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Trying to join the fray

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Minority advocacy groups may win a voice in lawsuits challenging affirmative action at the University of Michigan.

On May 26, the U.S. 6th Circuit Court of Appeals put on hold the anti-affirmative action lawsuit brought by white plaintiffs against U-M’s undergraduate school, pending the appeal of 17 African-American and Latino high school students who are seeking to intervene in the case. A related suit against U-M’s law school was also put on hold last week until the court decides whether to allow the intervention of 41 current and potential law school students, mostly minorities.

U.S. District Court judges have denied both groups’ requests for intervention, rejecting arguments that U-M officials wouldn’t adequately represent minority interests in the cases and that minorities would suffer the most if the university were to eliminate racial preferences in its admissions. Both groups were scheduled to appeal those rulings June 8, before the 6th Circuit Court in Cincinnati.

Godfrey Dillard, lead counsel for a civil rights coalition representing the high school students, says those trying to intervene in the suits have long argued that U-M would not use all possible defenses of affirmative action, particularly what is often a central defense – that affirmative action helps to balance an admissions process that already favors white applicants.

Dillard says U-M policies that put minorities at a disadvantage include emphasizing standardized test results, which have been shown to underestimate black student performance. He says white applicants are also more likely to receive points for advanced-placement courses, which are less abundant in inner-city schools, and are more likely to benefit from being children of U-M’s alumni.

Elizabeth Berry, the university’s deputy general counsel, acknowledges that U-M is not arguing to keep affirmative action based on already existing discrimination.

"We take race into account in our admissions programs in order to pursue the educational benefits of diversity, and that is the basis for our defense," Berry says.

The coalition representing the high school students includes the American Civil Liberties Union; NAACP Legal Defense Fund; Mexican-American Legal Defense and Education Fund; and Citizens for Affirmative Action’s Preservation, a group of minority lawyers and others.

White plaintiffs in both cases are represented by attorneys for the Washington, D.C.-based, Center for Individual Rights, a conservative organization which has filed similar cases in other states as part of an effort to end affirmative action nationwide.

Although U-M officials have not opposed the interventions, which were requested early last year, Dillard says they have also declined to address whether the university is capable of adequately representing minority interests in the cases.

Dillard says that question was answered recently when the university and CIR both requested summary judgments in the cases, each claiming they had already presented enough evidence to win both cases without a trial. That, he says, made it clear that the university wasn’t going to argue on the basis of anything except the value of educational diversity, and that minorities would have to be the ones to argue that affirmative action is needed to correct U-M’s bias.

"Obviously the 6th Circuit agreed," Dillard says.

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