Rejecting the University”s defense of its affirmative action policies, U.S. District Judge Bernard Friedman struck down the Law School”s use of race as a factor in admissions, declaring that student diversity is not a compelling state interest.
Friedman also refuted the arguments of student intervenors in the case, ruling further that a race conscious admissions system cannot be used to remedy past discrimination, nor “level the playing field” between minority and non-minority applicants.
Law School Dean Jeffrey Lehman, in a telephone interview from Berkeley, Calif., expressed great disappointment over the decision.
“This is not only a rejection of the University”s arguments, but a rejection of two decades of settled understanding within higher education,” Lehman said.
The crux of Friedman”s decision is his interpretation of the 1978 U.S. Supreme Court decision, University of California Regents vs. Bakke. Racial quotas were outlawed in the case, but Justice Lewis Powell, writing only for himself, endorsed the use of race as a “plus factor” to achieve racial diversity.
But since no other justices joined Powell on this particular point, Friedman said, Powell”s opinion cannot be interpreted as the controlling opinion in the case.
Kirk Kolbo, lead counsel for the Center for Individual Rights, the Washington D.C.-based firm representing plaintiff Barbara Grutter, said he expects to see the decision influence other cases.
We think it”s a very powerfully reasoned opinion,” Kolbo said. “I expect many other courts across the nation will look at it.”
University President Lee Bollinger noted the sharp contrast between Friedman”s decision and that of U.S. District Judge Patrick Duggan in the nearly identical suit filed against the College of Literature, Science and the Arts.
In December, Duggan ruled that LSA”s current admissions policy is legal but that the “grid system” used from 1995 to 1998 was unconstitutional.
“This is a district court holding that the opinions of Justice Powell, which higher education has relied on for 23 years, was not and is not good constitutional law,” Bollinger said in a telephone interview from San Diego.
“Judge Duggan held precisely the contrary as has the 9th Circuit. We believe those courts are right, that higher education is right, that President Ford, General Motors, associated corporations and Colin Powell were also right,” he said, referring to the numerous public statements of support solicited by the University.
Friedman excused Bollinger, Lehman and former Law School Director of Admissions Dennis Shields as defendants in the case because they had “attempted to comply with Bakke as they interpreted the decision, while still striving to fulfill their admissions goals.”
Although Friedman agreed diversity is a “laudable” educational goal, he said the Law School”s system fails to achieve diversity in a way that is fair to all applicants.
The Law School”s consistent enrollment of 10 percent to 17 percent underrepresented minorities in each class since the 1992 adoption of the disputed admissions policy constitutes an unspoken quota, Friedman said.
“The fact of the matter is that approximately 10 percent of each entering class is effectively reserved for members of particular races, and those seats are insulated from competition,” he wrote.
Bollinger and other University officials disagreed strongly with this part of the decision.
“A quota is a policy of taking a certain number of students regardless of their qualifications,” Bollinger said. “We”ve made it clear that the Law School takes race into account only as a factor in a pool of students that are clearly capable of doing the work and graduating and that means it can vary in number from year to year as it has.”
In making his decision, Friedman credited retired University of Minnesota Prof. Kinley Larntz, the Center for Individual Rights” statistician, with providing “mathematically irrefutable proof that race is indeed an enormously important factor.”
In a comparison of minority and non-minority applicants with similar undergraduate grade point averages and Law School Admissions Test scores, Larntz calculated the relative odds of acceptance are greater for underrepresented minorities.
Curt Levey, CIR director of legal and public affairs, said the firm is “deeply gratified by the decision.”
“It went even further than we hoped for by ruling not just that this kind of diversity is not a compelling governmental interest but even if it were, the University”s policy would still be illegal because they haven”t bothered to consider less discriminatory practices,” Levey said.
Miranda Massie, lead attorney for the student interveners, said Friedman”s decision is not supported by the testimony he heard.
“This opinion could have been ghost-written by CIR,” she said. “The judge only engaged with the evidence enough to distort and to graft onto it what was clearly a preconceived, highly ideological opposition to affirmative action.”
In the opinion, Friedman recognized the “tragic” history of racial discrimination in the U.S., as well as its lingering societal affects, but suggested it is not the Law School”s place to remedy this.
While Friedman recognized the threat of a dramatic drop in underrepresented minorities on campus if race-sensitive admissions are eliminated, he expressed hope that this would not happen.
“If undesirable consequences are likely or even certain to occur, the answer is not to retain the unconstitutional racial classification but to search for lawful solutions, ones that treat all people equally and do not use race as a factor,” Friedman wrote.
Friedman offered alternatives to race-conscious admissions to encourage similar diversity, such as the relaxation or elimination of LSAT scores and GPA”s in admission decisions which the intervenors argued are biased toward non-minority applicants. He also suggested reducing the preference given to applicants who are related to University alumni.
But Lehman argued that it was demonstrated in the trial that “the ideas that Judge Friedman mentions in his opinion have been tried in California and have failed.”
Affirmative action was outlawed in California through the passing of voter initiative Proposition 209 in 1996. Affirmative action advocates have often pointed to California to show the negative effects of eliminating race-conscious programs.
At a rally held yesterday outside the Michigan Union, members of the student intervention and the Coalition to Defend Affirmative Action By Any Means Necessary, protested the decision and denounced Friedman as a “segregationist, Jim Crow judge.”
“Students on this campus are outraged by this decision and we will not accept it,” said LSA sophomore and intervenor Agnes Aleobua.
University Deputy General Counsel Liz Barry said the Law School plans to file an appeal with the 6th Circuit Court of Appeals in Cincinnati as soon as possible.
Massie said the intervenors will also move forward with an appeal.
In the meantime, the Law School will also file for a stay, which would allow the school to continue with its current admissions policy throughout the appeals process.
“We as a society have given up too many times, too early on issues of race in America,” Bollinger said. “Now is not the time to give up.”
Levey said CIR will be prepared to take the case to the next level.
“I wouldn”t have expected anything less,” he said. “This was really