In what marks the last step toward potential Supreme Court arguments, the University filed three briefs yesterday asking the Supreme Court not to hear either the undergraduate case or the Law School case regarding the University’s use of race in its admissions policies.
“The reason we are doing this is not to get attention, but to defend a principle,” General Counsel Marvin Krislov said. He said the fact that the University opposes the granting of cert in both cases does not lessen the University’s commitment to educational diversity.
The University is being sued by three denied applicants, Patrick Hamacher, Jennifer Gratz and Barbara Grutter, who claim they were wrongfully denied admission to the University while less qualified minority students were admitted.
The 6th Circuit Court of Appeals ruled in favor of the University in Grutter v. Bollinger, upholding the University’s Law School admissions policy last spring and has yet to rule in Gratz v. Bollinger, which brings into question the LSA admissions policies.
Since the Supreme Court has already ruled that diversity is a compelling state interest in Regents of the University of California v. Bakke and the Sixth Circuit has ruled in favor of the University’s admissions policies, Krislov said there is no need for the Supreme Court to hear the case.
“If there is a Supreme Court precedent there and vital, we don’t think the Supreme Court needs to revisit it,” Krislov said.
He said that in litigation, the goal is to win at the last level of that litigation. Every time you take litigation to a new level, there is an inherent risk he said.
“If you’ve got a sure victory, why not embrace it,” Krislov said. “We won 100 percent.”
The Center for Individual Rights, a Washington based law firm, has asked the Supreme Court to hear both cases including Gratz v. Bollinger even though the lower court has not ruled it on.
Assistant General Counsel Jonathan Alger said the plaintiffs failed to contest the educational benefits of diversity or provide evidence to the contrary.
But if the Court decides to hear one or both cases, they should be argued together in order to provide a full range of evidence, he said.
“It would reinforce the notion that diversity does have educational benefits,” he said. In terms of national importance, “it would provide more guidance to us and universities around the country,” he added.
Alger said the potential benefits resulting from a Supreme Court ruling in the University’s favor still fail to compare to the impact a decision against the University might have.
“It would be devastating if the Supreme Court were to reverse Bakke, but we don’t expect that to happen,” he said.
“Right now we’re in the circumstance where we’ve won,” President Mary Sue Coleman said in an interview earlier this month. She said she believes in the educational value of a diverse student body and firmly supports the University’s defense of its admissions policies.
“I think what we do is legal and is fair,” Coleman said.
Krislov said a Supreme Court conference date has been set for Nov. 22, but there is no guarantee whether a decision will be made within the next month.
He said the University is confident the Supreme Court will decide by the end of this year whether it will hear one, both or neither of the University’s cases.