Affirmative Action in Federal Appeals Court
By Kathryn Alfisi
Medill News Service
WASHINGTON - A federal appeals court soon will decide whether using
affirmative action policies in admitting students is constitutional, but
several experts say that schools may try to achieve diversity on their
campuses by other means than race-based admissions.
The 6th U.S. Circuit Court of Appeals is considering two cases: In Gratz v.
Bollinger, which involved the College of Literature, Science & the Arts at
the University of Michigan, Judge Patrick Duggan ruled that the use of
affirmative action was constitutional. In a second case involving the law
school, Grutter v. Bollinger, Judge Bernard Friedman ordered that the school
stop its use of affirmative action.
Whatever the decision by the federal appeals court, schools will still try
to achieve diversity on their campuses, even if that means coming up with
alternatives to affirmative action, said Michigan civil rights attorney Gary
Benjamin said that schools might use income or geographic criteria for
"I think that type of plan would have a lot of support," Benjamin said. "I
think the schools get into trouble when they use racial quotas."
The University of Washington had to change its admissions policies after the
state passed Initiative 200 in 1998, which prohibited preferential treatment
based on race, sex, color, ethnicity, or national origin in public
employment, education, and contracting.
Despite the end of affirmative action, the University of Washington
continued trying to achieve a racially diverse student body.
"I-200 meant that race and ethnicity could no longer be counted as 'plus
factors' for ranking applicants. So our new criteria specified 'personal
factors' that we hoped might capture minority students," the University's
President Richard L. McCormick told the Association of American Colleges and
Universities in January 2000.
McCormick said the school did see a difference in the racial component of
the school after the passage of I-200.
"In September 1999, the number of new minority freshmen at the UW fell from
373 to 255, or from 8.8 percent of the class to 5.6 percent -- a drop of
almost 32 percent," McCormick said.
Benjamin said that the University of Michigan will likely face a similar
drop in the number of minority students if the appeals court rules against
Fighting over the use of affirmative action in colleges and universities is
Speaking before the United States Commission on Civil Rights in 1999, Roger
Clegg, the vice president of the Center for Equal Opportunity, argued that
any school using affirmative action would be violating the 14th Amendment of
the Constitution and the Civil Rights Act of 1964.
Last week at an American University conference, Clegg argued his point again
in a debate about the Michigan cases with Judith Winston, a law school
professor and the former executive director of President Clinton's
Initiative on Race.
"If you could get passing grades and had the right skin color or ancestry
you could get in, period," Clegg said about Michigan's admission policy.
"The costs are enormous. You are telling someone they're not going to get
into your college because they don't have the right skin color and that is a
big deal. You've created a lot of resentment and stigmatism towards that
race you're trying to help."
Winston supported the university's use of affirmative action and refuted the
claim that it is discriminatory. By itself, race does not guarantee
admission to Michigan, Winston said, but when qualifications are pretty much
the same it may be the deciding factor.
The University of Michigan understands "the important role race and ethnic
diversity plays in the quality of education the students receive," Winston
That was Michigan's defense in court -- that affirmative action provides a
diverse student body.
But, in a 1996 decision that got rid of affirmative action policies in Texas
universities, the 5th U.S. Circuit Court of Appeals decided that
"educational diversity is not recognized as a compelling state interest."
The question is whether the Sixth Circuit Court of Appeals will agree with
that verdict in the case of the University of Michigan.