CINCINNATI Yesterday probably won”t be the last time nine federal judges in a crowded courtroom fire questions about the merits of affirmative action at attorneys for the University, the Center for Individual Rights and the intervening defendants.

Paul Wong
Two students use protest signs to keep dry while listening to the Rev. Fred Shuttlesworth speak at a rally in Fountain Square yesterday in Cincinnati, where the U.S. 6th Circuit Court of Appeals heard arguments in the two lawsuits challenging the use of r

The arguments made by each side were nearly identical to the claims made at the district court level, but with yesterday”s appeals hearing the pair of lawsuits challenging race-conscious admissions at the University moved closer to an expected date with the nine justices of the U.S. Supreme Court.

Both cases revolve around the 1978 opinion by Justice Lewis Powell in Bakke v. Regents of California, in which he stated that the use of race as a factor in college admissions is a compelling government interest.

The judges asked questions about what constitutes a critical mass, whether the University might revert to the old undergraduate admissions policies that have already been ruled unconstitutional and whether the University currently employs a dual-track admissions standard.

The judges also tried to use a hypothetical admissions system that focused on religion rather than race to better understand how admissions decisions.

“The questions reveal the crucial things on the judges” minds,” said University President Lee Bollinger. “We have laid the foundation and more for both the legal and the public discussion of these issues. After the court renders their decision in this case I predict it will go to the Supreme Court.”

The courtroom was packed with spectators in folding chairs in addition to the regular benches. The overflow crowd was directed to two rooms where the proceedings were shown on televisions. Court Clerk Leonard Green estimated there were 150 to 160 people in the actual courtroom, while an additional 150 to 200 people watched a video feed in two rooms two floors above the actual proceedings. The courtroom usually seats 50 to 60 people. “We accommodated an extra hundred people into what would have been a full boat,” Green said.

“We”ve seldom drawn a crowd like this,” Chief Judge Boyce Martin said at the opening of the hearing.

Judges first heard arguments in Gratz v. Bollinger, which challenges the use race in admissions policies in the College of Literature, Science, and the Arts.

CIR is appealing the district court”s decision last December, in which U.S. District Court Judge Patrick Duggan ruled that the University”s current admissions policies are legally sound, but the grid system that was in place to evaluate students until 1998 was not.

Grutter v. Bollinger was argued next. The University is appealing the decision by U.S. District Court Judge Bernard Friedman that the Law School”s admissions policies were not constitutional.

The court is expected to release its decision sometime next year.

David Herr, who presented CIR”s appeal in the undergraduate case, said in his opening remarks to the 6th Circuit Court of Appeals that his firm was fighting to defend the rights of “all students who were discriminated against based on race.”

CIR contended that the use of a point system in LSA admissions was merely a thinly veiled quota system.

“You don”t have to call it a quota, you don”t have to call it reserved seats. The results are identical. It functions the same way,” Herr said.

The University argued that providing students with a racially diverse educational environment is a compelling government interest and that the methods the University employs to attain that level of diversity are fully constitutional.

“All students learn much better in a diverse student body and atmosphere,” argued University lawyer John Payton, “The three things Judge Duggan took issue with, we stopped doing.”

Duggan ruled last December against the University”s use of a grid system to evaluate candidates, automatic rejection of certain applicants and use of protected seats.

Payton stressed that while the University gives 20 points on a 150-point scale to black, Hispanic and American Indian students, “academic matters count for 110 of those points.”

“We don”t seek a fixed number of spaces,” Payton argued. “Having merely token numbers of minority students simply is not adequate.”

The judges questioned all sides about what constitutes a critical mass of students.

“The answer is not a number it”s an educational reality,” Payton said. “You know when the students in your student body don”t see themselves as symbols but as members of their community.”

“We have a pool of minority applicants that is so small that it forces us to admit nearly all qualified applicants,” Payton admitted.

Ted Shaw, head counsel for the LSA intervenors, who represent the interests of minority high school students, reiterated the need for affirmative action to reverse past discrimination.

“Affirmative action didn”t spring from the soil, it didn”t materialize from thin air. It did not suddenly dawn on the University in the “60s and “70s,” Shaw said.

The University implemented affirmative action fully aware that minorities had not had the same opportunities, Shaw argued.

Herr rebutted the intervenors” claim that affirmative action was necessary to right past wrongs. “We don”t think there is a remedial claim,” he said. “The remedy for that is not more discrimination.”

“The University did not embark on affirmative action to reverse past discrimination by the University of Michigan,” Herr added.

The 70 minutes allotted to the LSA case were followed by 40 minutes of arguments in the case involving the Law School. Payton again represented the University. Kirk Kolbo represented CIR, and Miranda Massie represented the intervenors.

Judge Alice Batchelder asked Payton if plaintiff Barbara Grutter were a black woman whether she would have been accepted to the Law School.

“If Barbara Grutter were black, she would have a whole different set of life experiences, and therefore the answer would be yes,” Payton said, stressing that race stretches across socio-economic borders. “Race affects the black woman whether she is in Grosse Pointe or the inner city. You”re not immune to the effects of race just because you are in good economic circumstances or poor economic circumstances.”

Massie argued that affirmative action is necessary to remedy past discrimination as well as increase diversity on campus. She presented boxes filled with more than 50,000 signatures in support of affirmative action.

“The petitions express what is so fundamentally important about integration, they express that the majority of Americans want the law on this question to speak the truth,” Massie said in her opening statement.

“Until we reach a point where we have rough proportionality, we haven”t come far enough,” Massie said.

CIR argued that the Law School”s admissions policies, which were struck down in March by U.S. District Judge Bernard Friedman, ignore qualified white applicants in favor of minority candidates.

“What we have here is a double standard in admissions. Justice Powell did not approve of that,” Kolbo argued.

All three sides were in good spirits following the hearing.

“The court zeroed in on all the major problems with the University”s case,” said Terence Pell, director of CIR.

Pell said that although the University has made “cosmetic” changes to its admissions system, they remain unconstitutional. “They all raise the same legal issue. The University has tried to elevate form over content.

“The hearing made clear how devastating the facts are for the University,” he added.

“I”m glad to have gone through another step in the process. It”s a long process,” said Grutter, the plaintiff in the Law School case, after the hearing. “We all just have to wait for the ruling.”

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