A federal appeals court last week narrowly upheld the use of affirmative actionin admissions at the University of Michigan Law School, potentially settingthe stage for the Supreme Court to weigh in on the controversial practice forthe first time in more than two decades.
Although it is very difficult to predict whether the Supreme Court will takea particular case, legal analysts say that last week’#146;s decision, by a bitterlydivided U.S. Court of Appeals for the Sixth Circuit, is a strong candidate forreview by the high court, probably next year. The decision conflicts with therulings of two other federal appeals courts.
In last week’#146;s decision, the Sixth Circuit held, 5 to 4, that the Michiganlaw school’#146;s admissions policy is permitted under the U.S. Constitutionbecause the school needs such a policy to maintain an educationally diverselearning environment.
The ruling overturned a lower-court decision that the law school, on Michigan’#146;sAnn Arbor campus, illegally discriminated against white applicants.
The Sixth Circuit said it was not yet ready to rule on a separate lawsuit involvingundergraduate admissions policies at the University of Michigan. Because thosepolicies differ substantially from the law school’#146;s, and are much morerigid and formulaic in giving advantages to minority applicants, many legalexperts believe that the Sixth Circuit might rule against Michigan in the undergraduatecase.
Although University of Michigan officials and advocates of affirmative actionhailed last week’#146;s ruling by the Sixth Circuit as a major victory, theyreadily acknowledged that the debate over the practice in college admissionshad hardly been settled.
Lawyers for the plaintiff, an applicant rejected by Michigan’#146;s law schoolin 1997, almost immediately announced plans to appeal to the Supreme Court,and lawyers for all sides described the case as good one for the high courtto take up, because it so starkly frames the key points of contention betweencritics and defenders of race-conscious admissions.
‘I think almost everybody agrees that it is time for the Supreme Courtto clarify this area of the law,’ said Terence J. Pell, chief executiveofficer of the Center for Individual Rights, an advocacy group that has helpedrepresent the plaintiffs in the Michigan law case and in other challenges tocolleges’#146; affirmative-action policies.
‘The deep divisions in the Sixth Circuit-and the animosity between itsmajority and minority-are symptomatic of a complete breakdown of this area ofthe law,’ Mr. Pell said. ‘Questions are being raised that relianceon legal precedent just can’#146;t answer.’
Roger B. Clegg, a lawyer for the Center for Equal Opportunity, an organizationthat opposes affirmative action, predicted that last week’#146;s ruling alsomight eventually force the Bush administration to take a stand on the issueof affirmative action in college admissions.
‘When this case goes to the Supreme Court, it will put the Bush administrationon the spot,’ Mr. Clegg said. ‘There is going to be a lot of pressurefrom the people who support racial and ethnic preferences and the people whooppose racial and ethnic preferences for the Justice Department to file a [friend-of-the-court]brief. It will be awkward if the administration does not file a brief at all.’
The White House spokesman, Ari Fleischer, told reporters last week that theJustice Department will review the Sixth Circuit’#146;s decision.
Asked for the president’#146;s views on affirmative action in college admissions,Mr. Fleischer said that Mr. Bush opposes quotas and believes in ‘affirmativeaccess,’ which, he said, ‘encourages and increases diversity on campusbased on merit.’ As an example of ‘affirmative access,’ he citeda Texas law, signed in 1997 by Mr. Bush, then the state’#146;s governor, thatguarantees admission to a state university to Texas high-school students whograduate in the top ten percent of their class.
