'Race Still Matters'

Final exams have come and gone this year at the University of Michigan, but the school's hardest-won passing grade didn't arrive until last week. In a hotly debated ruling, a federal appeals court upheld the law school's admissions policy--which says race can be used as one of many factors in the decision process. Minority law students, already dispersed for the summer, excitedly traded e-mails about the ruling. Jesse Jackson showed up on the steps of Ann Arbor's towering brick-and-ivy student union to hold forth before a group of supporters waving placards. Administrators were ecstatic. "We're thrilled with the decision," said the law school's dean, Jeffrey Lehman. "It's gratifying to be vindicated."

But even as the Wolverines danced their touchdown shuffle, final victory remained a long way off. The ruling is thought almost certain to be taken up by the U.S. Supreme Court, where Michigan's policy will likely face a stiff challenge from conservative justices. Lower courts have been divided over the issue of race in school admissions in recent years. And while preferences may have carried the day, the decision thrusts Michigan squarely into the cross hairs of one of America's most divisive debates. "Race still matters in America," declares B. Joseph White, Michigan's interim president.

The Michigan controversy stems from a 1996 admissions decision. Barbara Grutter, then a 43-year-old health-care specialist with a 3.81 undergraduate grade-point average, sued Michigan after she was rejected by the law school. Grutter's lawyers, citing admissions documents obtained in Freedom of Information requests, argued that she would have been accepted had she been a minority applicant. In March 2001 Grutter won her case when a federal court declared Michigan's policy to be illegal. The decision stunned black, Hispanic and Native American students, who compose 13 percent of the campus population. "People were crying," says Beth Kronk, 24, one of a handful of the law school's Native American students. "My professor had to stop class."

When the Cincinnati appeals court overturned that ruling last week, the result came along with a bitter feud. Emotions ran so high that one justice, Danny Boggs, took the unorthodox step of airing a nasty internal spat during his dissent, implying that the chief justice delayed the process for political reasons.

Grutter's lawyers argued that Michigan's policy goes far beyond the Supreme Court's landmark 1978 Bakke decision, in which the court rejected outright quotas, but appeared to indicate that race could be used as a "plus" factor in admissions. Terry Pell of the Center for Individual Rights, whose lawyers represent Grutter, derides Michigan's policy as "racial engineering" more aggressive than the court ever intended. But last week's ruling argued that the school was justified in seeking a "critical mass" of minority students who "do not feel isolated or like spokespersons for their race." Travis Townsend, 23, remembers being comforted by the presence of other black students as he debated a racially charged case in his first-year criminal-law class. "Nobody wants to be the lone soldier," he says.

What would happen if the Supreme Court forced Michigan--where 80 percent of last year's freshmen law-school class was white or Asian--to abandon its policy? "The best predictor is to look at UCLA or Berkeley," says Lehman of the selective California schools that eliminated affirmative action in 1996. Minority enrollment there plunged after the state's ballot initiative. "Under a colorblind system, the numbers fall dramatically," Lehman adds.

Grutter has already pledged to appeal to the Supremes. And the same Sixth Circuit Court of Appeals will likely rule in the next few weeks on a separate but similar suit regarding Michigan's undergraduate- admissions policy. By late last week in Ann Arbor, the protesters had gone home and left the school's main quad empty and quiet. But the national debate over affirmative action shows every sign of carrying on.