In colleges, a boost for affirmative action

A federal court ruling endorsing the use of race as a factor in admissions at the University of Michigan Law School gives a major boost to advocates of affirmative action.

At the very least, it promises to slow the momentum that in recent years had swung against consideration of race and ethnicity when trying to diversify enrollments in higher education. Moreover, the timing of the case is significant, coming after other appeals courts have staked out different positions on the issue.

Consequently, the biggest impact of Tuesday's decision may be to set up a showdown over affirmative action in college admissions before the Supreme Court – an issue the high tribunal hasn't taken up in a quarter century.

The more immediate impact of the Michigan case could be to bolster some other colleges, particularly in the Midwest, that consider race and ethnicity when trying to diversify enrollments. Schools in some other states, especially in the South, remain bound by federal rulings against affirmative action.

In this week's slender 5-4 ruling, the Sixth Circuit Court of Appeals – which includes Michigan, Ohio, Kentucky, and Tennessee – upheld the legality of the Michigan law school's race-conscious admissions policy.

The court overruled a district court judge who in 2001 found the school's admissions policy to be "practically indistinguishable" from an illegal quota system.

"What the court did was to recognize that if an institution like ours is forced to choose between color blindness [that results in bland racial uniformity] and integration, then they may choose integration – as long as they do it in a cautious way," says Jeffrey Lehman, dean of the University of Michigan Law School.

Prior to the ruling, only the Ninth Circuit Court – which includes nine Rocky Mountain and West Coast states – had ruled in favor of race-based college admissions. Two other circuits – the 11th and the Fifth – which include most of the southern US had ruled against such systems.

Gary Orfield, co-director of the Civil Rights Project at Harvard University, hailed the ruling as "a strong reaffirmation" of the landmark 1978 Supreme Court decision in Regents of the University of California v. Bakke. In that case, the court said racial diversity on campus was a compelling government interest.

But plaintiffs lawyers disagree. They say continuing confusion over Bakke is the reason for the sharp split among circuit courts.

This week's ruling was an especially big relief to many law school deans – who will not have to retool their admissions systems. "We are very pleased with the decision," says Carl Monk, executive director of the Association of American Law schools. "We believe that diversity is critical to the quality of legal education, and we will certainly work to see this result expanded to other circuits and upheld [on appeal]."

The ruling was small solace, though, to schools still operating under other circuit court rulings that make it hard for them to compete for minority students.

"It's very good news in Michigan, Ohio, Kentucky, and Tennessee ... but it doesn't do any good for us here in Texas in the short run," says Douglas Laycock, a professor at the University of Texas law school.

That's because the University of Texas Law School's affirmative action policy was ruled unconstitutional in a 1996 Fifth Circuit Court of Appeals ruling. The Hopwood v. University of Texas Law School case has had wide impact, preventing every higher education institution in Louisiana, Mississippi, and Texas from considering race in admissions.

Since then, the UT Law School has been scrambling to try to use other recruiting methods to fill the gap as applications from minorities dropped off after the ruling. In 1995, the year before the ruling, 7.4 percent of UT Law School enrollees were black, and 12.5 percent Hispanic. After dipping to less than 1 percent of blacks, the school has since recovered to just 3 percent blacks and 7 percent Hispanics.

"We've tried to compete," Prof. Laycock says. "But it's hard because the schools outside our circuit aren't bound by the same rules. None of the substitutes work nearly as well."

The losing side in this week's ruling remains upbeat about its prospects. "Our goal has always been to get to the Supreme Court," says attorney Terrence Pell of the Center for Individual Rights. "And this sharply divided court [shows] that it needs to go there."

Before that, the Sixth Circuit still must render one more ruling on race in admissions – in a case on undergraduate admissions at the University of Michigan.