News Column

Law, Not Big Names, Sway U-M Case Ruling

February 19, 2003

Maryanne George

The U.S. Supreme Court is more interested in the content of the legal arguments than the names and numbers of supporters for the University of Michigan's race conscious admission policy, legal experts said Tuesday.

Redundant legal arguments from individuals, businesses and organizations supporting U-M's position in defense of its admissions policy won't make it past the justices' law clerks, the experts said.

Last month, President George W. Bush was the most notable among those meeting the deadline to file briefs supporting three white applicants who said they were denied admission to U-M in 1997 in favor of less qualified minorities.

This week, an impressive list of powerful supporters, ranging from retired Gen. Norman Schwarzkopf and Coretta Scott King to General Motors and Microsoft corporations, said they were filing legal briefs in U-M's defense.

In total, more than 300 organizations have signed about 65 briefs to the U.S. Supreme Court, which will hear oral arguments on April 1 in two cases filed against U-M. Because a winter storm shut down Washington, D.C., Tuesday's filing deadline was extended until midnight. The 85 briefs from supporters on both sides to date could set a court record.

Robert Sedler, a Wayne State University law professor and constitutional expert, said the Supreme Court doesn't need a lot of legal briefs to know that "the country is divided" on the issue of racial preferences.

"They are the Supreme Court; they are deciding the cases based on the law and good briefs that are filed," said Sedler. "They will not be influenced by the fact that President Bush says U-M's policies are unconstitutional or that Fortune 500 companies favor affirmative action."

Sedler wrote one of 54 amicus briefs for the high court on behalf of law professors in the landmark 1978 Bakke case. The court struck down quotas in that case but permitted the use of race as a factor in admissions.

While the Supreme Court can handle quantities of briefs, the justices' law clerks will do the first read, Sedler said.

"If they find something new or an argument that hasn't been made by the parties in the cases they will bring that to the attention of the justices," Sedler said.

The supporters arguing on U-M's behalf could persuade the court to rule against the university, said Roger Clegg, general counsel for the Center for Equal Opportunity, a conservative think tank in Sterling, Va. The group has filed one of 20 briefs supporting the plaintiffs in the two cases.

"If a whole bunch of universities say they use racial and ethnic preferences and they like them, it will not impress the court but may persuade them that this is a serious and widespread problem. The court will not give every brief equal weight…The briefs from the plaintiffs and U-M will be weighed more heavily."

Clegg said a brief filed by U.S. Solicitor General Ted Olson on behalf of Bush last month, criticizing U-M's policies as quotas, will likely be weighed more heavily, too, because the administration writes "the regulations and enforces the laws."

Clegg said the briefs filed by 65 Fortune 500 companies may be viewed by the court as a cover for the corporations' use of race in hiring and promotion decisions.

"A Supreme Court ruling may force them to revamp their own policies," Clegg said. "The court will consider this."

U-M General Counsel Marvin Krislov said the supporters' briefs "reinforce how significant diversity and the Bakke principles have become for our country."

GM filed the first brief of support in July 2000, when the U-M cases were still in U.S. District Court in Detroit. Krislov and former U-M President Lee Bollinger asked for GM's support during a meeting with GM executives in Detroit, Krislov said.

"Lee had the idea to show that the principles of the Bakke decision applied to many sectors of society," Krislov said. "It was the first time anyone had reached out to a corporation in a court case."

GM's Supreme Court brief was filed Tuesday, said GM spokesman Edd Snyder.

"Our opinion has not changed," Snyder said. "We believe that a global company such as GM has to deal with a variety of people, cultures and backgrounds to effectively manufacture and sell our product. The best place to find people who reflect those differences are colleges and universities that are diverse."

U-M officials also sought support from corporations such as Grand Rapids-based Steelcase Inc. and were approached by other organizations, Krislov said.

Networking among corporations had more to do with the number of signers on the Fortune 500 brief than Bush's criticism of U-M, said David DeBruin, a Washington, D.C., attorney representing the group.

The corporate effort was started in 2000 by Jim Hackett, chief executive officer of Steelcase, DeBruin said. Twenty corporations signed onto a district court brief, 32 signed a brief when the cases were before the U.S. 6th Circuit Court of Appeals. Sixty-five corporations signed the Supreme Court brief filed Tuesday.

"The Supreme Court's decision to take the cases brought more attention to them," DeBruin said. "It is critically important to these businesses that there is diversity at leading colleges and universities."

Free Press Publisher Heath J. Meriwether said he was approached last week by U-M officials to file a brief supporting U-M's position in the cases. But after discussion with officials from Knight Ridder Inc., which owns the Free Press, Meriwether decided not to become involved.

"We are covering the story and didn't want to compromise our coverage by getting involved in the lawsuits," Meriwether said.

SEE RELATED NEWS:
-- "Commissioners Assail Race-Based Policy"



Source: Copyright ©2003 Detroit Free Press. All Rights Reserved.


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