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Tipping The Melting Pot In Higher Education: Judge Rules Affirmative Action Program Unconstitutional

A federal judge set the stage today for a renewed debate, perhaps even in the United States Supreme Court, over affirmative action programs in higher education. In the March 27th ruling from the U.S. District Court of Michigan, Southern Division, the judge found that the admission's system of the University of Michigan law school was unconstitutional because it considered an applicant's race. This decision contradicts a December 2000 decision, in the same court district but by a different judge, that the consideration of race can be a factor in undergraduate admissions at the university because a racially and ethnically diverse student body produces significant educational benefits.

The university, in adopting its affirmative action programs at the law school and undergraduate level, notes that "diversity in higher education plays a critical role in preparing students to become leaders in business and other pursuits that affect the public interest." (Message from University President Lee C. Bollinger, January 2001). Opponents of the programs argue that the only way to raise academic standards is to tighten admissions criteria.

Whether racial and ethnic diversity in higher education is a compelling state interest is a central question in both cases. In the most recent decision, the judge ruled that the law school admissions program must be race-neutral because racial distinctions are inherently suspect and encroach upon constitutional protections. The undergraduate case is on appeal; the law school plans to appeal the more recent case.

The contrary interpretations coming from the dueling decisions of the court may ultimately result in sending the issue back to the U.S. Supreme Court for the first time since its 1978 ruling in University of California Regents v. Bakke, wherein the Court struck down the university's admissions policy but said the university could consider race as one of several "plus factors" in considering applicants. Since this seminal decision, lower court decisions, state initiatives and referenda, and executive actions have dealt blows to affirmative action programs throughout the country.

According to census figures released last week, non-Hispanic whites are officially a minority in California. Shouldn't this information, and similar census figures coming from Texas and Florida, push the pendulum even further away from affirmative action efforts in the nation's colleges and universities?



The 6th Circuit Court of Appeals in Cincinnati, OH granted the University of Michigan's request to stay the injunction against the law school’s use of race in admissions so that the University could continue using its admissions process this fall.

The appeals panel halted the order recently issued by U.S. District Judge Bernard Friedman that prohibited the university to use race as a factor in admission to the law school. Judge Friedman had ruled that the admissions system was unconstitutional and that the law school could only continue to admit students without using race in the selection process.

The appeals court ruled that the injunction against the law school was causing irreparable harm to the university because it was disruptive of the admissions process for this fall. The appeals panel did agree to expedite the University’s appeal of the lower court ruling as part of their recent decision.

Return to Legal Archive 2001 Index


May 17, 2002
Federal Court of Appeals Rules Affirmative Action Can Be Used in Admissions Policy

Reserve your seat now at the United States Supreme Court for the almost certain debate about race-based admissions policies. In the long and contentious debate over preferential admissions policies, advocates of affirmative action were handed a big win this week when the United States Court of Appeals for the Sixth Circuit (which includes Michigan, Ohio, Kentucky and Tennessee) found it permissible for the University of Michigan Law School to consider race as a factor.

In a 5-4 decision, the court said that the state institution has a compelling interest in preserving a diverse student body and that it does not violate 14th Amendment constitutional protections for the university to consider race and ethnicity for the purpose of admitting a diverse class. The slender ruling overturns the lower court.

This ruling is in sharp contrast to a 1996 Fifth Circuit Court of Appeals ruling in Hopwood v. University of Texas, striking down use of race-conscious admissions. Two other circuit courts add to the fractured judgments, with the Ninth Circuit Court of Appeals ruling in favor of race-based college admissions and the Eleventh Circuit ruling against such race-based systems.

It has been 24 years since the Supreme Court established guidelines for the appropriate consideration of race in university admissions. In that case, Regents of the University of California v. Bakke, the Court held that racial diversity on campus was a compelling government interest.

Until the Supreme Court provides further guidance, conflicting opinions will likely persist. A second case still before the Sixth Circuit challenges Michigan’s use of race in its undergraduate admissions. Unlike the law school case, the lower court upheld the policy.