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Highlights from the University of Michigan Cases
– Views on Affirmative Action –

by V.I. King
Glendale, California

Two lawsuits were filed against the University of Michigan in 1997, one by two students refused admission to the college (Jennifer Gratz and Peter Hamacher) and one by someone turned down by the law school (Barbara Grutter).

Over 150 legal briefs were filed in attempts to influence the outcome of the cases. The ideas expressed in those briefs -- from the left, right, and center -- give a glimpse of the soul of a nation at a crossroads, a country earnestly hoping to end racism but unable to agree on the path to that goal.

(Surprisingly, and sadly, the majority of the legal briefs made no significant mention of Asian Americans at or applying to the University of Michigan, nor of affirmative action’s impact on Asian Americans.)

While the briefs were sometimes very different, they did share a common seriousness of tone, reflecting the fact that the authors knew that history was being made.

In a nod of recognition to the genealogy of modern-day affirmative action, many of the briefs made reference to the case of University of California Regents v. Bakke, in which the U.S. Supreme Court held, 25 years earlier, that race could be used as a positive factor in admissions or hiring practices, but could not be the only factor. In the course of reaching that conclusion, Justice Lewis Powell’s opinion stated that the government had a compelling interest in promoting diversity, but no other member of the Supreme Court, at the time, explicitly supported such a position.

Supporters of affirmative action had hoped that the U.S. Supreme Court, in the University of Michigan cases, would issue a more positive and definitive statement than what Justice Powell said in Bakke about the importance of diversity as a compelling governmental goal. The majority of U.S. Supreme Court did just that, by explicitly stating that the use of racial preferences to foster diversity was acceptable -- however, Justice Sandra Day O’Connor added that such racial preferences should no longer be necessary in 25 years (by 2028).

Below are some excerpts -- short but interesting samples (1) -- from the main legal briefs of potential relevance to the Asian American community. (To better understand the nuances of each argument, the entire brief should be consulted.) A concise summary of the content of the U.S. Supreme Court’s opinions is available on the University of Michigan website

Gratz’s and Hamacher’s Brief

“The issues framed by this case present two fundamentally different visions of our country and hold out opposing prospects for its future. One seeks to realize “[t]he dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement.” [Citation omitted.] The other is based on a view not only that ‘race matters,’ but also that race should matter in the government’s treatment of individuals, now and indefinitely into the future.” Brief, at p. 15.

The University of Michigan’s Brief in Response to Gratz/ Hamacher

“Living, working, and learning with a racially diverse group of peers provides opportunities for a richer exchange of ideas -- whether or not explicitly touching on race -- that reflects a wider range of life experiences.” Brief, at p. 2

Grutter’s Brief

“Caucasian Americans and Asian Americans are treated as undifferentiated masses, receiving no preference for race or ethnicity, even though one could easily identify dozens of separate racial or ethnic groups contained in those broad categories.” Brief, at p. 43.

The University of Michigan’s Brief in Response to Grutter

“The Law School is training lawyers and leaders for a society in which, within the careers of its current students, white citizens will become a minority of the population. Those students need to learn how to bridge racial divides, work sensitively and effectively with people of different races, and simply overcome the initial discomfort of interacting with people visibly different from themselves that is a hallmark of human nature.” Brief, at p. 25.

Brief of Certain University of Michigan Students (Kimberly James et al.) in Support of the University

“In 1973, the Law School graduated 41 black students and its first Latino student. In 1975, it graduated its first two Asian- Americans, followed by its first Native American in 1976. The increasing number of black and other minority students cleared the way for the admission of increasing numbers of women of all races. [Citation omitted.]” Brief, at p. 6.

The Cato Institute’s Brief in Support of Petitioners Gratz/Hamacher and Grutter

“The ‘diversity’ justification is based on a host of assumptions that reflect outright racial stereotyping -- that only black students can provide the necessary critical perspective on the nation’s racist past, that only black instructors can teach African-American studies, that only black policemen can instill confidence and evoke a cooperative spirit in minority neighborhoods, that tolerance and the virtues of cultural diversity can be effectively communicated only by persons of the requisite skin color or ethnicity.” Brief, at p. 23.

The National Asian Pacific American Legal Consortium’s Brief in Support of the University

“...Asian Pacific Americans are not harmed by Michigan’s use of race-conscious admission procedures, even though Asian Pacific Americans are not specifically identified as under-represented minorities by those procedures. [We]...emphasize, however, that at other schools and other contexts, such as employment and public contracting, Asian Pacific Americans should be included in the category of under-represented minorities in affirmative action programs.The arguments of certain opponents of affirmative action that Asian Pacific Americans do not need such programs should be rejected because these arguments rest on the myth that Asian Pacific Americans no longer suffer from racial discrimination in American society and that Asian Pacific Americans have been able to succeed despite past racism and prejudice.” Brief, at pp. 3 to 4.

The Asian American Legal Foundation’s Brief in Support of Petitioners Gratz/Hamacher and Grutter

“Despite the fact that Asian Americans are considered culturally ‘different’ from other Americans and have historically experienced -- and continue to experience -- overt racial and ethnic prejudice, diversity-based admission schemes are almost always used to exclude Asian Americans from educational institutions... AALF is deeply concerned about the issues presented before this Court in Gratz and Grutter. By granting preferences to applicants from certain ethnic groups, the admissions programs of the University of Michigan college and law school place racial barriers before Chinese Americans and other ‘non-preferred’ individuals that are unjustified by any remedial purpose.” Brief, at p. 2.

Brief the American Jewish Congress, Central Conference of American Rabbis, Hadassah, and five other Jewish organizations in Support of the University

“It is important to note that diversity cannot be achieved strictly by considering the socioeconomic status of applicants. ‘Most poor people in the United States are neither black nor Latino, and many of the minority students admitted to college through race-conscious affirmative action are not poor.’ [Citation omitted.]” Brief, at p. 26.

Brief of the Center for Equal Opportunity, the Independent Women’s Forum, and the American Civil Rights Institute in Support of Petitioners Gratz/Hamacher and Grutter

“[The decision whether to use racial and ethnic preferences] precisely the sort of discrimination that must not be left to politics, academic or otherwise. We have seen institutionalized discrimination in whites (and Asians) in less than a generation, and racial spoils will always be attractive to many politicians and other state actors.” Brief, at p. 26.

Brief of 65 Leading “Fortune 500” American Businesses in Support of the University

“The population of the United States is increasingly defined by its diversity. Two years after Bakke was decided, the 1980 census showed that African Americans, Native Americans, Asian Americans, and Hispanics constituted 20% of the nation’s population. By 1999, those groups made up 28 percent of the population of the United States. And by one estimate, these groups will constitute almost half -- 47 percent -- of the United States’ population by the year 2050.” Brief, at p. 6.

The Center for New Black Leadership’s Brief in Support of Petitioners Gratz/Hamacher and Grutter

“Racial preferences invariably pit minority racial groups against one another. In the university context, black and Hispanic students are targeted for preferences, while Asian students suffer disproportionate disadvantage. Moreover, in our increasingly multi-ethnic society, bi-racial individuals often are forced to choose which group they belong to in order to determine their rights and opportunities.” Brief, at p. 6.

General Motors Corporation’s Brief in Support of the University

“Companies whose managers understand the importance of forging relationships with diverse communities...enhance their business opportunities. Author John Fernandez cites as one example General Motors’ closure of a $1 billion automotive deal with China. The deal was aided by China’s appreciation of the corporation’s prior outreach efforts to Asian-American employees and the Asian-American community.” Brief, at p. 14.

The U.S. Department of Justice’s Brief in Support of Petitioners Gratz/Hamacher

“[I]f the University genuinely seeks candidates with diverse experiences and viewpoints, it can focus on numerous race neutral factors including a history of overcoming disadvantage, geographic origin, socioeconomic status, challenging living or family situations, reputation and location of high school, volunteer and work experiences, exceptional personal talents, leadership potential, communication skills, commitment and dedication to particular causes, extracurricular activities, extraordinary expertise in a particular area, and individual outlook as reflected by essays.” Brief, at pp. 18 to 19.

Brief of 29 Former Leaders of the United States Armed Forces in support of the University

“Because racial diversity in higher education also is necessary to integrate the officer corps and to train and educate white and minority officers, it is essential to ensuring an effective, battle-ready fighting force. This is indisputably a compelling government interest. ‘It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.’ [Citation omitted.]” Brief, at p. 27.

The U.S. Department of Justice's Brief in Support of Petitioner Grutter

“[U]niversities may adopt admissions policies that seek to promote experiential, geographical, political, or economic diversity; modify or discard facially neutral admissions criteria that tend to skew admissions results in a way that denies minorities meaningful access to public institutions; and open educational institutions to the best students from throughout the State or Nation. These are race-neutral policies that have led to racially diverse student bodies...

In light of these race-neutral alternatives, respondents cannot justify the express consideration of race in their admissions policy.” Brief, at pp. 10 to 11.

(1) With regard to materials developed by the University of Michigan: Copyright by the Regents of the University of Michigan. Reprinted with permission.

About the Author: V.I. King is President of the Board of Trustees of Glendale Community College.

  • This article was first published in "Cause & Effects", An Asian American Political Journal, and is re-published with permission

Published in In Motion Magazine November 9, 2004.

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