until yesterday, promised an appeal from his client, a white applicant rejected by the law school.

"This issue can only be resolved fully by the Supreme Court," he said.

Miranda Massie, attorney for students who went to court with an argument that she said "debunks the myth of meritocracy," called the decision "a stunning and historic victory for the students and the movement they're building."

She said that "everything we value most is at stake" and predicted the Supreme Court would uphold the ruling for "pro-affirmative action, pro-integrationist forces in our society."

She likened yesterday's rulings to the Supreme Court's landmark 1954 school desegregation decision, which the appeals court cited as a precedent. "They are our generation's Brown versus Board of Education," she said.

All sides agreed that the conflict among the circuit courts made it virtually certain that the Supreme Court, which had turned away the Georgia and Texas cases, would review the case next term.

"This is a decision that will be objected to by many legal scholars and other federal courts around the country. That is why it is the perfect case to go the U.S. Supreme Court," said Larry Dubin, a law professor at the University of Detroit Mercy. "This is a steppingstone to a landmark decision."


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