'U' lawsuit may not be affected

By Janet Adamy
and Jeffrey Kosseff
Daily Staff Reporters

While many legal experts say the U.S. Supreme Court's refusal to hear a case challenging California's Proposition 209 will not affect the lawsuit challenging the University's admissions policies, some contend the decision is a breakthrough in the case against affirmative action.

While the case against the University questions the legality of policies developed by the University's Board of Regents, which is autonomous from the state.

Bollinger

"It has no impact," Sedler said. "The state of California has made a policy decision to prohibit affirmative action. There's no relationship at all."

But State Rep. David Jaye (R-Macomb) called the decision a "tremendous constitutional victory."

"The U.S. Supreme Court has just removed the biggest obstacle to getting rid of affirmative action procedures at the University of Michigan," Jaye said. "This means that the case does not have enough constitutional merit."

Jaye recently proposed a joint resolution similar to Proposition 209. If it is passed by the legislature, Michigan citizens would vote on the bill through a referendum, which would eliminate the use of all race and gender-based preferences in the public and private sectors.

Jaye said the Court's refusal to hear the case against Proposition 209 gives a "boost" to his legislation.

Some legal scholars argue that yesterday's decision will support the case against the University's affirmative action policies.

Frederick Lynch, a government professor at Claremont College in California and author of a book attacking the University's affirmative action programs, said that due to the Supreme Court's refusal to hear the Hopwood case last year, the 5th Circuit's ruling against minority preferences in higher education stands in Texas, Louisiana and Arkansas.

Therefore, California and the 5th Circuit are two "laboratories" that will test a system that does not permit race-based admissions, Lynch said.

"It's a major step forward in the case against affirmative action in Michigan," Lynch said. "There will be two areas in which we could see how diversity is achieved without racial preferences. It has definite implications."

Terry Pell, legal council for the Center for Individual Rights, said that while the decision won't have any direct legal effect on the lawsuit against the University, it lends support to the fight against affirmative action.

"It helps make clear that the argument against racial preferences is a mainstream view, not a fringe one," Pell said.

Law Dean Jeffrey Lehman said the decision does not reflect the Supreme Court's beliefs about affirmative action.

"All this says is that the Supreme Court doesn't think this is a good case for them to get into," Lehman said.

John Pickering, senior partner in Wilmer, Cutler and Pickering, the Washington, D.C.-based lawfirm representing the University in the suit, would not comment on the effects of the decision on the lawsuit, but he said the high court's overall stance on affirmative action has evolved in recent years.

"The court over the last few years has retreated from it's stance on affirmative action," Pickering said. "What the future holds, I don't know."

The refusal may indicate that the Court is waiting to hear a case on affirmative action that deals with more specific facts, some legal experts say.

"It implies that they are looking for a narrower case to rule on affirmative action," said William Allen, former chair of the U.S. Civil Rights Commission. "It also implies that it is legitimate for the 9th Circuit to uphold affirmative action."

Jeffrey Cuthbertson, president of Students for Equality, said the decision is a positive step in the fight to end racial preferences.

"The Supreme Court didn't see a viable constitutional challenge to the referendum," Cuthbertson said. "The Court did the right thing in not engaging in the particular case."

LSA senior Alexander Martinez said the decision upsets him because it will hinder the pursuits of those fighting to defend affirmative action.

"People from here might want to use that as a precedent to get the University's lawsuit to go a certain way," Martinez said.

11-04-97