- The Washington Times - Tuesday, October 22, 2002

The Supreme Court's long-awaited ruling on the legality of race-based university admissions may be just around the corner. In a bold move, the plaintiffs in the nation's most prominent challenge to affirmative action asked the Supreme Court this month to review their case, even though it has yet to be decided by the appeals court below. While such a request is rarely made or granted, this one may well be an exception.

Not only is this case against the University of Michigan's college one of great national importance, but a request to review the companion case against Michigan's Law School is already before the Supreme Court. Moreover, an inexplicable delay by the appeals court threatens to throw a wrench in the Supreme Court's timing and to prolong uncertainty for applicants and admissions officers nationwide, who are waiting for the final word on whether race-based admissions unlawfully discriminate against whites and Asians. Amid predictions that the justices are ready to tackle the issue, only one thing appears to stand in the way of a decisive ruling the University of Michigan.

Michigan recently announced that it will petition the Supreme Court not to take the law school case. And the university's reaction to this month's request revealed the same reluctance. "We think CIR is trying to take away our [presumed appeals court] victory from us," said Marvin Krislov, the university's general counsel, referring to the Center for Individual Rights, which represents the plaintiffs in both cases. He indicated Michigan's lukewarm response will amount to: If you take the law school case, you might as well take this one too.

Contrast that reluctance with the reaction of student groups that have intervened in the two cases to defend race-based admissions. Attorneys for the intervenors welcomed Supreme Court review of both cases. Though the plaintiffs and intervenors are poles apart in their mission and ideology, both groups clearly have the courage of their convictions. Each is eager to fight for their cause in the Supreme Court, and each believes that the nation needs clarity, finality, and a uniform rule of law on this issue.

Right now, there is only the Supreme Court's muddled, quarter-century-old University of California vs. Bakke opinion to "govern" the use of race in admissions. The lower courts have split on the meaning of Bakke, such that race-based admissions are either legal, illegal, or up in the air, depending on the state. "The situation is so confused now that the risk of the Supreme Court decision being a bad one is almost worth it," said Ann Springer of the American Association of University Professors, which has been a vocal supporter of race-based admissions.

The Michigan cases provide the Supreme Court with its best and perhaps only chance to address the admissions issue in the foreseeable future. The cases have an unusually well-developed factual record and are structured such that the Supreme Court will almost surely have to answer the key question: Does a school's interest in diversity overcome the constitutional and statutory prohibitions against racial discrimination?

Those who desire clear and uniform rules for the use of race in admissions want the Supreme Court to take the Michigan cases and confront this key question head-on. So, why is the University of Michigan opposing Supreme Court review? Sure, litigants usually oppose such review when they win in the appeals court as Michigan did in the law school case but all sides agree that these are not usual cases. If heard by the Supreme Court, they would likely result in one of the most important decisions of recent decades. And, having declared that it is fighting for the entire higher-education community, Michigan is hardly the usual litigant. Letting the current patchwork of lower court rulings stand is no victory for that community.

Supporters of race-based admissions have responded to Michigan's rallying cry by making these cases filed in 1997 the focal point of their hopes. It's a wise choice. Michigan has fought harder than any other school to defend its use of race, spending millions on attorneys, expert witnesses, public relations and studies on the value of diversity. If that's not enough to defend racial preferences in admissions, their outlook is bleak.

The university's reluctance can have only one of two explanations. Either Michigan is tired of leading a crusade. Or its boisterous proclamations that the law is on its side are merely bluster. Either way, the university's position is a disappointment to those hoping for clarity and finality on this controversial issue.

But, with Michigan's official response still pending, there's time for the school to do the right thing by supporting Supreme Court review. Michigan owes as much to its supporters, to the higher-education community, and to the young people getting ready to apply to college and graduate school. Michigan has fought tenaciously for the last five years. Now is not the time to shrink from that fight.

Curt A. Levey is director of legal and public affairs at the Center for Individual Rights, which represents the plaintiffs in Gratz vs. Bollinger and Grutter vs. Bollinger, the lawsuits challenging race-based admissions at the University of Michigan's College and Law School respectively.

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