Appeal to Affirmative Action; Michigan Should Take Case Up to Supreme Court.(OPED)

The Washington Times (Washington, DC), October 22, 2002 | Go to article overview

Appeal to Affirmative Action; Michigan Should Take Case Up to Supreme Court.(OPED)


Byline: Curt A. Levey, SPECIAL TO THE WASHINGTON TIMES

The Supreme Court's long-awaited ruling on the legality of race-based university admissions may be just around the corner. In a bold move, the plaintiffs in the nation's most prominent challenge to affirmative action asked the Supreme Court this month to review their case, even though it has yet to be decided by the appeals court below. While such a request is rarely made or granted, this one may well be an exception.

Not only is this case against the University of Michigan's college one of great national importance, but a request to review the companion case against Michigan's Law School is already before the Supreme Court. Moreover, an inexplicable delay by the appeals court threatens to throw a wrench in the Supreme Court's timing and to prolong uncertainty for applicants and admissions officers nationwide, who are waiting for the final word on whether race-based admissions unlawfully discriminate against whites and Asians. Amid predictions that the justices are ready to tackle the issue, only one thing appears to stand in the way of a decisive ruling - the University of Michigan.

Michigan recently announced that it will petition the Supreme Court not to take the law school case. And the university's reaction to this month's request revealed the same reluctance. "We think CIR is trying to take away our [presumed appeals court] victory from us," said Marvin Krislov, the university's general counsel, referring to the Center for Individual Rights, which represents the plaintiffs in both cases. He indicated Michigan's lukewarm response will amount to: If you take the law school case, you might as well take this one too.

Contrast that reluctance with the reaction of student groups that have intervened in the two cases to defend race-based admissions. Attorneys for the intervenors welcomed Supreme Court review of both cases. Though the plaintiffs and intervenors are poles apart in their mission and ideology, both groups clearly have the courage of their convictions. Each is eager to fight for their cause in the Supreme Court, and each believes that the nation needs clarity, finality, and a uniform rule of law on this issue.

Right now, there is only the Supreme Court's muddled, quarter-century-old University of California vs. Bakke opinion to "govern" the use of race in admissions. The lower courts have split on the meaning of Bakke, such that race-based admissions are either legal, illegal, or up in the air, depending on the state. "The situation is so confused now that the risk of the Supreme Court decision being a bad one is almost worth it," said Ann Springer of the American Association of University Professors, which has been a vocal supporter of race-based admissions. …

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