A Mixed Decision in Michigan

University of Michigan President Lee C. Bollinger has long been known as First Amendment scholar. Recently, however, he has been forced to read up on a different section of constitutional law. In a stinging defeat on an issue which Bollinger has championed, U.S. District Court Judge Bernard Friedman ruled in late March that the Michigan law school had to abandon its affirmative action policy because it was “indistinguishable from a straight quota system.”

But in a last-minute reprieve, a federal Court of Appeals in Cincinatti said last week that the University of Michigan Law School could continue to take ethnicity into account in its admissions decisions, since doing otherwise would be an unacceptable disruption to this year’s admissions process. Indeed, the school’s admissions office had been prohibited from mailing its acceptance letters to its incoming class. We applaud the recent stay but realize that the Michigan policy will face further challenges once this year’s letters are mailed out.

Although the system that the law school uses to give an extra edge to applicants from under-represented ethnic groups may not be ideal, we support Michigan’s fight to preserve its affirmative action programs. The system followed by Michigan relied on the accepted standard for affirmative action in higher education, namely that race or ethnicity can be used as one of many factors in deciding a candidate’s admission. This standard, which was based on Harvard’s admissions policy, has been in place since the Supreme Court’s 1978 Bakke decision and should be continued.

Friedman’s decision comes after a contrary decision by U.S. District Judge Patrick J. Duggan concerning Michigan’s undergraduate program. Duggan found that the use of race as a factor in the undergraduate system was justified by the government’s compelling interest in the educational benefits of diversity. Students learn from each other as well as from professors, and a diverse student body adds to the student experience and the educational value of an institution. Affirmative action is a legitimate means of achieving this goal.

Friedman was right to note that a focus on ethnic diversity should be accompanied by concern for diversity in other respects, such as artistic talent or a history of overcoming disadvantage. His concern with the law school’s attention to a “critical mass” of students of various races is also to some extent justified. Students should be assessed on their independent contributions to the campus community, rather than by their contributions to overall percentages. The undergraduate program at Michigan, for instance, uses race as a factor in an assessment of each individual application. Michigan should consider modifying its law school standard to more closely follow its undergraduate program.

However, the courts should soundly reject Friedman’s interpretation of Bakke, in which he found that the attainment of an ethnically diverse class is not a constitutionally permissable goal. Upholding such a ruling would lead to a far less diverse Michigan campus and a significant loss to the educational experience of Michigan’s students.

Bollinger has said that his university will take the case to the U.S. Supreme Court if need be. Of course, the battle need not go that far; the divergent decisions may both be resolved by the 6th Circuit Court of Appeals. But we urge the courts to uphold the Harvard standard, and we wish Bollinger luck in his continued fight to keep affirmative action alive at Michigan.