Nearly a decade ago, attorneys representing the University of Michigan stood
in front of the U.S. Supreme Court defending how the school used race in its
The result was a landmark ruling governing race and universities. The high court upheld the U-M law school's use of race as a consideration in admissions, as long as there was no quotas attached, but threw out the undergraduate admissions system that awarded extra points to African-American, Hispanic and American Indian students.
This morning, attorneys from the University of Texas will be where U-M was a decade ago.
And although U-M cares what happens there -- it's joined in a brief supporting the University of Texas -- the ruling won't directly affect the Ann Arbor school or any other Michigan university, at least for the time being.
Officials and experts say U-M and the rest of the state's public universities are paying much more attention to a court case currently awaiting a decision in the U.S. 6th Circuit Court of Appeals over Proposition 2. That measure, passed by Michigan voters in 2006, erased U-M's court victory by banning the state's universities and other public institutions from considering an applicant's minority status or gender in their admissions or hiring processes.
But Michigan's universities should stay alert to what's happening, said MSU law professor Phillip Pucillo. That's because if Proposal 2 is overturned by the federal appeals court, the University of Texas case will become the new reality.
"That would put Michigan on the same footing as everyone else," Pucillo said. The Texas case "will establish the new model and will become the new lead case."
In August, U-M joined with other public research institutions in filing an amicus brief in the Fisher v. Texas case before the high court today, according to U-M spokesman Rick Fitzgerald.
"The brief argues that the Supreme Court should continue to apply the principles outlined in its 2003 decision in Grutter v. Bollinger, which allowed for the consideration of race in the U-M Law School admission policy," Fitzgerald said in an e-mail to the Free Press.
"The brief makes clear, however, that the university's admission policy is subject to state law. Therefore, in compliance with Michigan state law, U-M no longer considers race in admissions."
Nine years is a blink of the eye on a court where justices can look back two centuries for legal precedents. But with an ascendant conservative majority, the high court in arguments today will weigh whether to limit or even rule out taking race into account in college admissions.
The justices will be looking at the University of Texas program that is used to help fill the last quarter or so of its incoming freshman classes. Race is one of many factors considered by admissions officers. The rest of the roughly 7,100 freshman spots automatically go to Texans who graduated in the top 8% of their high school classes.
A white Texan, Abigail Fisher, sued the university after she was denied a spot in 2008.
The simplest explanation for why affirmative action is back on the court's calendar so soon after its 2003 decision in Grutter v. Bollinger is that the author of that opinion, Sandra Day O'Connor, has retired. Her successor, Justice Samuel Alito, has been highly skeptical of any use of racial preference.
Justice Anthony Kennedy, a dissenter in the 2003 decision, probably holds the deciding vote, and he, too, has never voted in favor of racial preference.
The challengers to the Texas affirmative action plan say they believe the university already has produced significant diversity by automatically offering about three-quarters of its spots to graduates in the top 10% of their Texas high schools, under a 1990s state law signed by then-Gov. George W. Bush. The admissions program has since been changed so that now only the top 8% gain automatic admission. They say additional affirmative action isn't needed.
More than 8 in 10 African-American and Latino students who enrolled at the flagship campus in Austin last year were automatically admitted, according to university statistics.
In all, black and Hispanic students made up more than a quarter of the incoming freshman class. White students constituted less than half the entering class. Asian and other minority students make up the rest.
The Obama administration, 57 of the Fortune 100 companies and large numbers of public and private colleges that could be affected by the outcome are backing the Texas program. Among the benefits of affirmative action, the administration argues, is that it creates a pipeline for a diverse officer corps that it called "essential to the military's operational readiness." In 2003, the court cited the importance of a similar message from military leaders.
A legal challenge seeking to overturn the law is awaiting a decision by the U.S. 6th Circuit Court of Appeals.
Distributed by MCT Information Services
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