“I am proud of the role of the University of Michigan in this important debate.”

J. Brady McCollough

– University President Mary Sue Coleman in yesterday’s campus-wide e-mail.


Psst. I have secret for just you and me.

Mary Sue Coleman and the University never wanted the Supreme Court to hear Grutter v. Bollinger and Gratz v. Bollinger. Not that you would know that from the strutting and preening that accompanied the court’s landmark decision. An Associated Press photographer caught Coleman bounding about the steps of the Supreme Court, sporting a catfish grin and basking in the vibrant blue skies of a perfect Washington morning.

The tropes most likely to appear in today’s papers if Coleman’s publicists get their way: Coleman as a modern-day Moses, the University as the New Colossus and Michigan as land of hope and glory.

All well and good, but Coleman’s pose is an intellectually dishonest one. Back in September, when the former president of the University of Iowa was just starting her tenure in Ann Arbor, when Maureen Mahoney, legal counsel brought in from Latham and Watkins, made the surprise announcement that the University would not seek to appeal its case to the nation’s highest court. “We will ask the court to deny the appeal and not to hear the case,” she blithely stated at a Sept. 18 University forum on the law suits. Instead, the University’s legal braintrust argued that you simply don’t appeal to the Supreme Court when you win at the district level. But these cases merited a different response.

A bit of context is in order. Since 1992, affirmative action programs have come under a carefully calibrated assault. The opening fusillade was launched at the University of Texas, which had its law school admissions policies struck down in Hopwood v. Texas. In Georgia, the U.S. 11th Circuit Court of Appeals struck down affirmative action in Johnson v. Board of Regents. And in Smith v. University of Washington Law School, the famously liberal 9th U.S. Circuit Court of Appeals upheld Washington’s admissions plan. With the circuits in a twist, both Texas and Washington sought an audience with the supremes, but both parties’ advances were rebuffed.

Academia was forced to size up the remaining field of contenders and Grutter and Gratz were unanimously viewed as the heavyweights with the best chances of upholding affirmative action at the Supreme Court. Georgia simply dropped its appeal and deferred to the University. With the circuit courts reaching irreconcilable conclusions on the constitutionality of affirmative action, the scene at the 6th Circuit Court of Appeals became nothing more than pre-fight sparring before the ultimate battle in Washington. If the University did not appeal, then a good portion of the country (not to mention that this portion, the South, is where the need for affirmative action is even more acute than Michigan) would have been left in limbo. Even as Coleman was stating that “the whole country has a stake in these cases,” the University had somehow hypnotized itself into believing that it could simply walk away from the appeals process.

In the weeks that followed the announcement, Coleman and her comrades in the Fleming Administration Building continued to support this policy – until the court’s Dec. 2 decision to grant certiorari made all this moot. But the University still incomprehensibly clings to the logic of its choice. When asked yesterday if the University had any regrets over this ill-conceived policy, University spokeswoman Julie Peterson responded that it continues to stand by its logic.

Yesterday was a proud day for the University. We were vindicated. All those fancy law firms and all that hard work. Students going sleepless nights riding on busses to Detroit, Cincinnati and, eventually, Washington. It all meant something, this dedication mattered and we have more than memories to tell our kids someday, their futures will be better for this decision. We went toe to toe with the U.S. solicitor general and the president, and guess who came out victorious. But there are still those memories from last fall, when the University administration was content to carve out a little duchy in Tennessee, Kentucky, Ohio and Michigan where affirmative action would be legal and let the rest of the country fend for itself. If the breast-beating triumphalism of our campus elders glimpsing in the sun has you feeling a trifle queasy today, don’t worry – you’re not alone.

Zac Peskowitz can be reached at zpeskowi@umich.edu.

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