Law & Courts

Court Deluged With Advice On Mich. Case

By Mark Walsh — April 02, 2003 6 min read
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The U.S. Supreme Court has been flooded with legal briefs in two cases involving affirmative action at the University of Michigan that were set to be argued before the court this week. Some are likely to play an influential role, while others may be lucky even to be skimmed by their target audience: the nine members of the court.

Angelo N. Ancheta, left, and supporters of the University of Michigan's admissions policies.
Angelo N. Ancheta, left, a Civil Rights Project lawyer, discusses campus diversity at a press briefing March 24 as supporters of the University of Michigan’s admissions policies look on.
—Photograph by James W. Prichard/Education Week

At least in sheer volume, proponents of allowing race as a factor in admissions have a decided edge in the battle of the friend-of-the-court briefs.

Some 70 briefs were filed in support of the University of Michigan’s policies, and many of those represent multiple universities or organizations. By comparison, opponents of the policies have filed 16 briefs.

The justices were to hear oral arguments April 1 in the cases: Grutter v. Bollinger, which deals with the university’s law school, and Gratz v. Bollinger, which concerns the undergraduate program at the Ann Arbor, Mich., institution (Case Nos. 02-241 and 02-516).

The most noted brief among the opponents came from the Bush administration. In siding with the white applicants to Michigan’s law school and undergraduate college, federal lawyers said the university’s race-conscious admissions policies “amount to racial quotas.” (“Bush Opposes Use of Race in Michigan Admissions,” Jan. 22, 2003.)

But the administration’s cautious approach, which stopped short of stating that all consideration of race in admissions would be unconstitutional, left many conservatives disappointed.

The justices were to get a chance to explore the administration’s views more closely during the oral arguments, when Solicitor General Theodore B. Olson was scheduled to argue in support of the white applicants.

Besides the Department of Justice, the opponents of racial preferences have several conservative-leaning groups on their side, such as the Center for Equal Opportunity, the National Association of Scholars, and the Center for New Black Leadership.

Gov. Jeb Bush of Florida, President Bush’s brother, filed a brief highlighting his state’s One Florida plan to achieve college diversity without considering race.

“In the time since Florida adopted rules prohibiting its universities and graduate schools from considering race in admissions decisions, the overall minority composition of those institutions has remained steady and perhaps even increased,” Gov. Bush’s brief says.

Dealing With Conflict

On the other side, so many pages of briefs have been filed in favor of the Michigan policies that some observers have suggested that affirmative action supporters have gone overboard.

“At some point, a party might so deluge the court with supportive amicus briefs that the justices, rather than being impressed by the breadth and the depth of the support, are going to be reminded of an anti-abortion letter-writing campaign,” said David J. Garrow, a legal historian and a law professor at Emory University in Atlanta.

Still, Supreme Court cases on major public-policy issues such as abortion and vouchers tend to attract many briefs, even when what they have to say is redundant or of questionable aid to the justices. Some groups simply don’t want to pass up the chance to tell their constituencies that they did what they could to advance an argument.

Groups including the American Educational Research Association and the Association of American Colleges and Universities joined with the Civil Rights Project at Harvard University at a press briefing last week to draw attention to the arguments in their brief about the value of racial and ethnic diversity on campus.

“Experiencing diversity directly in their lives in college helps students learn and helps them deal with conflict in their lives,” Patricia Y. Gurin, a professor of psychology and women’s studies at the University of Michigan, said at the event. Ms. Gurin authored a research report documenting the educational benefits of diversity that the university introduced in the trial phase of the case.

Others want to be a part, however small, of the historical record.

One brief filed in support of the University of Michigan law school is from “13,922 current law students at accredited American law schools.” Their central point is that “a diverse student body imparts invaluable educational and social benefits to law students.” The brief is signed by all 13,922, and runs to more than 200 pages.

Mr. Garrow said such tactics come close to the petitioning and other ways used to deluge—and, advocates hope, influence—Congress with constituent opinion.

“The court very insistently views itself as being above ordinary, numerical political pressure,” he said.

Several of the briefs on the Michigan side have attracted attention for the unusual perspective they provide.

A brief by several former high-ranking military officers reminds the court of struggles to integrate the armed services and says “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC use limited race-conscious recruiting and admissions policies.”

The brief is signed by, among others, retired General H. Norman Schwarzkopf, who led Allied forces in the first Persian Gulf War, and retired Gen. Hugh Shelton, a chairman of the Joint Chiefs of Staff under President Clinton.

A brief from some 65 Fortune 500 corporations argues that universities have a compelling interest in fostering diverse student enrollments because business requires a diverse workforce to compete in the global economy.

The Michigan-based General Motors Corp. filed its own brief making similar arguments. It remains to be seen whether the justices agree that what is good for General Motors also makes good constitutional law.

A Slippery Term?

In the Michigan case, both the National School Boards Association and the National Education Association have filed briefs supporting the university. The briefs pay particular attention to race-conscious issues in K-12 education.

“It is essential in our view that educational institutions be allowed some latitude in making decisions that affect the composition of their classrooms, including the right to consider race as a factor in order to achieve racial diversity,” says the NEA brief.

But in its brief in support of the white applicants challenging affirmative action, the Center for New Black Leadership calls diversity “a clever and slippery term.” In its quest for a diversity of viewpoints among students, the University of Michigan has engaged in “racial stereotyping,” the brief contends.

Michigan has also garnered support from groups of private colleges and universities, which worry that whatever guidance the court provides on affirmative action at state universities will apply with equal force to them.

As private entities, they aren’t covered by the 14th Amendment’s equal-protection clause, which is one legal issue in the Michigan case. But they are covered by Title VI of the Civil Rights Act of 1964, which prohibits race discrimination in educational programs receiving federal funds.

One group of 28 liberal arts colleges, led by Amherst College, argues that the socioeconomically based admissions plans held up by President Bush as an alternative to race-based affirmative action simply aren’t workable for highly selective institutions that draw their students from across the country.

But the elite colleges may not have done their best when it comes to trying to win over one member of the court: Justice Sandra Day O’Connor, who is considered the potentially pivotal vote. At one point, the Amherst brief misspells her name as “O’Conner.”

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