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As Fisher Decision Approaches, MLaw Panel Looks at Affirmative Action

By John Masson
March 18, 2013

Ten years after the Supreme Court upheld the flexible use of race in Michigan Law's admissions policy in Grutter v. Bollinger, affirmative action is once again on the high court's agenda with Fisher v. University of Texas.

So Michigan Law's Education Law and Policy Society jumped at the chance to organize a panel discussion Friday of the affirmative action universe over the past decade.

The lunchtime panel, introduced by Dean Evan Caminker and moderated by Senior Assistant Dean Sarah Zearfoss, '92, comprised affirmative action experts from several disciplines: Michigan Law grad and Emeritus Prof. Richard Lempert's area of emphasis is applying social science research to legal issues. Liz Barry, '88, was U-M's primary in-house lawyer on the Grutter case and now directs U-M's Life Sciences Institute. Theodore Spencer is U-M's associate vice provost and executive director of undergraduate admissions. And Donna Snyder is U-M's associate general counsel.

Each made key points, with Dean Caminker introducing the panel by talking about some of the strategic litigation decisions behind the Grutter case, and behind Gratz v. Bollinger, a concurrent case involving Michigan's undergraduate admissions policies.

The Supreme Court decided Grutter in the Law School's favor in 2003, although Proposal 2—a statewide ballot initiative—passed in 2006 and effectively undid that holding, preventing continued use of race as a factor in admissions at Michigan's public universities. Both Grutter and Gratz will get renewed scrutiny when the Fisher v. University of Texas case is decided, Dean Caminker said.

"We will learn probably in late June what the Supreme Court's current view of the Grutter and Gratz rulings are," he said. Among key points discussed by panelists:

  • Until Gratz and Grutter, no one had really developed the research case that proves the benefits of affirmative action. The University of Michigan, one of the nation's preeminent universities for the social sciences, was able to do the research that helped support the strong stand Michigan took in defending its admissions policy.

  • Income isn't a proxy for race. Efforts to use income as a factor to increase campus racial diversity aren't effective, simply because, as Prof. Lempert observed, there are many more poor whites than poor members of any other racial group. In short, socioeconomic diversity is not the same as racial diversity.

  • Michigan's Proposal 2 ballot initiative means, according to Dean Zearfoss, that "the best policy to have is the policy that we had," even after the removal of race as one of the factors. The Law School's holistic approach takes in every other aspect of an applicant's history, provides great flexibility, and makes for a better, more nimble policy, she said.

  • The panel was cosponsored by the Michigan Law branches of the American Constitution Society, the American Civil Liberties Union, the Frank Murphy Society, the Black Law Students Alliance, and the Women Law Students Association.

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