Appeals Court Hears University of Michigan Affirmative Action Case

The University of Michigan went before the Sixth Court of Appeals in Cincinnati Thursday, a move that may mark the last stand of affirmative action in America.

At one level, the case was about the school's policy of giving more weight to applications from minority students than from white students in its undergraduate and law school admissions. But at another level, the closely watched case may change the way American institutions handle race.

Advocates of allowing colleges and universities to consider race in admissions say it "levels the playing field" and gives minority students an opportunity for higher education that they might not otherwise receive.

Critics say affirmative action is in itself a form of racial discrimination and ultimately hurts minorities who want to be taken seriously as classmates and colleagues.

It could be weeks or months before a ruling comes from the appeals court, which covers Michigan, Ohio, Kentucky and Tennessee. Whichever way the ruling goes, the case could be appealed again to the U.S. Supreme Court.

The Michigan case is one of a handful of surviving affirmative action cases that legal experts believe could make it to the Supreme Court.

It has been highlighted in political periodicals, including the libertarian Reason magazine's Web site, which points to a Washington Post/Harvard University/Kaiser Family Foundation study that found 86 percent of blacks don't believe race or ethnicity should be a factor in hiring, promoting or admitting potential employees or students.

The case, actually two conjoined lawsuits, was heard before the panel of appellate judges — seven white and two black. A three-judge panel of the court was to have heard the disputes Oct. 23, but agreed to bypass that usual first step for the issue to quickly go before the full court.

One of the original Michigan suits was brought by Jennifer Gratz and Patrick Hamacher, who were rejected for admission to the University of Michigan College of Literature, Science and the Arts in 1995 and 1997, respectively.

The second case involves Barbara Grutter, who had applied to the University of Michigan Law School in 1997 and was turned down.

The University of Michigan is a state-run school and among the most highly competitive educational institutions in the country.

Gratz, Hamacher and Grutter, all white, argued they were denied a place at the university because the school's affirmative action policies awarded their spots to less-qualified minority applicants. This, they said, amounted to racial discrimination by the university.

"The remedy for that is not having more discrimination — discrimination in the admissions office," plaintiffs' attorney David Herr told the court during two hours of oral arguments.

The university argued it had a right, both according to the Constitution and civil-rights precedents, to use race as a factor in selecting its students because a more ethnically diverse university leads to a better educational atmosphere.

"In order to achieve that broad diversity, we need to take ethnicity and race into account," the school's attorney, John Payton, told the appellate judges.

Race is only one factor among others, including academic achievement and economic status, and the university's policies do not exclude anyone, he said.

Under a 1978 Supreme Court decision, universities may not use racial quotas but may consider race as a factor when selecting students. Lower courts have interpreted that ruling differently.

Outside the court, hundreds of protesters from Michigan, Ohio and Kentucky demonstrated in support of affirmative action in pouring rain.

"You are the young people. It's up to you to decide what kind of country you live in," said the Rev. Fred Shuttlesworth, a Cincinnati clergyman who marched with the Rev. Martin Luther King Jr. during the civil rights era. "Let's get rid of racism and discrimination."

Attention focused on the Michigan case after the U.S. Supreme Court decided on Nov. 27 not to hear a long-running affirmative action case involving a construction company in Colorado.

Earlier in November, another standout case fizzled when the University of Georgia said it wouldn't fight a federal appeals-court ruling that its race-based admissions policies were unconstitutional. The school said it would try to become a more diverse campus through other means, like recruitment drives.

With the Georgia and Colorado cases no longer headed for the Supreme Court, the Michigan case, along with similar ones involving the University of Washington Law School and a few other institutions, may determine whether affirmative action survives in the U.S.

The Associated Press contributed to this report.