A Case For The Supremes: Will They Take Action?

By Amanda Bower

It has been almost a quarter of a century since the U.S. Supreme Court agreed to hear an affirmative-action case about college admissions--but the University of Michigan Law School may break the drought. Last week a bitterly divided federal Sixth Circuit Court of Appeals ruled 5 to 4 in favor of the school's race-conscious admissions policy. Lawyers for Barbara Grutter, a white woman whose Michigan application was rejected, are already working on her appeal. "It's time for the Supreme Court to weigh in and explain better what the law is in this area," says Terence Pell, CEO of the Center for Individual Rights, which is funding Grutter's legal battle.

Since 1978, lower courts have relied on a somewhat tortured Supreme Court ruling that struck down quota systems and sent white, would-be medical student Allan Bakke to school. But it also ruled that universities could continue to consider applicants' race in the "compelling interest" of diversity. Lower courts have viewed Bakke differently: pro-affirmative action universities in the Fifth Circuit's jurisdiction feel legal victories are unlikely, but those in the Sixth are heartened by the Michigan case. The fact that lower courts have interpreted Bakke in divergent ways may lead the Supreme Court to hear Grutter's appeal, experts believe.

Meanwhile, the Sixth Circuit is facing another conflict: Judge Danny Bloggs, in an appendix to his dissenting opinion, implied that court policy had been contravened in order to select judges favorable to Michigan's cause. His claim was a "new low," said Sixth Circuit colleague Judge Karen Nelson Moore, and would irreparably damage "already strained working relationships." Could the Supreme Court fix those too? --By Amanda Bower