Wednesday, November 22, 2017

Grutter v. Bollinger

SALT Talking Points

Grutter v. Bollinger

University of Michigan Law School Affirmative Action Case


Who's Who:


The Federal Judge: President Reagan appointed Judge Bernard Friedman, Eastern District of Michigan, to the bench in 1988.


The Parties to the Litigation:


Barbara Grutter: Grutter is a white applicant who was placed on the waitlist and ultimately denied admission to the University of Michigan Law School in the 1996-97 admission cycle. Grutter became the lead plaintiff after a few conservative state legislators who opposed affirmative action collected about 100 potential plaintiffs for a "reverse discrimination" challenge.


Lee Bollinger: Bollinger is President of the University of Michigan, and previously served as Dean of the University of Michigan Law School.


Student Intervenor-Defendants: The Intervenors in Grutter consist of forty-one Black, Chicano/a, Latino/a, Asian American, and other students (including high school, college and University of Michigan law students), along with three pro-affirmative action coalitions, United for Equality and Affirmative Action (UEAA), The Coalition to Defend Affirmative Action By Any Means Necessary (BAMN), and Law Students for Affirmative Action (LSAA).


The Attorneys:


Center for Individual Rights (CIR): CIR is a right-wing "public interest" law firm in Washington, D.C. CIR is the architect of the Hopwood suit against the University of Texas Law School, as well as several other race/gender affirmative action cases. Based on the cases CIR has participated in, the organization's agenda is clear. CIR led the backlash against the following: the Violence Against Women Act, permitting the inclusion of gays in the Boy Scouts, women's attainment of equal participation in collegiate sports, minority voter strength in redistricting, minority workers' protection from offensive racial epithets on the job, and the Clean Water Act, to name a few cases.


Scheff & Washington: Scheff & Washington of Detroit (Miranda K.S. Massie, lead counsel) represent The Intervenors on a pro-bono basis. Scheff & Washington is a small firm specializing in race and gender discrimination cases.


University of Michigan: In addition to its own Counsel, the University is represented by Wilmer, Cutler & Pickering of Washington, D.C., and Butzel Long of Detroit.


A Chronology of Events:


June 25, 1997: Barbara Grutter rejected for admission to Michigan Law School.


December 3, 1997: Lawsuit filed by CIR, claiming violation of the Equal Protection


Clause, 42 U.S.C. Section 1981 and 1983, and Title VI of the 1964 Civil Rights Act.


March 3, 1998: Motion to Intervene filed by Scheff & Washington


August 10, 1999: Intervention permitted by Sixth Circuit, which overturned lower court rulings in both the Law School case and the Undergraduate case (Gratz v. Bollinger).


December 13, 2000: In Gratz, partial summary judgment for Defendant on use of race in 1999 admissions process, but partial summary judgment for Plaintiffs on 1995-98 admission process. Judge Duggan finds that taking account of race for purposes of enhancing educational diversity (Justice Powell's opinion in Bakke) is a compelling governmental interest.


Jan. 16 - mid-February, 2001: Grutter trial in Federal District Court in Detroit.


Trial Began January 16th Amidst Student Demonstrations


Grutter is a so-called "reverse discrimination" lawsuit in which the Center for Individual Rights challenges the affirmative action program at the University of Michigan Law School. Trial began in Federal district court in Detroit on January 16, 2001. A rally was held on January 15th (MLK Holiday). Student mobilizations also took place at the beginning of the trial and are continuing at the courthouse. Judge Bernard Friedman set trial on the following three questions:


1. How much weight the law school gives to an applicant's race,

    1. Whether the law school uses a double standard that favors less-qualified minority applicants,
    2. Whether race should be considered to offset disadvantages minority students face in test scores and grades.


Students of Color Intervene in the Grutter Case by Order of the 6th Circuit:


The Importance of Intervention


Students of color--not university administrators--have the broadest, deepest and most urgent interests in preserving affirmative action. After all, when race can no longer be a factor in admission decisions, it is minority students who are denied access to higher education opportunities. Yet, students of color have too often been silenced and marginalized in litigation challenging affirmative action. For example, in the landmark Bakke case, University of California had no interest in arguing that Allan Bakke may have been denied admission because the Dean at the UC Davis Medical School had the prerogative to admit relatives of wealthy donors. Likewise, in the recent Hopwood decision, the University of Texas had no interest in developing a full record on its own (embarrassing) history of racial discrimination even though that history could have been used to build a case for affirmative action.


Last year the Sixth Circuit overturned the district court's decision to deny intervention. The Sixth Circuit was persuaded by the Intervenors' argument that the "University is unlikely to present evidence of past discrimination by the University itself or of the disparate impact of some current admissions criteria, and that these may be important and relevant factors in determining the legality of a race-conscious admissions policy." Students of color have intervened in Grutter in order to have their voices heard, to shape the trial court record, to present their own experts, to contribute to the larger public debate, and to build a student movement in support of affirmative action.


Questioning "Merit"


In most challenges to higher education affirmative action the fairness of traditional "merit" criteria like standardized tests are taken for granted, and then universities attempt to justify affirmative action as a departure from this norm. In a marked departure from Bakke and Hopwood, the Intervenors in Grutter argue that affirmative action is necessary to offset discrimination students of color face in the current admissions environment. "It will be the first time the racism of the basic admissions criteria will be exposed," said Miranda Massie.


The Intervenors' team of testing experts, including Jay Rosner, Martin Shapiro and David White, argue that the LSAT is racially biased. The Intervenors' experts detail how the test development process weeds out LSAT questions with a lesser discriminatory impact in favor of questions with larger racial/ethnic differences, how the LSAT is a poor predictor of future success, how some questions contain biased and insensitive content, and how "stereotype threat" in the milieu of standardized test-taking artificially depresses minority performance.


Confronting Racism and Inequality


In addition to raising the issue of bias on the LSAT, the Intervenors argue that a hostile climate on university campuses depresses the performance of students of color, imposing burdens to law school admissions that White students do not encounter. The Intervenors commissioned Walter Allen and Daniel Solorzano of UCLA to conduct a campus climate study of the University of Michigan Law School's major feeder institutions.


The Allen/Solorzano study, which received financial support from SALT, investigated climate issues at the University of Michigan (and its Law School), Michigan State, Berkeley and Harvard. The authors used a multi-method research design, including focus groups and surveys. Allen and Solorzano found "evidence of persistent, extensive, debilitating discrimination against women and students of color" in the institutions they studied. They conclude that affirmative action is an indispensable tool in combating racism and entrenched privilege in higher education.


The National Importance of Grutter in the Current Litigation Landscape:


Last December in Smith v. University of Washington Law School, the Ninth Circuit upheld a lower court ruling that it is constitutionally permissible to use race as a plus factor in order to achieve educational diversity. Consequently, there is a heightened possibility of Supreme Court review because of conflict between the Fifth Circuit (Hopwood) and the Ninth Circuit (Smith) regarding whether achieving a diverse student body is a compelling governmental interest sufficient to withstand strict scrutiny review.


The Grutter case will almost certainly be appealed to the Sixth Circuit regardless of the outcome. The Grutter and Gratz cases probably stand the best chance of eventually being granted review by the Supreme Court because of mootness problems with other prominent cases, like Hopwood and Smith. In addition to the presence of Intervenors, the Grutter and Gratz cases are of national importance because these two cases involve substantially more empirical evidence regarding the educational benefits of diversity compared to other affirmative action cases, such as Johnson v. Board of Regents of the Univ. System of Georgia (which is being appealed to the Eleventh Circuit).


Summary of Testimony to this Point (current to February 6)


Updates on the Grutter case are available at www.bamn.com. Jodi S. Cohen of the Detroit News (www.detroitnews.com) has written a series of articles on the trial, and the Michigan Daily (www.michigandaily.com) is covering the case as well.


Testimony for CIR:


CIR called only three witnesses: Allen Stillwagon (the Admissions Director from 1979-1990), Erica Munzel (the current Admissions Director) and Kinley Larntz (a retired statistics professor from the U. of Minnesota). CIR declined to call Barbara Grutter, the named plaintiff in the case.

  • Jan. 16: CIR called Stillwagon in an attempt to show that the Law School's "special admissions program" of the 1980's--which CIR argued included target numbers for minority admits--was functionally equivalent to the current admission policy. Munzel was asked what number of students of color would constitute a "critical mass" at the Law School. Munzel testified that there was not a quota system.
  • Jan. 17: Larntz presented the heart of CIR's case during six hours of testimony. This testimony summarized his earlier expert witness report. Larntz compared white and minority admission rates to the Law School among applicants from the same narrow LSAT and GPA bands, and argued that differences were evidence of an "incredibly large allowance given to member of selective minority groups." U-M lawyers attacked Larntz's methodology and inferences as both suspect. David White's expert report for the Intervenors also includes a lengthy critique of the absurd and socially regressive consequences of applying Larntz's standard of fairness.


Testimony for the University of Michigan Law School:


The University called Lee Bollinger (President and former Law School Dean), Richard Lempert (Law and Sociology Professor and Chair of the faculty committee that designed the current admission policy), Jeffrey Lehman (current Law School Dean), and Kent Syverud (Dean at Vanderbilt Law School). Although one of Judge Friedman's three questions in the trial is "Whether race should be considered to offset disadvantages minority students face in test scores and grades," the University declined to call Stanford Psychologist Claude Steele, its only expert on standardized testing.

  • Jan. 18: Bollinger testified that when he was Dean in the early 1990s, he instructed the faculty to redesign the admission policy so as to withstand potential legal challenges. Lempert testified about the role race plays in admissions and the educational benefits of diversity. Lempert co-authored a major study of the long-term success of the minority graduates of the U-M Law School, which appeared in the Spring 2000 issue of Law and Social Inquiry.
  • Jan. 22: Lehman and Syverud, both law school Deans, testified that it is crucial to have a critical mass of students of color in law school classrooms to achieve a dynamic learning environment.


Testimony for the Student Intervenors:


The Intervenors called Erika Dowdell, a U-M junior and prospective applicant to the law school, Gary Orfield (Harvard Professor and residential segregation expert), John Hope Franklin (Duke professor and the leading scholar on African American history) and Jay Rosner (Executive Director of the Princeton Review Foundation). After a break in the trial between January 26 to February 5, the Intervenors are likely to call several additional experts including David White (Director, Testing for the Public), Martin Shapiro (Psychologist at Emory U.), Frank Wu (Law Professor at Howard U.), Faith Smith (President, Native American Educational Services College), Eugene Garcia (Dean, UC Berkeley Graduate School of Education), and Walter Allen and Danny Solorzano (UCLA Professors).

  • Jan. 23: Erika Dowdell, an African American U-M student, testified about the lack of resources and unequal education she encountered while attending segregated inner city public schools in Detroit. Dowdell also spoke of the ongoing obstacles students of color face at U-M. CIR declined to cross-examine her. Professor Orfield testified on the worsening level of residential segregation nationally and in Michigan, which has the most segregated K-12 public schools in the county. He argued that affirmative action is an essential tool to combat these inequities.
  • Jan. 24, Professor Franklin, who chaired President Clinton's Initiative on Race, testified for about five hours on the history of racism and inequality in America, and how this is linked to the current struggle over affirmative action. Apparently Franklin was quite stirring, for the court reporter did not want to take a break or be relieved of her shift for fear of missing out on part of his testimony. Jay Rosner began his testimony (to resume on Feb. 6) challenging the fairness of the LSAT. Rosner argued that the LSAT amounts to a "white preference test" because the test development process tends to select questions most favorable to whites, men and the affluent.
  • Feb.6-?? In addition to Rosner, White and Shapiro will also testify about the causes and consequences of racial bias on the LSAT. Smith and Wu will likely testify on the importance of affirmative action in Native American and Asian American communities, respectively. Garcia is likely to testify on the barriers Latinos face in higher education. Allen and Solorzano will present the results of their campus climate study of several feeder institutions to the U-M Law School.

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