Proceedings of the AAUP University of Michigan-Ann Arbor Chapter Forum on

Discrimination and Affirmative Action Law:
Challenges for the Next Millenium

Koessler Room, Michigan League
12:00 p.m., Wednesday, December 2, 1998

Theodore St. Antoine

Thank you and good day. As a speaker myself in the past, I've often resented moderators who tried to steal our thunder by engaging in a long discourse about the subject matter at hand. So, my role today is simply to introduce the speakers and lay down a few ground rules about the proceedings.

The importance of the subject is self-evident. I do want to emphasize that the subject matter for discussion here today is carefully set forth in the announcement. And, because the University has several lawsuits currently pending against it, involving both student applicants and some faculty members, there are going to be limitations upon the discussion we can have. The representative from the General Counsel's office will have to be concerned about attorney/client privilege, confidentiality, and the secrecy of a lawyer's work product. So, that will impose some limits on exactly how much we can get into the discussion of specific cases.

The emphasis is going to be upon the general principles involved in Affirmative Action and Discrimination. Our two speakers today are very well qualified to handle this subject -- Jonathan Alger from the National Office of the AAUP and Elizabeth Barry from the General Counsel's office. I will make a separate introduction of Elizabeth later on. Let me now indicate, however, that for those of you who wish to inform yourselves more fully about the legal background of this subject, Jonathan Alger has prepared some truly excellent handouts. I learned something by reading through those handouts. I recommend them to you. They're on the table at the very back of the room--at the door there. There are several different handouts, and please help yourselves to them.

Each speaker is going to have roughly twenty minutes. We do want to leave adequate time for discussion at the end. Jonathan Alger is counsel for the National Office of the American Association of University Professors, advising generally on questions of higher education. But, he does have some specific responsibilities. He's the staff liaison to Committee L which deals with historically black colleges and with the problems of minorities in the teaching profession. He was previously with the U.S. Department of Education in their Office for Civil Rights, and before that he practiced in a private firm involved in Employment and Labor Law. In his own education Jonathan can be said to have scored a double first. He is a graduate of both Swarthmore College and The Harvard Law School. Jonathan Alger.

 

Jonathan Alger

Good afternoon. It's great to be here. I have to say I got a little more sleep, I think, on the flight coming into Detroit than I've gotten in the last couple of weeks. My wife and I had our first child just two weeks ago and so, we've had some very long and sleepless nights, as I'm sure many of you can relate to. So, it's great to be here and I'm sure I'll sleep on the way back, as well.

And, it's not really unrelated in some ways, the fact that we have this new child, to the topic at hand today. We've already been talking about higher education--even before Eleanor, our daughter was born -- because it's such a concern in terms of providing for her education. Making sure she gets the best that we can possibly provide for her. We've already been looking at pre-paid tuition plans in Virginia and elsewhere. And, we've also been thinking about this issue of diversity and what it means for her education. The county that we live in--Arlington County in Virginia--is currently facing its own set of lawsuits similar to what the University of Michigan is facing right now. So, even at the K to 12 level, you have these challenges to affirmative action programs. And, it's a concern to us, because we want her to benefit from diversity in her education, just as her mother and I have benefited. And that's one of the important concepts, I think, today to focus on.

As a white male, I am frequently asked, well why do you speak on this issue? Why are you involved in this whole set of issues? And I think it's critical that we make the point that diversity is a question of educational quality for all students--not just for minority students. In fact, frequently white students can benefit more than anyone else from diversity on campus. And that's something I'm going to talk about a little bit this afternoon.

Both from a political perspective, as well as a legal perspective, I think that idea of the educational benefits to all students is a critical component of what we're going to be talking about today. Coupled with the diverse student body, the AAUP feels very strongly that a diverse faculty is part of that picture in terms of an educational environment that is conducive to learning for all students and that provides different perspectives. So, while some of the cases we'll talk about involve student admissions, please remember that in all of these cases, the principles apply to faculty diversity--diversity in hiring and promotions--as well.

Let's talk a little bit about the national picture here, in terms of what's going on in the national scene on these issues. I know Elizabeth is going to talk about some of the specific cases that are out there right now, and I'm going to talk about some of the general principles. I'm sure most of you have heard a lot of these terms thrown around in the news here in Michigan--and that is that any consideration of race or national origin in college admissions (if you're talking about students, admissions, financial aid), or in faculty hiring or promotions (any sort of program for employment or education), is subject to strict scrutiny under the law. And that strict scrutiny test has two important components.

One is that you have to show there's what is called a 'compelling government interest,' and the second is that the program has to be narrowly tailored to meet that interest. As to the idea of narrowly tailored--we won't go into all the legal definitions of that, but basically it means that the program has to be necessary and not any broader than is necessary in order to meet the interest that has been identified.

Well, the first question that comes to mind is what are the compelling interests that allow you to take race into account? And there have been two historically that the courts have recognized in the higher education context. One of them is remedying discrimination and the other is diversity that contributes to the robust exchange of ideas.

Now, I know here at Michigan you've been talking a lot about diversity and one of the first questions that comes to mind is well, why aren't we talking more about remedying the present effects of past discrimination, which is this other legal standard? Well, there are some important answers to that question that I think it's helpful to understand before we go on to talk about diversity. And, that is that the courts have actually made it very difficult for colleges and universities to base programs on this remedying discrimination rationale.

First of all, there's a very high evidentiary burden and a very difficult one to meet for remedying discrimination. You have to show that there are present effects of past discrimination and you have to show that that past discrimination and those present effects occurred essentially at your specific institution. Under some of the recent decisions they've, for example, said that the University of Texas (in the case against its Law School, the Hopwood case, that many of you are familiar with) cannot look at the university-wide system in terms of discrimination, much less at discrimination in their K to 12 system of higher education. If you're going to be basing the program on the remedying rationale, you really have to look at discrimination specific to that institution. And that creates an obvious set of problems, when you're not talking about general societal discrimination.

Because we all know that that general societal discrimination is around in various forms and that by the time you get to the college level, or the graduate level, it's frequently too late, because you've had various forms of discrimination at the lower levels and you don't have the pool of students that you might have had otherwise. So, that's one of the reasons that this particular rationale doesn't work terribly well for colleges trying to justify their programs--especially if you're not in a state with a formal history of what they call de jure segregation, where you had separate colleges for white students and black students.

Another thing the courts have done, though, is to say that even if you can show you've got numerical disparities in terms of admissions rates or graduation rates, things like that--that's not enough. Numerical disparities for different groups on the basis of race or national origin don't necessarily prove that there has been discrimination. And what the courts in some of these recent cases have essentially done, is that they've told the colleges, you've got to prove a negative. You've got to show that there is no other explanation for those numerical disparities. You have to show, for example, that they are not based on differences in socioeconomic status, or students' choices. That perhaps one group is just randomly choosing to go to one college instead of another, and that's a very difficult type of thing to prove.

Another problem with remedying discrimination as a rationale is that a college, if it's going to base a program on this, essentially has to admit fault. It has to say, we have discriminated in the past, and there are still present effects. And, so you can see the problem is not just with the image of the institution, but also with institutional liability.

And, finally, the courts are very impatient with this rationale. It's kind of surprising if you look historically and think about the hundreds of years of slavery and other forms of discrimination that have occurred in the country and that affirmative action programs have only been around for 30 or so years in the United States. And yet, the courts really want to see an endpoint. If you're talking about a program that is based on remedying discrimination, they want to see that at some point, the present effects have been remedied and that you'll move on and eliminate the program. So those are some of the reasons why discrimination as a rationale is something you're not going to hear a whole lot about, probably here in Michigan--or in a lot of the cases around the country these days.

That leaves us with diversity as the key rationale, the key battleground here in affirmative action today in higher education. And I'm sure all of you are familiar with the Bakke decision from the Supreme Court in 1978. And it's Justice Powell's opinion that you'll frequently hear quoted here and that's where he says that "Achieving a diverse student body is a compelling interest because diversity contributes to the robust exchange of ideas." That simple little phrase is key to our discussion today.

Another component of the Bakke decision is that the institution--the educational institution--has academic freedom to decide how best to educate its students. And part of that academic freedom includes the ability to pick and choose based on various criteria that the institution deems educationally important. So that's another key component out of Bakke that really has not been developed very much in the case law since then.

The AAUP takes this a step further and says that this theory also applies to faculty diversity. So, if you're talking about faculty hiring decisions, the same principle would apply because the robust exchange of ideas on campus is certainly enhanced by faculty diversity.

We have a number of AAUP policies that bear indirectly on this subject matter. Those of you that are familiar with the Association will know that we have a lot of statements on faculty governance and academic freedom and one of the key components of AAUP policies and principles is the concept that different groups within an institution have different roles and responsibilities based on their expertise and based on their official functions. So faculty members, for example, ought to, as front line educators have a critical role in determining the criteria for admissions into the programs in which they are involved and in which they are teaching--and also in faculty hiring decisions. What are the criteria that define merit for faculty hiring?

So, that concept of shared governanceand the different roles and responsibilities of different groups is important to AAUP and should be important in these cases as well.

Bakke, by the way, is still very much the law of the land. It is the only Supreme Court Decision on affirmative action in higher education. We forget that sometimes because you had the 5th Circuit in this Hopwood case, which purported essentially to overrule the Supreme Court and to say that they didn't think that diversity constituted a compelling interest. Basically, the Supreme Court had made a mistake. Well, that is for the Supreme Court ultimately to decide and so we just want to make very clear that Bakke is still the one and only Supreme Court decision that is out there that is specific to the higher education context.

Other courts, by the way, have been following Bakke, even recently. You don't hear about some of these cases so much in the news, but there was a case out of the University of Nevada-Reno. Raise your hands if you've heard anything about this case. It went all the way to the highest state court in Nevada. It involved a faculty-hiring program that was based on diversity. They had very little faculty diversity. They had what they called a minority bonus program where if a department hired a minority faculty member, the next year, they got an additional slot. This program came back to haunt them, because what they did is they hired an African American male and the next year they hired the runner-up in that search, who was a white female. She turned around and sued and challenged this affirmative action program. But, the university was successful in defending the program on the basis of the Bakke decision and applying it to faculty hiring. Now, I'm not going to hold that program up necessarily as a model, because I think there were some problems with it.

But the point of that case is that the Supreme Court had an opportunity to review that and they denied cert., just as they did in the Hopwood case. So, it's important to know that there are cases out there, even right now in this difficult legal context, where affirmative action programs are being upheld.

Now, the key point from Bakke that's going to be a challenge, certainly in the cases here in Michigan and University of Washington and other places, is what does it mean in terms of diversity and the robust exchange of ideas? How do you link those two things together? It's not enough just to say diversity for the sake of diversity. And the courts have frequently been upset or disappointed when it's brought forward to them that the justification for diversity is that people, by virtue of their race, will have different points of view, and that's how you get the robust exchange of ideas.

This idea that race is a proxy for a point of view is what the courts have really frowned upon. And we at AAUP actually agree with that. They say that that is a group-based stereotypical assumption, and I personally think the courts are probably right about that. That rationale is not appropriate.

However, the exact opposite assumption is the premise that we have been researching recently at the AAUP and that more and more universities are beginning to examine. And the exact opposite works this way.

If you say that race can't be a proxy for a point of view, then what about the fact that seeing similarities across racial lines, and differences within racial groups, breaks down stereotypes in the most effective way possible, when you have face-to-face interaction on campus. By seeing the fact that not all African American students think alike or have the same perspective; the same being true of African American faculty members; the same being true of Hispanic students or of white students. But you need to have face-to-face interaction to see those similarities and differences and that's how you break down stereotypes most effectively.

One of the key components of this rationale is that it turns this race as a proxy on its head and it says, no, we are not making group-based assumptions about individuals. In fact, we don't know, as a university, what we're going to get necessarily in terms of political perspectives when we bring students in. Maybe that's another form of diversity that we're looking for in addition to race, is different political perspectives--different types of ideas and backgrounds.

But, this theory is now actually being tested, because the courts want to see hard evidence. They're not satisfied with anecdotes and that sort of thing. So, the AAUP has actually undertaken some research with a number of other organizations around the country from the faculty perspective. What we've done is we've put together a survey--by any chance have any of you received this in the mail within the last week or so? Okay. It went out to a random sample of faculty members at Research I institutions around the country--just within the past week or so. And the survey looks at the faculty perspective on the educational benefits of diversity. What is contributed to classroom discussions…to questions raised in class…to your own research and to your own teaching techniques by having diversity in class.

So we're asking those very specific types of questions, and the idea is, thinking back to Bakke and the concept of academic freedom, going to the frontline educators and saying what contributes to the educational mission of the institution. How does diversity contribute to that mission? So that's the question that we're trying to test in as scientific a way as you can test something like that with this faculty survey. And, as I mentioned, a lot of other organizations are doing research along these lines as well.

A couple of other lessons that we've learned from the cases on diversity is you never want to say that diversity is the end in itself. The Boston Latin case, which I think Elizabeth is going to talk about, goes after this concept. That if it's just racial balancing, just looking at numbers of groups and under-representation, that's not good enough. You really have to tie in diversity to your educational mission.

Another thing is that if you're talking about true diversity and the robust exchange of ideas, you're not just talking about race and national origin. So, your programs ought to be looking at other factors that contribute to diversity as well. Whether it's geography or special skills and talents. Anything that contributes to that broad diversity among your students and your faculty. So if you've got a diversity-based program, it probably ought to have some of those other factors in it.

And finally, programs have to be reevaluated periodically under the law and you need to look at the change in demographics, so if you put a program in place with set percentages, that's a dead giveaway for something that five or ten years down the road needs to be reexamined, or it's going to be challenged.

One other point here on the law, those of you that are conspiracy theorists, probably know there really is a conspiracy on these attacks on affirmative action. There are some organizations out there looking for sympathetic plaintiffs--the Center for Individual Rights being the foremost one, which is involved here at Michigan. And, they make no bones about it. They are looking around the country to file suits, so be aware that this is one case when there really is an organized effort to go after affirmative action programs in higher education.

So what can the colleges do to respond to these challenges in light of these very adverse court rulings? Well, one thing that I strongly recommend and I think the cases have been pointing us to is looking at the definitions of merit that we use for faculty and for students. That's been perhaps the most helpful part of this whole debate.

Courts will defer to an institution's development of the definition of merit. If you want to go beyond test scores and GPA's and you want to go beyond simple numerical, easily quantifiable types of factors, the courts will generally be deferential to the educational institutions in doing that. However, you need to be consistent, if you're going to do it. You don't want to do that for some people and not for others. You want to think about the contributions that people are going to make to the educational environment on campus and not just to their own individual achievement.

My favorite example of this that everybody understands is that if you're just talking about strictly merit and you're a football team and you're recruiting, you're not going to go out and recruit the top ten quarterbacks in the state, because you don't need ten quarterbacks--even if they're all terrific athletes. You need quarterbacks, and running backs, and receivers, and a variety of people. Well, that's true for a college in general with its faculty and with its students. So, when you think about merit, you need to think about the community aspect of merit, not just about individual achievement.

Finally, a couple other factors that really help programs. One is if there's some flexibility, so if there are special circumstances, like some of these sympathetic plaintiffs that are coming out of the woodwork, you want to have a program that's flexible enough to take into account special circumstances and characteristics. So, it's good to have questions and elicit that kind of information from applicants, whether it's for faculty positions or students.

And finally, facially neutral criteria can really hide subtle forms of discrimination sometimes. One of my columns that you have in the handouts talks about this. And, I just want to mention these very briefly in the faculty context.

If you think about search processes, look at your own job descriptions that you're using for faculty. Maybe you want to look for people who have experience dealing with diverse classroom settings. People who have experience with different teaching techniques. Make sure that you're not just grading institutions or graduate schools so that historically black colleges get ranked lower than other schools. There are a lot of subtle forms of discrimination that can creep into the process.

Teaching--the same is true on that criterion. If you're evaluating someone for tenure. If they teach non-traditional courses, so to speak--ethnic studies courses--are they getting less credit for that than for other courses? In research, do you favor traditional topics and traditional journals so that if someone does some sort of interdisciplinary type of work, they're getting less credit for that?

Service--the other component of a tenure decision. A lot of minority faculty members are pressed into service on all sorts of committees, because every committee wants to have a minority representative. Well, are you reflecting that in your tenure decisions as you're evaluating candidates? Are you looking at how many students they have to mentor and provide services to, merely because of their race? Because, let's face it--not many white faculty members are asked to be the mentor to lots and lots of students solely because of their race.

And finally, the criterion that scares me the most as a lawyer, right now that's out there, is this criterion of collegiality. I would advise to be very careful in how that's used in the higher education context. Because if you want a smoke screen for discrimination, that can really do it. It's a very easy way to screen out candidates or to be used against candidates who are a little different than their colleagues, who have a different point of view.

And finally, from AAUP's perspective in these types of issues, we've seen a lot of attacks on tenure these days and sometimes people say that tenure hurts minority faculty. Our feeling, very strongly, is that tenure protects academic freedom for everybody. Particularly for minority faculty members who want to challenge the status quo, tenure is a very important tool to protect that ability to make those challenges.

If you look at institutions that have done away with tenure, what you frequently have is a two-tier system. You have the tenured faculty members who are frequently white males, of course, just because they've been in the profession the longest, and the lower tiers tend to be females and minority faculty members. So, cutting back on tenure is not a solution that we recommend. Instead, we recommend looking very carefully at the procedures that are used. Evaluating students and faculty all along the way and looking for those subtle forms of discrimination that might be lurking in the process. So, it's important to have good, truly neutral criteria and to be consistent in how they're applied.

With that, I'll turn things back over to Ted so that we'll have enough time for questions at the end.

Thanks.

Theodore St. Antoine

Thank you very much for that both lucid and comprehensive presentation, Jonathan. Our next speaker is Elizabeth Barry, who is the Associate Vice President and Deputy General Counsel of the University. Liz is one of our own. She is a summa cum laude graduate of the undergraduate school here at Michigan and an Honors Graduate of the Law School. Liz then went off to Boston where she practiced with one of the most prestigious firms in Boston until the shrewd beast beside the Charles took her away--Harvard captured her, quite sensibly, to become a member of its legal department. And while at Harvard, she also taught higher education law in their graduate school of education. Bernie Machen once told me that the smartest thing he ever did while Provost at the University of Michigan was to lure Liz Barry back from Harvard to join his staff. Then he said, with sadness: "And one of the best things Lee Bollinger did after just three months was to steal her away from me!" She served all of three months as Director of Academic Human Resources in the Provost's Office before Lee had the good sense to steal her and then she was, for a year and a half, the interim General Counsel of the University. We also have had the good sense at the Law School to make use of Liz's services, teaching higher education law with us as well. We are delighted to have you with us, Liz, and are looking forward to your presentation.

Elizabeth Barry

Thank you for having me here. I'm really pleased to be here. This issue is very important to me, personally, as a long-time member of the Ann Arbor community and the University community and also very interesting and important to me as a lawyer, as well. So, thanks for inviting me. And, thank you Jonathan. That was a great overview and really allows me to jump off and to talk about the cases that are pending here at the University of Michigan and to talk about what's going on in a few of the other cases that are going on across the country.

We've got two cases challenging our affirmative action programs and admissions here at the University of Michigan. They're both in the Eastern District Court--Federal Court--in Detroit. There's a case challenging our undergraduate admissions program, which is called the Gratz case and that's before Judge Patrick Duggan and we have a case challenging the admissions program at our Law School, and the plaintiff's name in that case is Barbara Grutter and that case is before Judge Bernard Friedman.

Both of these cases are brought by the Center for Individual Rights, which Jonathan mentioned. CIR, as it's known, is a non-profit, "public interest" law firm in Washington, D.C. They're not a membership organization. They get their funding from various foundations and grants, and they've been engaged for about the past six or seven years--they've been around for longer than that--but for the past six or seven years have been focused on challenging affirmative action programs at colleges and universities across the country. They are currently suing us. They are currently suing the University of Washington Law School, and I'll talk about that case in a minute. They are suing a number of historically black colleges in the South. They've challenged federal programs sponsored by the National Institute for Health and the National Science Foundation. It is what I would call a "campaign of lawsuits."

So, both cases are brought by CIR. They are both individual cases and class action cases. Jennifer Gratz and Patrick Hamacher are the named plaintiffs in our undergraduate case and as I said, Barbara Grutter, in the Law School case. But the cases are also styled as class actions. So, these individuals are not just suing for themselves, but suing as representatives of the class of individuals who are similarly situated. I will talk a little bit more about what's going on in the class action front in a minute, but you should know that the plaintiffs are suing for both monetary damages but also suing for various types of injunctive relief such as being admitted to the University and also to change the programs and policies of the University. (There are slight variations between all of the plaintiffs on exactly what injunctive relief they are claiming and you can take a look at their Complaints which are posted up on our Web site if you want to understand the subtleties of those distinctions.)

The lawsuits that are before us challenge our ability to consciously consider race and ethnicity in our admissions process. Our opponents believe that the conscious consideration of race and ethnicity is unlawful. They assert that it violates the Fourteenth Amendment of the Constitution and the federal civil rights laws that are promulgated under it. They say that the Supreme Court precedent in the Bakke case that Jonathan talked about is no longer viable, given subsequent cases by the Supreme Court. And they say that even if that were the law of the land, our policies do not meet that standard. So, they challenge us really in two different ways. And that's the same for both cases.

Both cases are scheduled for trial in May or June. We have a trial date in the Law School case of June 22nd -- I think at 9:30 a.m. if anyone wants to fill that in on their calendar. In the undergraduate case, a Scheduling Order has been issued recently and it calls for a trial in May or June. So, these cases are on a very fast track. Now, any of you in this room who are experienced with litigation, you understand that trial dates don't always hold and things take longer than you think. But, I will say that these cases are proceeding quite quickly. We've been engaged with the other side in a discovery process where we exchange information. First, we exchanged documents. (We had a lot more to give them than they had to give us.) And, now we are engaged in the process of depositions where witnesses on each side give oral testimony. We've been working very hard at that. So, we've been very busy.

Our opponents say that Bakke is dead and that our policies in any case don't comply with Bakke. Well, what do we say? In our Answer to the Complaint, we say, first of all, that Bakke is alive and well, and the law of the land. The Supreme Court doesn't overrule itself without saying specifically that it has overruled itself. (I think Jonathan alluded to this.) In fact, shortly after the 5th Circuit decided that it was going to overrule the Supreme Court (in the Hopwood case), the Court -- in a case unrelated in substance to the issues of civil rights and affirmative action -- wrote an opinion where they carefully explained that Lower Courts were not to overrule the Supreme Court. That was the prerogative of the Supreme Court. Everyone read that as a definite message to the 5th Circuit.

So, we say that Bakke is alive. We say that we consciously consider race and ethnicity, as one of many factors, in order to achieve diversity, which we feel is essential to fulfilling our educational mission. And let me just flesh that a little bit out for you.

It is the University's belief that diversity is the key to academic excellence for exactly the reasons that Jonathan explained. It is through the robust exchange of ideas that we both discover differences between each other and similarities. That enterprise -- that sort of crossing of racial sensibilities in a complex way -- becomes a metaphor for crossing sensibilities of all types. It forces all of us to challenge the sort of habits of mind that we get into. Challenging automatic judgments really translates into a whole lot of learning in a variety of different contexts. So, it's certainly my personal belief that diversity makes us better teachers of all kinds of topics--not just topics along the lines of race and gender -- but enables us to better explore physics problems, understand English texts and all the rest.

Diversity is the key to academic excellence. But diversity is also key to preparing our students to live and function in an increasingly pluralistic democracy. This University has a very broad and complex mission which is just not about scholarship, narrowly defined, but really about learning, broadly defined. Learning tolerance, awareness, understanding and really preparing our students to go out into the world after they've been here and be better citizens. And, if you haven't done so recently, I would really encourage you to go back and read Brown vs. the Board of Education, in which the Supreme Court talks about integration and the value of integration. There is beautiful language in that case about this very notion of citizenship and the importance of training our students to become better citizens. It discusses how integration in schools is directly connected to that goal.

I want to speak for a second to a point that Jonathan made about the legal defenses of race conscious programs. He discussed that you can defend them in terms of remedying past discrimination or on the basis of the connection between diversity and an educational mission. We’re defending our programs on the basis of our compelling interest in diversity. This institution has a long history of valuing diversity because of its importance to our educational mission. But I think it is important to point out that this defense is not entirely divorced from the past. You cannot understand the meaning of diversity without understanding the meaning of race in our society, which is obviously tied to our country’s history of past discrimination. So, I would submit that our defense on the basis of diversity is not divorced from the past and is not divorced from the meaning of race in our society.

All right. Let me talk briefly about some recent developments in these two cases. One has to do with intervention. As you know, there are groups trying to intervene in both our undergraduate and our Law School case. In the undergraduate case, the intervenors consist of some minority high school students from Ann Arbor and Detroit, their parents, and a group called Citizens for Affirmative Actions Preservation. They are represented by attorneys from the national and the local chapters of the ACLU and the NAACP Legal Defense Fund.

Intervention is a legal doctrine which basically says, if you have two parties in court and they're engaged in resolving a dispute where the rights of a third party are integral to that dispute, it's a whole lot more efficient if we just do it all at once in court at the same time. The classic kind of intervention has to do with property disputes and property lines. If two neighbors are fighting over a property line and there's a third neighbor in the backyard that's also got a dispute, you might as well do it all at once.

The Law School intervenors are a similar group-- both individuals and coalitions. Although the scope I would say, in the Law School is more national in nature. There are undergraduate and high school students – interestingly -- from across the country and a number of organizations, some of which are based on the West Coast who are seeking to intervene in the Law School case.

Both Judges in both cases have denied the Motions to Intervene. The basis of their rulings have basically been the same, and they are twofold. One: although the courts acknowledge the serious interest that these groups have in the outcome of our disputes, both judges have found that those interests don't arise to the level of a true legal interest. And two: both Courts have also said that the University is positioned to adequately represent the interests of these groups in the case. We will adequately defend their interests in the litigation so there isn't a reason to bring them in as parties.

Now, in the undergraduate case, Judge Duggan took the step when he denied the intervention of allowing the intervenors to participate as amicus or friends of the court at the trial stage. This is somewhat an unusual step for a judge to take. It's much more typical that you see amicus briefs filed at an appeals level, at the Supreme Court level. I know the AAUP does that quite often. But it is less typical to see amicus at the trial level and what Judge Duggan's Opinion says is that they will be allowed to participate. They will get copies of the documents that are filed in the case. They will also have an opportunity to weigh in on any written Motions that are made. So, for instance, if at some later stage in the litigation some sort of dispositive motions are filed, like summary judgment motions, they will have an opportunity to weigh in. So, they will be participants, but not full participants in the way in which they had petitioned the Court.

In the Law School case, Judge Friedman did not take that additional step. There intervention was simply denied. Both groups of intervenors are now appealing those decisions up to the 6th Circuit and no decisions have been made by the 6th Circuit yet. Those appeals are pending and you should look out for the results, which hopefully will come quite soon, because obviously, the later the case gets, the more difficult it is for the intervenors to participate meaningfully in the case.

The second recent development has to do with this issue of class certification. It's not enough for a party, like our opponents say, are to simply claim that a matter is a proper class action. They actually have to bring a Motion before the Court and certify that this is a proper class action. They have done that, now both in the Law School case and in the undergraduate case. A hearing on the class certification Motion was held in the Law School case in October. And then at that time, the Judge said that he would issue a decision in the next four weeks or so and that was held, I think, October 24th, so I think we could expect that we will hear something from the Judge on that issue fairly soon. And, there is also a class certification Motion pending in the undergraduate case and that has been scheduled for oral argument later this month. So, we'll be hearing something about the class aspect of these cases fairly soon.

Let me talk now about what's going on in other parts of the country. Jonathan alluded to a recent decision in the 1st Circuit involving the competitive Boston public schools, and particularly Boston Latin School. This is the Wessman case. The plaintiff is the father of a disappointed applicant to Boston Latin School and spelled W-E-S-S-M-A-N if you're trying to find it on the Internet or in the Law Library.

I want to just lay out for you the facts of how they did admissions in those schools, so that you can understand a little bit better the Judge's decision.

To be admitted to the Competitive Public Schools in Boston, you take a test--an entrance test. Similar to the SAT except geared for 7th graders and 9th graders. Those are the main two admissions points to these schools. Your combination of your GPA and your test score becomes a composite score and after you take the examination, the individuals are separated into pools based on which of the competitive schools is their top choice. In order to be considered a qualified applicant to get into these schools, you've have to be in the top 50% in terms of your composite score of the group that wants to go to your particular school. So, let's take Boston Latin. If you want to go to Boston Latin, you get put into the Boston Latin pool, and then in order to be a qualified applicant to that school you must be in the top 50% of the group that wants to attend Boston Latin. That group becomes the qualified applicant pool.

[The following portion was lost when the tapes were being changed so the speaker has reconstructed it:

Half of the seats in the entering class were assigned strictly according to score, without regard to race. The other half were allotted in proportion to the racial composition of the qualified applicant pool.]

The Boston public schools defended this program based on the compelling interest of diversity (and its link to academic excellence) and in order to remedy past discrimination in the Boston School system. I'm sure you are familiar with the history of segregation in the Boston School system, which was the subject of much litigation and much public attention in the sixties and seventies.

In deciding this case, the First Circuit says: Bakke is not dead, and we’re not going to be the one to tell the Supreme Court that Bakke is dead. Judge Selya says: I'm going to assume that diversity can be a compelling interest to defend a race conscious program of admission. And he doesn't really spend very much time in his opinion debating that one way or another. But, he goes on to say that when I look at the methodology that the school is using to achieve this objective, I find their objective to be suspect. If this is really about diversity then what's all this business--and I'm paraphrasing here--what's all this business about percentages in the class reflecting percentages in the applicant pool? He asks: how does that track onto a rationale that says that diversity is important to educational excellence? He concludes that what is really going on is racial balancing. The judge does an analysis where he says if you didn't use these guidelines for filling that second half of your class, you would still have some diversity in the entering class--not as much--but some. So, explain to me, Boston Public Schools, what the difference in terms of academic excellence and outcome there is between the diversity you would get without the system and the diversity that you get under the system. And, because they didn't do that or weren't able to do that, he finds this rationale very suspect.

In doing this, the Judge rejects a notion that there is a "critical mass" of minorities that's necessary to achieve the educational benefits of diversity. And, I want to talk about that for a second. Because, in the Bakke case, when Justice Powell wrote his opinion saying that race could be one factor among many and talked about the educational benefits of diversity, he cited Harvard's undergraduate admissions policy as the kind of policy that was doing it exactly right. In fact, the Harvard undergraduate admissions policy is an attached as an appendix to the Supreme Court Opinion in the Bakke case.

If you read that appendix, you will see that Harvard talked about this notion that in order to achieve the benefits of diversity, there has to be a critical mass of underrepresented minorities on campus. Social science tells us that there is a certain freedom that comes with a critical mass that is a predicate to the educational benefits of diversity. Judge Selya looks upon that very dimly. He says: I just don't believe it and you haven't shown it. And, I think that that's an interesting note for all of us who are defending these programs. This notion of the critical mass and its importance to programs is, I think, going to be very important in judges' minds.

Okay—I’m just about out of time so I'll just go real quickly. The dissent in that case, which you should read at some point, rejects the diversity rationale, but says that remedying past discrimination should have carried the day in the Boston Public School System. He cites the history of segregation discrimination in that system and also discusses some testimony that was presented in that case about the achievement gap on this entrance examination between majority and minority students. And, I recommend it to you.

What are the implications of this case for us? The short answer is that there is no direct effect on us. This is a case in the 1st Circuit. It's not a case in our Circuit--we're in the 6th Circuit. And, it's not a case about higher education. The longer answer is that we get a very important prominent Judge, affirming that Bakke is still good law. We always thought so, but it's nice to hear it from a Judge like that. But, on the other hand, you get this puzzling take on what an institution that premises its programs on diversity really needs to do in order to prove it. It's not easy to understand what the lesson there is.

I won't go into this too much--we just don't simply have time--but the argument that is not addressed in that case that would be very relevant to higher education is this notion of academic freedom. Institutional academic freedom. And, we should talk about that more sometime. It's a very, very important concept.

Let me just tell you what's going on in the University of Washington, and then I'll stop and take your questions. University of Washington Law School is also being sued by CIR. But, as you know in the elections a couple of weeks ago, the voters in the State of Washington, passed a state statute that makes unlawful any programs--educational, contracting, et cetera--any state programs that consciously take race and ethnicity into account. And in the wake of that statute, the President of the University of Washington has declared that they will no longer in their admissions policies consciously consider race and ethnicity.

Last week, a Motion to Dismiss the class action portion of that case was filed by the University of Washington, and basically, what that Motion says is: to the extent the class action part of the case was seeking injunctive relief going forward, we've already made the decision that we will not be going forward with these policies so that part of the case is entirely moot.

That means that the only parts of their case left are: should the plaintiff have gotten in and what are her damages. So, I think it's safe to say that the national significance of that case is greatly reduced and it's difficult to say how long that case will continue to be viable under those circumstances.

So, let me stop there. I was just going to touch briefly on hiring and promotion policies, but I can do that in answer to a question.

Theodore St. Antoine

Thanks, Liz, for that very careful analysis. Now, I think we're ready for questions and comments from the audience. We're open for floor discussion.

Q I'm not a university professor. I am an alumna. I was admitted to the University in 1973, which in fact is the year that the Bakke case received pretty much the attention that it did get. I do a lot of activities now in the public schools. We have a local civic center, who by the examples that you cited in the Boston Latin case is bringing suit against our public schools for perceived discrimination against white students. Like we have this African American Academy and the issue is does that discriminate against white students? My question and this is for any faculty or even of the attorneys here, is in light of the pressure to move away from race balance as a criteria, and in light of the, I guess the suggested alternative of bringing in other options, just what would those options be? Now, you talked about the ____?___ and what difference ___?___ say, within a minority group in the event that could be you could do. But, when we talk about just the issue of ethnicity, is there in fact enough quote-unquote, difference, within a racial minority group--say African Americans and that can be a valid alternative, as opposed to say for women? And, in fact if you look at women at since, you know, women are understood to have benefited most under Affirmative Action, then how do you find that broad diversity and the category of gender, as well? If you've got women coming in from say…they have been coming from essentially the same background, now what criteria will women have to use as we move into this new definition, I guess, of what's acceptable to the courts for admission?

JA I'd like to make a couple quick comments. I gather--let me make sure I understand your comment correctly, first. You're talking about schools where…it's a school that's limited to African American students who are all female?

Q It's not a school. It's just a study group.

JA A study group. Okay, a program of some sort. Well, first of all, under the law as your example illustrates, any sort of program nowadays, even special orientation programs for minority students and things like that--any program that is based on race or national origin is subject to these types of legal attacks. And, it's kind of the next wave of attacks, in fact, that we're seeing now. It's not just admissions and financial aid, but you know, even the orientation sessions or special tutoring programs, things like that. So, they are absolutely subject to these legal challenges. However, I think you can try to make the same types of arguments, thinking about the educational mission of the institution that I talked about in terms of the diversity theory to justify those types of programs. Potentially. What you need to do is to look at the educational mission of the institution and why is that type of program necessary? Why is there no substitute for race or for gender? Why would it not be good enough to do what a lot of the critics of affirmative action have said, and replace it with socioeconomic status. Because, that's really what it's all about. It's people who have been deprived in different ways in their backgrounds.

I think one of the ways of helping those programs is if there's any kind of flexibility, so if you have a special program of some sort, say for women or for minority students, if there's a particular benefit attached to that--a study group--then make sure that that same type of benefit is available in some fashion to all students. It may not have to look exactly the same, perhaps, but if that kind of benefit is available to all students, then it greatly reduces, I think, the potential of the legal challenges.

You really end up with problems when you have a benefit that is just for one group and not for anyone else. Does that make sense?

Q I understand what you are saying, and I guess what I am trying to figure out on an individual and on a more global level from where you stand, is if we take away that criteria--let's just say race--and then we say, okay, well, why do we need this in order to accomplish this objective that we have? When a lot of people will argue that we have enough quote-unquote remedies with Civil Rights laws and so forth to address any discrimination. And, if in fact those were working, I guess we would ___?___. But, let me just be concrete because I don't want to get too dense here. When I came to the University as a student 25 years ago, we had very few minorities of any ___?___ and some got ____?___down for recruitment ___?___ scholars and all that. When I looked at the faculty, I saw very few, if any, minority people. And when I say--I'm using the race here. As I matriculated through the system and looked for jobs within the community, within the University, the same scenario existed. So, I'm really confused and I would appreciate being enlightened here as to how this has harmed people. And, in fact if you had little to begin with, and now you're asking for a policy that gives you even less, how is that benefiting anybody except the majority group?

JA And that, you know, that question really goes to the heart of the strategy that's been used by some of the opponents of affirmative action. If you'll notice, I use the word conspiracy quite deliberately here because these groups have learned from civil rights organizations in the 1960's, bringing cases like Brown vs. Board of Education and some of the later cases. They looked at the tools of how they chose plaintiffs very carefully…that were very sympathetic. Chose factual scenarios that could grab the public's attention. They've been using those tools now against the very laws that were passed to protect minorities and women. I mean, that's why we have those discrimination laws in the first place. And the real irony, I think, is that this very strict level of scrutiny that only applies to race and national origin--it doesn't apply to diversity on the basis of geography or something else, right? You can discriminate on all sorts of other bases, and not be subject to strict scrutiny. Well, why do we have the strict scrutiny? We have it because that history of discrimination was so deeply embedded in the culture that it was felt that it was absolutely necessary to have the strongest possible legal protection against that form of discrimination. So, that's come back to haunt us in these cases. And I think part of the answer to your question in terms of those who would defend affirmative action programs and try to look towards the future of how we can continue to try to achieve diversity, is to say, we need to be using some of those same tools again. We need to be using the media as well as the Center for Individual Rights, and other groups that are using the media, for example. We need to be able to make politically persuasive cases. We need to be able to do the hard research that I mentioned with the kind of study that AAUP is doing. If the courts say we want hard data, then figure out how to come up with studies that will back up some of these theories. Because, so many institutions have just paid lip service to diversities and we think it's a good thing. But, they never felt it was necessary to really study why. And part of that is because, in years past, nobody really challenged them on it.

But that kind of research can be done and it is being done. Right now, I know Bowen & Bok--many of you are familiar with that book that came out recently called The Shape of the River--where they studied different classes of students that graduated from elite institutions and drew many conclusions from their study that affirmative action programs have been quite successful in preparing students for their careers after graduating from elite colleges.

So, that kind of research needs to be done. It needs to be publicized and we need to sort of recapture some of the tools that the other side is using. Because, I can tell you from reading The Washington Post right now, you would think that the greatest form of discrimination out there was reverse discrimination against whites. And yet, if you actually look at the cases, say that the EEOC has--employment cases out there--it's a very insignificant percentage overall of all of the cases that they have to deal with. And certainly, I think any of us that think about higher education, we think of what discrimination problems exist. I think very few of us would say that the largest and most significant problem facing us is discrimination against whites that other groups have been benefiting from. Now, that's my own perspective. I'm sure there might be others that would disagree.

M I think we really ought to move around for the benefit of getting different points of view.

Q [Louis D'Alecy] I'd like to hear your spin on what happened in Washington. You know, if there's no universal sentiment against us, then how come we have legislation in the State of Washington that clearly goes contrary to this and in that context, was AAUP asleep at the switch and is the University of Michigan doing anything to be preemptive about such an action in the State of Michigan.

M Why don't both of you take a whack at that one?

EB Well, I'll take the end of your question first. You know, Lou, we have had, over time, bills in our state legislature along the lines of IS200 and then last…a year and a half ago now, one of the state representatives who's running tried to get a voter referendum…ballot referendum going that wasn't able to meet the deadline along the lines of IS200. So, I think that the first answer is…these issues are alive and well in Michigan. And, I think that we're not asleep at the switch. But, you know the University, I think, has in its strong defense of our programs and the importance of these programs, has really helped to voice within this state, the importance of these programs. Not only to society at large, but particularly to the State of Michigan. I mean there's 70% of our students are students within the state and I don't expect that we will stop engaging in that kind of debate. What role we would take if something really gets going here, I think remains to be seen.

M Jonathan.

JA Let me just respond that what happened in Washington is a classic example, along with California's Proposition 209, of how to use these tools very effectively. The other side did this. Language is key here in these very simplistic propositions. If you use the word 'preferences', you know, we shall not have any preferences based on race or gender, et cetera, that always passes. That always gets the majority vote in favor of it. If you use language instead, that says we believe in equal access of equal opportunity or we believe in affirmative action for women and minorities…that always garners a majority vote. And in fact, there have been polls in Washington State that were done not long ago with overwhelming percentages in favor of that kind of language.

It's interesting that one of the strongest opponents of Proposition 200 in Washington State were the largest employers in the state, because they felt that diversity coming out of their institutions of higher education was critical to their own success in recruiting and getting the kind of people that they want that knew how to deal with a global marketplace. But, the proposition was so simplistic and uses language to great effect that of course, people are going to vote against preferences, because that ties it in with the concept of merit. Somebody's being preferred, getting something that they don't deserve. So, I think that the key there is language. And, in fact, in California now, there's actually an effort by some of the proponents of Affirmative Action to come up with a new proposition with different wording and see if they can get a majority for that. So, this is not over and AAUP has been involved in some of those discussions in states around the country. But, I really think the key is language.

M Others. Carl?

Q [Carl Cohen] I'd like to address a question to Ms. Barry whose presentation was helpful in detail. We have here at the University, as we all know, a well-established policy. It's printed on all of our catalogs and our time schedules and we take pride in that the University is committed to a policy of non-discrimination by race. I'm sure that you share my pride in that policy. We print it on all of our documents…append it to our time schedules and our catalogs, everywhere. The University is committed to a policy of non-discrimination and admissions and education programs.

The present admissions policy of the University--not that pertaining to the litigation but the present policy--is one which award points for the various kinds of considerations, intellectual, geographic, socioeconomic. And, one of the things which points the reward is membership in a particular race. Twenty points toward the ninety-nine needed for admission--whether or not one is disadvantaged. Are you wholly untroubled--untroubled by the inconsistency between the award of points on the basis of race membership flatly, and the profession of non-discrimination by race in which we take great pride?

EB I won't…I can't, Professor Cohen, engage in this context…in a detailed discussion of the facts of our case. For the obvious reasons…

Q I'm not talking about the case. I'm talking about…

EB Well, just let me…I'm trying to give an introduction to my answer to your statement.

Q I can't hear you.

EB I'm trying to give an introduction to the answer to your question. So, I really can't get into a detailed discussion about our policies which are complex in nature. But, I do believe that the conscious consideration of race that we employ in our admissions policies, both in the Law School and in the undergraduate program are lawful and defensible, and not inconsistent with the policy of non-discrimination.

JA Just a couple quick thoughts on that concept. The discrimination statutes and the law as the courts have interpreted it, under the discrimination statutes and under the Constitution, when we talked about the compelling government interests, those are essentially exceptions, if you will, when race can be considered in various types of programs and is considered to be consistent with the discrimination statutes. That's why we have those concepts of remedying discrimination and diversity, which the courts have talked about. Those cases arise under the discrimination statutes, but the courts have said that there are circumstances when, wholly consistent with the purposes of civil rights statutes, you can consider race or a national origin as a factor. So, I think that's an important answer.

And the other thing that comes into play, when you think about this whole concept of merit and people deserving points for some things and not others. I've always found it very interesting that many of the opponents of affirmative action are not troubled by giving points for things like alumni preferences, which was Harvard's defense in a case a few years back, to an Office for Civil Rights complaint against their admissions program. They said, well, if you look for the preference for alumni…children of alumni…that explains our disparities, why white students get in in far greater numbers than other groups.

Well, how is that any more meritorious than race or any of a number of other factors? Or geography. That whole question of merit is something that in the academy we hold so dear, but we really haven't thought very deeply about it, I think, until recently, and that's been one of the benefits of this whole debate. But, I think that's something we really need to think about when we're thinking about what is it we're trying to do when we're putting together a class? Why are these different criteria important? And, it's not just, as I said, an individual's past achievement, but it's really what are people bringing in to the puzzle all together. What is the community gaining from having this variety in it? It's not just what each individual in isolation is bringing, but it's looking at that whole picture.

M Gene?

Q [Eugene Feingold] This is for Liz Barry. Do you think that the denial of intervention in the two U of M cases has anything to suggest about the attitude that the Judges bring to the cases?

EB No. I mean, that's my basic answer. No. They made their decision based on legal grounds.

M We're getting close to closure. We need one more question or comment.

Q [John Taylor] The question that's troubled me in the huge survey ___?____, it's my understanding in the past, and perhaps in the present, in applicants to the University of Michigan Medical School is not an issue in any of these cases. It's to your advantage to be from the Upper Peninsula. That the rationale for this is that if you come from the Upper Peninsula, there's a greater probability that you will return to the Upper Peninsula and practice medicine for the common good of the State. The people accept this and this has happened. Now, I suspect the similar argument could be made with respect to Black applicants from the City of Detroit. We can argue they are far more likely to practice in Detroit than people that come from Bloomfield Hills. But, I gather from your remarks that that will never be accepted. Why wouldn't I?

JA In fact that type of rationale on the basis of race hasn't generally been accepted by the courts. This idea that African American students are more likely to go back and serve African American communities, even though some studies here and there have actually said in fact that is true, the courts have again said under the strict scrutiny--remember race gets higher scrutiny than any other category--that you really have to be able to show that in a very concrete way. And, the courts just haven't bought into that. They said it's a stereotypical group-based assumption. But it is interesting that you're right. That with a lot of other factors, we freely accept that type of argument and the bar is raised much higher for race.

M Well, I thank you all for your attention. We certainly thank our two panelists, Liz and Jonathan. Thank you for coming all the way from Washington. We're adjourned.