May 11, 1999, Tuesday



A New Turn in Defense of Affirmative Action


By STEVEN A. HOLMES (NYT) 1578 words

ANN ARBOR, Mich. -- All over the campus of the University of Michigan, the signs of a racially and ethnically eclectic student body abound.

The student union is home to the Asubuhi (''morning'' in Swahili) Multicultural Lounge. The bulletin board outside lists 49 ethnic organizations. In the cafeteria, Pedro Cox-Alomar, a black Hispanic junior from San Juan, P.R., shares breakfast with his buddy Karl Benkert, white, from rural Michigan.

The university's officials say it is no accident that racial and ethnic minorities account for more than 25 percent of its 36,000 students, a statistic that makes this the most diverse of any large institution of higher learning in the Midwest. The mix results from aggressive recruitment of minorities and, in some cases, advantages to black and Hispanic applicants in the highly competitive admissions process.

Disproportionate advantages, contend some critics, who note that for example, the admissions point system gives more weight to being black or Hispanic than to getting a perfect score on the Scholastic Assessment Test. (The university points out that far greater weight is given to high school grades than to either of those factors.)

The institution's policy is now the target of two lawsuits by a total of three rejected white applicants, all turned down, they say, because of their race. So has the University of Michigan become yet another front in the war over affirmative action, following the rollback of race-conscious admissions policies at universities in California and Texas.

But what distinguishes the Michigan case is the university's full-throated counteroffensive: the marshaling of statistical evidence of the benefits of racial diversity.

Unlike California and Texas, which defended their policies with only anecdotal evidence, Michigan has compiled data, on its own students and others, showing that among other things, people who were exposed to a diverse student body while in college are more likely five years after graduation to work in integrated settings, live in integrated neighborhoods and have friends of another race.

Patricia Gurin, a professor of psychology and women's studies at the university, concluded in one report that five years after graduation, whites who had attended colleges with the most diverse student bodies experienced the greatest growth in active thinking processes, in motivation to achieve and in intellectual self-confidence.

''Our research confirms what we have experienced firsthand as educators: that diversity enhances learning,'' said Lee Bollinger, the university's president. ''Encountering those who are different allows our students to learn about each other's similarities and differences and to destroy stereotypes.''

The nature of Michigan's defense stems from an emerging strategy by affirmative action's supporters to make an empirical case for it, rather than a purely anecdotal or intuitive one. The university's research follows a survey issued last fall by two former Ivy League presidents, William G. Bowen of Princeton and Derek Bok of Harvard, that was based on the records and experiences of 45,000 students over 20 years at 28 elite colleges around the country. The Bowen-Bok research concluded that affirmative action policies at those colleges had created the backbone of the black middle class and taught white classmates the value of integration.

Lawyers for the Michigan plaintiffs maintain that however noble the idea of creating a diverse university, Michigan is blatantly discriminating against whites to achieve it. They allege violation of the Constitution's equal-protection guarantees, among other protections.

''I think that discrimination always hurts someone,'' said one plaintiff, Barbara Grutter, a 45-year-old mother of two who was rejected by Michigan's law school in 1997. ''I don't know how we can have a country that says discrimination is wrong and yet have all these exceptions.''

The suits -- one against the law school, the other against the undergraduate college -- were filed in the Federal District Court in Detroit and will be argued in the fall. They have drawn the attention of civil rights groups, opponents of racial preferences, hundreds of colleges and universities, and the Clinton Administration, which has filed a court brief defending Michigan's admissions policies.

The plaintiffs are represented by the Center for Individual Rights, a Washington law firm that got a Federal appeals court to overturn an admissions policy at the University of Texas Law School that, the judges found, granted illegal advantages to black and Hispanic applicants.

In basing so much of its defense on the benefits of diversity, Michigan is relying on a 21-year-old Supreme Court opinion that became the legal basis for colleges' affirmative action programs but has come under increasing challenge since.

The Supreme Court case was California Regents v. Bakke, in which Justice Lewis F. Powell Jr. sided with one bloc of four Justices in concluding that a state medical school program that set aside a number of places for minority applicants was unlawful.

In so deciding, Justice Powell disagreed with the other four-member bloc, which said admissions officers could give preferences based on race in order to make up for societal discrimination. But in a separate opinion, he offered his own rationale for affirmative action, arguing that to promote the ''robust exchange of ideas'' that might flow from the diversity of a student body, institutions of higher learning could give some consideration to an applicant's race.

Three years ago the United States Court of Appeals for the Fifth Circuit, in New Orleans, rejected Justice Powell's opinion in striking down the affirmative action program at the University of Texas Law School. While that ruling applied only to the Fifth Circuit, critics of the Powell opinion say it should no longer be considered paramount anywhere. Noting that it had not been joined by other Justices, lawyers for the Michigan plaintiffs argued in court papers, ''There is no basis for concluding that Justice Powell's 'diversity' rationale represents the 'holding' of the Court.''

The plaintiffs also contend that even if the Bakke opinion is still law, Michigan violates its spirit by making race the decisive factor.

In assessing applicants, Michigan's admissions officers assign points to various academic criteria, among them grade point average, results on standardized tests like the S.A.T. and the relative difficulty of the applicant's high school courses. They also give points for a number of other factors: whether a student is black or Hispanic, for instance, or is from a low-income family, or comes from a county in the state that historically sends few students to the university. (Those counties tend to be overwhelmingly white.)

Critics point out that the admissions system gives 20 points for being black or Hispanic and only 12 points for scoring a perfect 1,600 on the S.A.T. That, they say, is evidence that race is not just one admissions factor but often the predominant one. 

University officials reply that such a comparison is misleading, since the largest number of points -- 40 -- is given for high school grades, and that standardized test scores generally do not reveal much more than do grades about an applicant's scholastic abilities.

As the date of court arguments draws closer, even some students who support affirmative action say they wonder whether the robust exchange of ideas envisioned by Justice Powell, who died last August, actually occurs here. A number of students interviewed on the last day of classes in April said that here at Michigan, as at other universities, there was a certain racial balkanization.

Fraternities tend to be overwhelmingly white or overwhelmingly black. African-American students tend to sit at their own tables in the cafeteria or gather alone on the steps of the student union on Saturday nights to socialize. Even the many clubs that are evidence of diversity are also evidence of a kind of separateness: there are Hispanic groups, Asian groups, groups that are predominantly white.

''Most students here do not try to make it happen,'' Carl Lawson, a black senior from Highland Park, Mich., said of students' developing relationships across racial lines. ''We tend to stay around people that are just like we are.''

Dr. Gurin, the professor who cited data in support of affirmative action's benefits, acknowledged that there was some self-imposed segregation on campus. But any talk that it is widespread, she said, is ''overblown.''

Whatever the outcome of the Michigan suits in the district court, both sides agree, the matter is headed for appeal. And the university is hoping for a friendlier reception in the Sixth Circuit, based in Cincinnati, than the University of Texas received in the conservative Fifth.

But no one can be sure that the program will survive the Sixth Circuit's judgment, or, if it is struck down, that the Supreme Court will hear an appeal. Michigan officials, though, are banking that their strategy will carry the day. As Liz Barry, the university's associate vice president and deputy general counsel, put it, ''We think our arguments that Bakke is good law and is the law of the land right now are overwhelming.''

March 28, 2001, Wednesday


U.S. Court Bars Race as Factor In School Entry

By JODI WILGOREN ( Chronology ) 1525 words

A federal judge in Detroit ruled yesterday that the race-conscious admissions system of the University of Michigan's law school is unconstitutional, contradicting a December ruling in a parallel case that upheld the university's affirmative action policy for undergraduate admissions.

The earlier ruling, by another judge on the same court and now on appeal, was seen as a flicker of hope for a movement fallen out of vogue while the new ruling joins a string of defeats for affirmative action over the last six years. The undergraduate approach is far more explicit about using race, yet the law school's more subtle system was struck down, as the judges offered sharply divergent views of the importance of diversity in higher education.

''All racial distinctions are inherently suspect and presumptively invalid,'' Judge Bernard A. Friedman of the United States District Court in Detroit wrote in his decision yesterday. ''Whatever solution the law school elects to pursue, it must be race-neutral.''

The current push against affirmative action began in 1995, when the Regents of the University of California banned the use of race in admissions. A federal appeals court outlawed the practice in Texas, Mississippi and Louisiana the next year, and since then, voters in California and Washington have rejected affirmative action in both higher education and state contracting.

The debate over race-conscious policies is one of the most contentious in higher education today, and the closely watched Michigan cases are widely expected to send the issue back to the United States Supreme Court for the first time since 1978 

''We have here one of the most significant issues of our time,'' Lee C. Bollinger, the university president, said yesterday from an airplane bound for San Diego, where he was scheduled to give a speech on affirmative action. ''The ideal of the integrated society, the importance of higher education to that ideal -- which is all consistent with the melting pot theory of American society -- is really now drawn into question.''

The class that entered the law school, one of the nation's most competitive, last fall was about 85 percent white and Asian, 15 percent black and Hispanic.

Lawyers from the Center for Individual Rights, the Washington organization that brought the Michigan lawsuits on behalf of white applicants who had been rejected, celebrated the ruling as a ''vindication'' and a ''clear repudiation'' of affirmative action. They noted that Judge Friedman's decision came after a 15-day trial, whereas the previous ruling by Judge Patrick A. Duggan -- both are Reagan nominees -- was on summary judgment, meaning he heard no witness testimony.

''This is a victory for every young man and woman and all future generations of students,'' said Larry Purdy, a Minneapolis lawyer who helped argue the case for the plaintiff. ''It moves us beyond the point where race matters.''

On the university's Ann Arbor campus, a handful of students who had intervened as third parties in the case denounced Judge Friedman as a relic from the era of Jim Crow and said the ruling threatened to return the country to the 19th century era of separate but equal institutions.

''There is a mass militant student movement in support of affirmative action,'' said Agnes Aleobua, 19, a sophomore from Detroit. ''We just took a huge step back, and we will not stand for it.''

The crucial question in both Michigan cases is whether racial and ethnic diversity in higher education is, in legal parlance, a ''compelling state interest'' that demands a race-conscious remedy.

The dueling decisions by the federal judges in Detroit turn on contrary interpretations of the landmark 1978 Supreme Court decision in University of California Regents v. Bakke, which struck down the admissions policy at the Davis medical school, but said universities could consider race as one of several ''plus factors'' in selecting applicants.

The tricky part is that Bakke was a 5-to-4 decision in which Justice Lewis Powell broke a deadlock by agreeing with four of his colleagues on some issues and the other four on others. In declaring that diversity ''clearly is a constitutionally permissible goal for an institution of higher education,'' Justice Powell stood alone.

Universities have based their admissions decisions on his rationale ever since, and Judge Duggan in December relied on it to embrace Michigan's use of affirmative action. But Judge Friedman said yesterday ''the diversity rationale is not among the governing standards to be gleaned from Bakke.''

Jeffrey S. Lehman, the dean of Michigan's law school, said the two opinions are ''completely irreconcilable.'' (Judge Friedman's echoes the United States Court of Appeals for the Fifth Circuit's 1996 decision in Texas v. Hopwood, which the Supreme Court declined to review, that affirmative action is unconstitutional.) The law school plans to appeal the decision.

Beyond the question of the importance of diversity, Judge Friedman said the law school's admissions system would be illegal in any case because it was ''indistinguishable from a straight quota system.''

The ''haphazard selection of certain races is a far cry from the 'close fit' between the means and the ends that the Constitution demands,'' he wrote, noting that the policy favored African-Americans and mainland-born Puerto Ricans but not Arabs or Eastern Europeans.

''If the law school may single out these racial groups for a special commitment today, there is nothing to prevent it from enlarging, reducing, or shifting its list of preferred groups tomorrow without any reasoned basis or logical stopping point,'' Judge Friedman wrote.

The split decisions in the Michigan cases are surprising because the undergraduate admissions system uses race more blatantly than the law school's and therefore seemed more vulnerable to attack. In admitting freshmen, the university gives black and Hispanic applicants a 20-point boost on a 150-point scale; the law school's approach is more subjective, with only vague guidelines about the importance of having a ''critical mass'' of minority students.

While white students have been more likely to gain admission to the law school than their minority counterparts -- 38 percent of white applicants were accepted last year compared with 35 percent of African-Americans -- a comparison of students with similar grades and test scores shows the advantage given to minorities.

For example, in 1995, all four African-American applicants with an undergraduate grade point average between 2.75 and 2.99 and scores on the Law School Admissions Test of 161 to 163 were accepted, while none of the 14 white applicants in those ranges were admitted. Among those with a G.P.A. between 3.25 and 3.49 and L.S.A.T. scores of 154 or 155, four of five African-Americans were admitted, compared to just one of 51 white applicants.

''The evidence indisputably demonstrates that the law school places a very heavy emphasis on race in deciding whether to accept or reject,'' Judge Friedman wrote.

As to the testimony showing that without affirmative action far fewer black and Hispanic applicants would likely gain admission to the law school, Judge Friedman suggested alternate routes to diversity, including paying less attention to grades, test scores, and whether an applicant's parents had graduated from the school.

Judge Friedman also dismissed the case presented by the intervening students, who testified at length about the discrimination they had experienced in inner-city high schools, white-dominated colleges, and in taking standardized tests.

''The effects of general, societal discrimination cannot constitutionally be remedied by race-conscious decision-making,'' he wrote.



Affirmative Action Policies in Education

These are the key rulings and referendums on admissions policies that take race into account:

JUNE 1978 -- United States Supreme Court hands down Bakke ruling saying race can be an element in universities' efforts to create diverse campuses.

JULY 1995 -- University of California ends use of race and sex in hiring and admissions.

MARCH 1996 -- In the Hopwood case, a federal appeals court overturns the admissions system at the University of Texas law school on grounds that its racial preferences are unconstitutional.

NOVEMBER 1996 -- California voters, in Proposition 209, ban most state-sponsored affirmative action.

MAY 1997 -- To get around the Hopwood ruling, Gov. George W. Bush of Texas signs into law a measure granting admission to the University of Texas to the top 10 percent of graduates in all state high schools.

NOVEMBER 1998 -- In a referendum, the State of Washington bars use of race and sex in, among other things, public university admissions.

NOVEMBER 1999 -- Gov. Jeb Bush of Florida issues an executive order banning racial preferences but granting admission to state colleges to the top 20 percent of high school graduates.

DECEMBER 2000 -- A federal judge in Detroit upholds racial preferences in undergraduate admissions at the University of Michigan, saying diversity on campus produces important educational benefits.