2 similar cases result in 2 different rulings

BY ANNA CLARK
Daily Staff Reporter
Published March 28, 2001

Judges have handed down two strikingly different decisions in the two nearly identical lawsuits challenging race-sensitive admissions in the University"s Law School and the College of Literature, Science and the Arts, sparking questions as to what"s next for both cases including the possibility of combining them as they head for appeals.

U.S. District Judge Bernard Friedman, who ruled against the Law School"s admission policy yesterday, fundamentally disagreed with U.S. District Judge Patrick Duggan"s decision in the LSA case.

In a summary judgment for the LSA lawsuit, Duggan upheld the University"s claims that diversity is a compelling government interest. Friedman maintained that it is not.

Although Friedman agreed with Duggan that racial diversity on college campuses enhances education for all students, he wrote in his opinion that diversity can only be attained through race-neutral means. Both decisions used the 1978 Supreme Court case University of California Regents v. Bakke to justify their opposing positions.

The Bakke case is considered the standard for affirmative action policies nationwide. It outlawed racial quotas, but Justice Lewis Powell, speaking only for himself, said race could be considered as one of many factors in admissions and hiring decisions to achieve diversity.

Duggan based his decision on this rationale, and wrote in his opinion that the LSA"s current admissions system considers race as one of many factors in its applicants. Friedman, interpreting Bakke differently, concluded that Powell"s opinion did not represent the other justices and is therefore not a part of the court"s ultimate decision.

University Provost Nancy Cantor said Friedman"s choice to depart from what she sees as legal precedent is significant.

"It looks as if Friedman is really reaching out to change the law," she said. "I believe that Friedman has really misread the Bakke decision. No Supreme Court decision has said that diversity cannot be a compelling interest. We believe our policy is fully compliant with the law."

University Regent Kathy White (D-Ann Arbor) agreed with Cantor. "I was very surprised with this decision," White said. "Judge Friedman based his decision wholly on legal issues that are inconsistent with the Supreme Court."

Curt Levey, director of legal and public affairs for the Center of Individual Rights, the Washington D.C.-based firm challenging the University in both cases, said the two decisions demonstrate how the ambiguity of the Bakke decision causes seemingly inconsistent rulings.

"But in my opinion, Friedman got it right and Duggan got it wrong," he added.

Despite the contrasting opinions, it is possible the two cases will be combined as they head towards the 6th Circuit Court of Appeals.

One of the three parties in the cases must move for consolidation before the appeals court considers it, Levey said, adding that the CIR has not yet had a chance to consider whether or not consolidation would be in their favor.

Miranda Massie, lead attorney for the student intervenors, said the chance of combining the cases is good. "There actually might be a better chance for the cases to consolidate since they have decisions that are in such sharp contrast," Massie said. "Somebody has to have the final word as to whether or not diversity is a compelling state interest."

But as CIR continues its effort to eradicate affirmative action policies, the contrasting opinions could have an impact beyond the University.

Lead CIR attorney Kirk Kolbo said he thinks other courts will not only look at both opinions, and note that Duggan"s decision was based solely on pre-trial evidence.

"What"s especially gratifying about this decision is that it comes after a full blown trial and after hearing powerful evidence," Kolbo said yesterday. "I think it just adds to the momentum of eliminating affirmative action that relies on discrimination."

But Kolbo added that CIR isn"t planning on initiating any more lawsuits while the University cases are still in appeals.

"We have our hands full," Kolbo said. "We want to see these cases on to the end."