The court will determine whether the use of race is legal in admissions at the University of Michigan College of Literature, Science and the Arts and the University of Michigan Law School. The ruling will also set a new precedent for how the law should be interpreted in future cases.
Since the 1978 Supreme Court case Bakke vs. Regents of the University of California -- in which a student challenged an admissions program setting aside 16 spaces for minority students -- most subsequent cases have been judged according to Justice Lewis Powell's opinion.
As the tie-breaking vote, Powell's opinion is generally accepted as the narrowest ground supporting the use of race in college admissions. He concluded diversity is a legitimate justification for the use of race in admissions policies, but only in moderation. The ruling outlaws quotas, but allows race to be a factor as long as it is narrowly tailored to serve a compelling governmental interest.
Affirmative action is also lawful to redress past discrimination. But the legal standard requires the redress to be more than a general relief to broad societal discrimination.
The Center for Individual Rights, a Washington D.C. public-interest law firm, filed both class-action lawsuits against the University of Michigan, representing hundreds of plaintiffs who claim to have been hurt by the admission policies -- regardless of whether they would qualify for admission under a color-blind policy.
The university asserts it has complied with the law in using race as a "plus" factor to promote diversity. Student intervenors in both cases argue that, in addition to contributing to diversity, race is a necessary factor in admissions in order to remedy past and present discrimination against minorities.
A federal district court in Michigan district ruled in favor of the university in the undergraduate case and against the university in the law school case.
While both sides agree diversity in the classroom is an important part of a complete education, they disagree on what constitutes diversity and whether Powell's opinion of diversity as a compelling governmental interest should be the prevailing interpretation of the law
Curt Levey, director of legal and public affairs for the CIR, argues that using racial preferences in the interest of diversity perpetuates the stereotype that minorities are unable to compete intellectually without help. Moreover, the use of race as a standard of diversity implies that all people of a certain nationality think the same way, he says.
"It says you can't have a free exchange of ideas in a class without a specific mix of colors," Levey says.
Although Powell found diversity important, he did not specify what diversity is. Levey prefers race-neutral ways of recruiting a diverse student body, such as looking at socio-economic factors or accepting a set percentage of top-ranking high school graduates.
Schools in Florida, Texas and California -- where affirmative action in universities is illegal -- have already adopted systems awarding admissions to the students graduating in the top 20, 10 and 4 percent of their classes, respectively. This method offers opportunity to students from all high schools in the region, regardless of how well the schools prepared them and how they scored on standardized tests.
Frank Rhodes, president emeritus of Cornell University, has criticized percentage plans as a simplistic solution that penalizes a state's more demanding secondary schools, discourages students from taking demanding courses for fear of jeopardizing their class rank and encourages admission of students who may not be as well prepared for their classes.
But more to the point, the percentage plans sidestep the whole issue of race, which is something Jane Anderson feels is an integral part of the equation. Anderson, a professor of political science at the University of Cincinnati, says there is more to the problem than simply offering incentives for people with economically disadvantaged backgrounds.
"Race in and of itself creates a difference of life experience," she says. "It doesn't matter if you come from a rich background -- racism is so prevalent in our society. Race creates its own disadvantage regardless of socio-economic background."
Anderson also believes racial representation is an important factor in achieving true diversity, regardless of economic status.
"Privileged black students still have a different experience than privileged white students," she says.
But in the cases before the federal appeals court, the question of diversity is not the main issue.
Levey agrees affirmative action programs that redress actual discrimination are appropriate.
"Where you can show you're remedying past discrimination, racial preference is fine," he says. "If you can show that at your school there are lingering effects of past discrimination, you're perfectly entitled. But affirmative action can't be used as a remedy for societal discrimination."
The Supreme Court's ruling against affirmative action to redress discrimination by society as a whole is above all practical. It would be impossible to redress each individual complaint of injustice.
But some argue it is equally difficult to prove institutional discrimination without taking into account the reality of the country's racist history and its lingering effects. Anderson delineates the two schools of thought: one says social realities are irrelevant to the law, the other argues the law must take sociological issues into consideration.
"If you don't create law that addresses (sociological realities) you will have law that creates terrible injustices in society," Anderson says. "I don't see how we can get around these issues, as hard as they are."
Quoting an analogy used by the Rev. Jesse Jackson, Anderson tells the story of two men in a foot race. One wears shackles and chains that are removed from his ankles halfway through the race. However, at this point he is so far behind, he will never catch up.
The goal of affirmative action is to hasten social equality. Anderson believes affirmative action is a valid, but not the only, remedy for past injustices.
"Nothing can make up for the past," she says. "We can never undo that. We can provide remedies that attempt to undo the policies of the past, so that for the present and future we will not be repeating the sins of the past. You can't just have discriminated in this pervasive, systematic way and suddenly just say, 'We're not going to discriminate any more.' There has to come a time when we use race as a positive factor instead of a negative factor."
Miranda Massie, lead counsel for the student intervenors in the law school case, agrees.
"The law functions best when it's in line with lived social truth," she says. "The court needs to reach beyond the diversity issue of Bakke and address the urgent questions of racial equality and integration that motivated the beginning of affirmative action in the first place. I want to stress how crucial Dec. 6 is in the course of the development of a new civil rights movement, the only way of holding onto gains we've made in keeping affirmative action and in motivating students."
The student intervenors filed an emergency motion Nov. 30 requesting speaking time after the appeals court failed to allot them any. The student intervenors' testimonies were a large part of the law school case, and Massie wants to know why the court denied them floor time while granting it to the intervenors in the undergraduate case.
If the motion is denied, Massie expects the law school dean to give her five to seven of his allotted 20 minutes.
All parties seem to agree this is a historic case. The fact that all nine Sixth Circuit judges will hear the case -- instead of the usual panel of three -- indicates how important the decision will be.
It is possible the cases will end up in the U.S. Supreme Court, creating a definitive law about the legality of affirmative action in higher education. ©