The last of the slew of lawsuits filed by the Center for Individual Rights challenging the use of race as a factor in admissions in higher education move to the 6th Circuit Court of Appeals tomorrow, one step below the U.S. Supreme Court, which has yet to rule on the issue.

A panel of three judges on the appeals court, which has jurisdiction over Kentucky, Michigan, Ohio and Tennessee, was originally scheduled to hear the cases in October, but the hearing was delayed when the court accepted a request by CIR to have the cases heard by the full court.

Buses of University and high school students who planned to journey to Cincinnati to rally in support of affirmative action also had to postpone their plans.

Jessica Curtin, a member of the Coalition to Defend Affirmative Action and Integration and Fight for Equality By Any Means Necessary, one of the most vocal opponents of the lawsuits, said thousands of protesters from more than a dozen universities in the court”s jurisdiction are expected to come together in Cincinnati to rally and march in support of affirmative action before tomorrow”s 1:30 p.m. hearing.

“This is going to be a real turning-point day,” Curtin said. “We”ve got to go all out in Cincinnati.”

Curtin added that a petition with 40,000 signatures that have been collected from around the country in support of affirmative action will be presented to the judges.

Case histories

CIR filed two lawsuits against the University of Michigan in 1997. It also sued against the University of Texas in 1994 and the University of Washington in 1997.

The first case against Michigan, Gratz v. Bollinger, was brought before the University”s College of Literature, Science and the Arts in February 1997 on behalf of two white applicants, Jennifer Gratz and Patrick Hamacher, who claim they were denied admission to Michigan”s largest undergraduate school while less qualified minority applicants were accepted.

Grutter v. Bollinger concerns the University Law School”s admissions process. It argues that a white applicant, Barbara Grutter, was denied admission, yet minority applicants who did not have the same qualifications were accepted.

In both cases, intervenors have added a third angle. Representing the interests of minority high school students applying to the University, the intervenors are from several groups, including the American Civil Liberties Union and the Mexican American Legal Defense and Educational Fund. They argued in support of the University”s admissions policies but did not join the University”s case because their reasons for supporting affirmative action differ.

The intervenors believe race should be used to remedy past wrongs. The University only maintains that racial diversity enhances the learning experience of all students, and taking race into account when considering applicants is a viable means of ensuring diversity in the student body.

After numerous delays, both cases were heard at the district court level, Gratz in November 2000 and Grutter in January and February this year.

Both CIR and the University claimed victory in December 2000 when U.S. District Judge Patrick Duggan ruled that the use of race in admissions was constitutional but struck down LSA”s former grid system of evaluating candidates. Duggan did not uphold the intervenors” claim that using race as a factor in admissions is necessary to make up for past discrimination.

CIR is appealing Duggan”s ruling that race-conscious admissions policies to achieve a diverse student body is constitutional. The University is appealing the Duggan”s ruling that its grid system was unconstitutional. The intervenors are appealing the judge”s dismissal of their reasoning for affirmative action.

In March, the University suffered “a total loss” when U.S. District Judge Bernard Friedman ruled that the Law School”s admissions policies were unconstitutional. The University and the intervenors are both appealing that decision.

Three sides

University Deputy General Counsel Liz Barry said she is confident in the processes used for admissions to the University and hopes the court will understand the necessity of affirmative action at the university level.

“The central issue is whether universities are going to be permitted to take race into account as far as educational ability,” she said. “Michigan has made the best case for that argument.”

Patricia Mendoza, a spokeswoman for the Mexican American Legal Defense and Educational Fund, one of the groups intervening in the case, said she wants to ensure that the use of race in admissions benefits future minority students who apply to the University.

“In the undergraduate case, the court found that the program currently in place is valid. We support that that piece of the University”s case be upheld,” she said. “Our piece of the case is that the judge basically struck down our remedial argument.”

Curt Levey, director of public and legal affairs for CIR, stressed that this case is not about the morality of affirmative action but about its use in University admissions.

“We”re not against affirmative action. That word is tossed around a lot, but that word means a lot more than racial preferences,” Levey said. “We are against a practicing form of affirmative action which is explicitly promotes practices such as colleges awarding 20 points for skin color.”

Levey said he does not believe affirmative action effectively promotes a racially diverse campus.

“You”re not really getting a diverse student body. You”re getting a superficial diversity of skin colors, but for the most part, you”re getting upper-middle class students. You”re getting the son of Colin Powell, not an inner-city kid,” he said.

Previous cases

The split decisions in the Michigan cases at the district court level reflect numerous rulings and movements across the country.

All the cases revolve around 1978″s Bakke v. California, which found that the use of quotas to achieve diversity was unconstitutional. Justice Lewis Powell wrote in his opinion that using race as one of many factors to attain diversity is a compelling state interest.

In Hopwood v. Texas, the 5th Circuit Court of Appeals ruled in 1996 that the University of Texas” admissions policies were unconstitutional as the result of a CIR lawsuit. The U.S. Supreme Court refused to hear the case, and Texas officially dropped its defense of the suit last week.

In Smith v. Washington, again backed by CIR, the 9th Circuit Court of Appeals ruled that the University of Washington could use race as one of many factors in determining admission. But Initiative 200, a 1998 voter-approved ban of affirmative action in higher education statewide prevented the ruling from having any effect on the university. The Supreme Court refused to hear the case.

In 1995, the University of California Board of Regents banned the use of affirmative action in the UC system. They rescinded the decision this summer, a largely symbolic move UC still cannot use race as a factor in admissions because of Proposition 209, a 1996 voter initiative similar to the one in Washington.

A case challenging the University of Georgia”s admissions policies, which was not brought about by CIR, was decided in the 11th Circuit Court of Appeals this summer. The court ruled that the University of Georgia”s admissions policy was unconstitutional, but it did not rule that affirmative action itself was illegal.

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