Lawsuit may reach high court

By Jeffrey Kosseff
Daily Staff Reporter

The lawsuit filed Tuesday against the University claiming that undergraduate admissions policies blatantly discriminate by race has the potential of setting precedent in the U.S. Supreme Court, some legal experts say.

The Center for Individual Rights, the same law firm that won the groundbreaking Hopwood affirmative action case in the 5th Circuit Court of Appeals last year, filed a class-action lawsuit against the University, the College of Literature, Science and Arts, University President Lee Bollinger and former President James Duderstadt. The suit claims that race is a deciding factor in admissions.

The last Supreme Court case that ruled on affirmative action in higher education was Bakke vs. University of California in 1978.

"It seems clear to me that the court will have a case before it to clarify Bakke," said University of Alabama Law Prof. Bryan Fair, who recently wrote a book supporting affirmative action. "It seems unavoidable. The litigation is mounting."

Opponents of affirmative action agree that the Supreme Court must hear a case involving affirmative action in admissions to colleges and universities.

"I don't normally think we need to have one solid ruling for everything across the board," said David Boaz, executive vice president of the Cato Institute, a conservative think tank. "But in these circumstances, there are fundamental rights being violated."

William Allen, former chair of the U.S. Commission on Civil Rights and a law professor at Michigan State University, said there are currently no guidelines set by the Supreme Court regarding affirmative action in admissions.

"Bakke does not answer the questions of affirmative action that current lawsuits produce," Allen said.

In the Bakke ruling, Justice Lewis Powell wrote that admissions policies that use racial quotas are unconstitutional, but universities may use race as one of many factors to determine admission if it rectifies past discrimination. Those are not specific guidelines, Allen contends, but only Powell's opinion.

"There is a need for the Supreme Court to set concrete guidelines," Allen said, adding that lawsuits such as the one against the University would not occur once the Supreme Court rules definitively on the issue.

Fair, however, said Bakke effectively outlines legal and illegal affirmative action programs.

"If the nation embraced the Bakke standard, then we could move forward," Fair said. "The ruling simply says that there is nothing unconstitutional about valuing diversity."

The case filed against the University, in addition to a similar suit filed against the University of Washington by CIR about four months ago, will increase the chance for a Supreme Court ruling on race-based admissions, especially if the suits have different outcomes in federal court and the court of appeals.

"When you get differing opinions, it becomes increasingly likely the Supreme Court will step in," Allen said.

The University's size, academic reputation and admissions policies make it a prime target for a lawsuit challenging affirmative action, Allen said.

"The University is ripe for a lawsuit," Allen said.

Wayne State University constitutional law Prof. Robert Sedler said that while the Supreme Court "grants review to a small number of cases," there is a chance the high court would hear the University's case.

Once the U.S. District Court in Detroit makes a ruling, the losing side will likely appeal to the 6th Circuit Court of Appeals, Sedler said, because the federal court ruling would only apply to the University.

The hypothetical Circuit Court of Appeals decision, Sedler said, would apply to the 5th Circuit, which includes Michigan, Ohio, Kentucky and Tennessee. If the Circuit Court of Appeals rules against affirmative action, he said, the case would likely be heard by the Supreme Court.

"If the Court of Appeals were to rule that race cannot be used at all, then it becomes a big deal," Sedler said. "Then the Supreme Court has a better chance to review it."

If the case reaches the Supreme Court, Fair predicts that the ruling would be split.

Of the nine judges, Fair said, three justices are adamantly opposed to racial classifications, while four support affirmative action in order to achieve diversity. The two remaining justices, Sandra Day O'Connor and Anthony Kennedy, have mixed views on affirmative action and will be the deciding votes, Fair said.

"I'm watching to see what O'Connor and Kennedy do," Fair said. "To prevail, one has to gain the votes of one of those two."

The Supreme Court denied review of the Hopwood case, which ruled that the University of Texas Law School's use of race-based admissions was unconstitutional. Some legal experts say that decision foreshadowed a future ruling.

"It has spoken somewhat to the issue by denying review of the Hopwood case," said Pepperdine Law Prof. Douglas Kmeic. "It was an indication that the court is suspicious of non-remedial uses of affirmative action."

University Law School Dean Jeffrey Lehman said that because the rulings of Hopwood and Bakke contradict each other, the Supreme Court eventually will hear a case on affirmative action in higher education.

"It is likely that at some point the Supreme Court will take another case regarding the pursuit of diversity in higher education," Lehman said. "They will have to resolve the tension. Whether the suit against the U of M will be the vehicle, it is too early to say."

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