By Katie Plona and Peter Romer-FriedmanDaily Staff Reporters
Daily Staff Reporters
In the coming months, the eyes of lawyers, legislators and educators across the nation will focus on two lawsuits that challenge the use of race in the UniversityÕs admissions policies. If either lawsuit reaches the U.S. Supreme Court, it would mark the first high court decision on affirmative action in higher education in more than 20 years.
This potentially policy-changing case began when the Center for Individual Rights filed a class-action lawsuit against the College of Literature, Science and the Arts this past October on behalf of white applicants Jennifer Gratz and Patrick Hamacher, who claim they were denied admission to LSA because of their race. CIR filed a second suit in November against the University's Law School claiming that Barbara Grutter was rejected for the same reason.
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| MARGARET MYERS/Daily Members of the Coalition to Defend Affirmative Action By Any Means Necessary protest a hearing held last September by state Sen. David Jaye (R-Macomb) and state Rep. Greg Kaza (R-Bloomfield Hills), two of the four legislators who spearheaded the lawsuit challenging LSA admissions policies. |
Setting the stage for affirmative action
History Prof. Nicholas Steneck, editor of "The Making of the University of Michigan", a definitive University history book written by Howard Peckham, said that since before the turn of the century, the University has aimed to create a diverse student body. The first black student came to the University in 1868.
"The University, always as a public university in one way or another, has been committed to diversity," Steneck said. "We're a big place and we've served a lot of people."
In former University President James Angell's 1879 commencement address, titled "The Higher Education: A Plea for Making It Accessible to All," Angell stressed the importance of creating educational opportunities for all students - regardless of their race, gender or socio-economic status.
"The most democratic atmosphere in the world is that of the college. There all meet on absolutely equal terms," Angell said. "Nowhere else do the accidents of birth or condition count for so little."
Provost Nancy Cantor has referred to Angell's address in her own speeches, citing it as evidence of the University's continuing commitment to combining diversity and education.
"I think it's just a terrific example of a long-standing legacy here," Cantor said. "The real significance is to remind us not to get tunnel vision for the modern era."
Although affirmative action programs were not started until the '60s, years of court battles throughout the 20th century have focused on eliminating legal discrimination.
In the '50s, the U.S. Supreme Court did not permit the "separate but equal" doctrine of Plessy v. Ferguson , established in 1896, to set the legal precedent. In two cases - Sweatt v. Painter and Brown v. Board of Education - the court issued mandates to desegregate public education.
As the early civil rights movement got underway, the nation moved one step closer to equality when the Supreme Court decided that separate was not equal in the 1954 Brown verdict, which banned segregation in all public schools.
"People didn't think more in terms of affirmative action, but more in segregation and discrimination," said John Norton, a political science professor at Lebanon Valley College in Annville, Penn., who specializes in affirmative action topics.
The Civil Rights Movement
While the '50s saw the end of legal segregation, the '60s brought forth a nationwide Civil Rights Movement that resulted in executive orders and Congressional acts that set the stage for affirmative action. The work of the federal government, coupled with student activism across the country, brought race into the national spotlight.
"President Kennedy was the first one to use the phrase affirmative action," said history Prof. Sidney Fine. "That's the first time it appeared."
Fine, who began teaching at the University in 1948, said University students sparked important changes that swept through the entire nation.
"Our students, including a lot of white college students, did go south to secure voting rights," Fine said. "In one of the freedom rides, one of the captains was a U of M student."
Congress began drafting legislation to increase the rights of minorities with the Civil Rights Act of 1964. One year later, the Voting Rights Act made it easier for black voters to exercise their constitutional right.
In addition to these civil rights advancements, Johnson issued an executive order in 1965 that required federal contractors to "take affirmative action" in hiring practices.
Garry Hays, president of the United States International University in San Diego, said that although affirmative action originated in the 1960s, the practice was expanded during the '70s.
"It was in the mid '70s that we required every school to set goals and timetables to bring more women and minorities into the universities," Hays said.
One year after former President Richard Nixon announced a plan to set up goals and timetables to achieve diversity in the workplace, students and faculty at the University started the Black Action Movement of 1970 to convince University administrators to increase the number of minorities at the University and improve their resources on campus, said Residential College Director Tom Weisskopf.
Weisskopf said the momentum that BAM gained on campus during the late '60s and early '70s marked the push for affirmative action at the University and followed a national wave of activism to make educational opportunities more inclusive.
"That was kind of the first major step to increase diversity on campus," Weisskopf said.
BAM led a series of campuswide strikes in which students of all races participated, Fine said.
"The strikers urged the students not to go (to class), and students did not go," Fine said. "I taught my own class, and I had massive attendance until I was shouted down. There was a huge picket line outside."
Psychology Prof. Peter Weston, who was a graduate student and activist during the BAM movements, said the movement was the culmination of major national events, including the 1968 assassinations of the Rev. Dr. Martin Luther King, Jr. and Attorney General Bobby Kennedy, the Vietnam war and a rising concern about racial issues.
"I think '68 was the defining year," Weston said. "After 1968, the attention of the country shifted to the plight of black Americans, especially. After '68, the country began to say, 'there's really something very wrong here in terms of civil injustice.'"
BAM and activism on campus
After BAM I, the University and the nation began to take greater steps toward achieving equality by offering minorities scholarships and actively recruiting minority students. The activism produced clear and definite results by allowing more minority students, according to Peckham's book, to attend the University, said John Matlock, assistant vice provost and director of the Office of Academic and Multicultural Initiatives.
"I certainly was a beneficiary of BAM I because it was those students who put the issue on the burner, in pushing to have more African American students and faculty on campus," said Matlock, a University alumnus.
"The University made a commitment to do that and I was a beneficiary to come here," Matlock said. "I'm not sure if I would have had that opportunity if BAM hadn't put the issues on the table."
In 1969, the U.S. Department of Health, Education and Welfare accused the University of discriminating against minorities in its hiring practices and demanded that the University develop an affirmative action program, Peckham's book said.
The University responded with a number of measures, including hiring Nellie Varner to direct its new Affirmative Action Programs. Varner later served on the University's Board of Regents.
But in 1978, the Supreme Court decision in Bakke v. The University of California at Davis Medical School sent shockwaves across institutions of higher education, declaring that the University of California Medical School at Davis' use of racial quotas violated the 14th Amendment, a provision in the California State Constitution and Title VI of the Civil Rights Act of 1964.
Much like the complaints of the plaintiffs in the two pending lawsuits against the University, Alan Bakke's lawyers argued that UC-Davis' admissions policies had discriminated against him on the basis of race.
The court's ruling was split 4-4-1 and therefore did not set legal precedent. Justice Lewis Powell's single opinion was used as a compromise between both sides, stating that race may be used as only as one of many factors to compensate for past discrimination.
Although Bakke posed a challenge to affirmative action programs, it did not end the fight for diversity, Hays said.
"Affirmative action continued to thrive after Bakke," Hays said. "Universities have continued to take into consideration various factors including race. Bakke didn't preclude it. (Bakke) addressed how, in some cases, we could go about remedying the past."
Several years after the Bakke opinion, activism at the University resurged, forming a third BAM. By 1985, minority enrollment had tapered off after years of rising and a new wave of campus activism began, Peckham's book reported.
Weisskopf said racial problems at the University received national attention, eventually drawing the Rev. Jesse Jackson to campus to mediate conflicts between BAM activists and then-University President Harold Shapiro. After much discussion, the University adopted the Six-Point Plan, which promoted a wide-scale effort to once again increase diversity on campus.
This plan eventually grew into the Michigan Mandate, which was established in 1987 as a part of former University President James Duderstadt's vision.
Duderstadt said the University significantly increased the number of minority students and faculty through this initiative.
"Minority enrollment doubled, graduation rates for minorities doubled, minority faculty representation doubled," Duderstadt said. "It was successful beyond our wildest dreams."
The courts and legislatures look closer
Despite the expansion of affirmative action programs within higher education, the Supreme Court has not accepted any cases since Bakke regarding the use of race as a factor in the admissions process.
But recently, a circuit court ruling in Texas and a voter referendum in California have eliminated the use of affirmative action in admissions in the states' universities.
In the same vein as Bakke, Hopwood v. the state of Texas brought the use of race in admissions process into the spotlight by eliminating the University of Texas Law School's use of race as a factor in admissions.
The Hopwood appellate court ruling bans the use of race as a factor in admissions to public universities in Texas, Louisiana, Arkansas and Mississippi.
"Texas had two separate categories for blacks and whites," said Fine, who defended the University's admissions policies. "We've made race a factor, but not the factor. My guess is that (one of the lawsuits filed against the University) will go to the Supreme Court."
In a 1996 election, California voters adopted Proposition 209, which bans the use of race in all state programs including state university and hiring practices. That vote complemented a University of California Board of Regents decision in the previous year to ban affirmative action in university admissions procedures.
The Future of Affirmative Action
With the latest outcomes in Texas and California, scholars contend that affirmative action is on a downfall, pointing to the University's lawsuit as the final precedent that may eliminate affirmative action altogether.
"If it gets to the Supreme Court, I think Michigan's policy is very vulnerable to be struck down as unconstitutional," Norton said.
Hays, who has observed a decrease in the number of minorities in the California state school system since Proposition 209, said people are too dedicated to diversity to let a Supreme Court ruling resegregate schools.
"My guess is if the decision is against Michigan, they will find other ways to address inequities," Hays said. "There are a lot of people in leadership positions who will not roll over and give up."
Although it would take years before either of the lawsuits against the University could reach the Supreme Court, speculation as to how the court's nine justices may view the case are already circulating throughout academia.
"You have essentially three blocks, a conservative block led by (Chief Justice William) Renquist, a middle block led by (Justice Sandra Day) O'Connor and the more recent liberals like (Justice Ruth Bader) Ginsburg," Norton said. "I think the person to watch is Sandra Day O'Connor. She is very influential in that middle block."
Fine said the Supreme Court's decision not to take on the Hopwood case in 1996 was a clear indication that it might overturn the Bakke ruling if a University suit goes to the top.
"In not picking up (Hopwood) it cast some doubt on how it was going to stand on Bakke," Fine said. "In rejecting it, they raised the question as to whether Bakke was still valid."
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| AP PHOTO Jennifer Gratz, one of two students challenging the admissions policies of the School of Literature, Science and the Arts in a lawsuit, speaks with her lawyer, Terry Pell. |
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