feature

 

BY EUAN BEAR

- s OITM hits the streets,
retired University of
Michigan Law School

Professor David Chambers will be
glued to news reports. On April 1,
the Supreme Court of the United
States hears oral arguments on one
of the most hotly contested cases it
has handled in the last 25 years:
affirrnative action. And among the
stacks of amicus curiae briefs in the
case (more than 70 at last count)
will be one that out gay professor
David Chambers helped to write.

Chambers graciously
agreed last month to discuss the case
and his part in one of the many ami-
cus briefs in an interview at his
home in Hartford Vermont.

The Supreme Court case
Grutter v. Bollinger examines the
University of Michigan’s law school
admissions policies. Barbara
Grutter, a white mother of two in i
her 40s, applied to the University of
Michigan Law School with the goal
of specializing in healthcare issues.
Although Ms. Grutter was “an A
student in college who scored in the
86th percentile on the Law School

David Chambers began
teaching at Michigan Law in 1969.
“A few years before that, there was
just one black student among the
thousands of white faces,” he
remembers. “There were more
blacks in the 1930s in the law
school than there were in the 60s.
The faculty saw that there was
something wrong with this picture
and began to take steps to remedy
it.”

The first step was an
aggressive recruiting campaign
among seniors at what are now
called “historically black colleges.”
But, Chambers said,’ “recruiting
alone wouldn’t make enough differ-
ence.  We began a formal pro-
gram to admit larger numbers of
minority students, and that meant
giving some students a break on the
numbers,” the scores they had
achieved on standardized tests and
their grade point averages.

“In the rnid-70s, there
were 20 black students per year
admitted to the law school. By the
time of the litigation [I997], there
had been 1000 black students, a few
Latinos, and 60 Native Americans.
Our position is that lawyers need to
reflect the population they serve,”

Beyond Bakke:
University of Michigan Law School Makes
Its Case for Saving ‘Race-Conscious’

Abaue,n-IlndllrrivonityofNIidIiganLawSchooIPmfeuorDavidchambersntworkhIHarlIord.VT.

Admission Test," according to a
report in The New York Times, her
application was not accepted in June

‘ of 1997. Michigan’s other public

university law school at Wayne
State welcomed her as a student, but
she chose not to matriculate there
because its concentration in health-
care law was not as extensive. '

Grutter, along with two
students who had unsuccessfully
applied to the University of
Michigan as undergraduates,
answered an ad placed by several
Republican state legislators and the
Center for Individual Rights (CIR)
looking for plaintiffs who would
help them challenge the concept of
race-conscious admissions policies.
CIR filed suit against the law school
in December, 1997, claiming that
the University of Michigan’s admis-
sions process violates the Equal
Protection clause and Title 6 of the
1964 Civil Rights Act.

The other name on the
case belongs to Lee Bollinger, presi-
dent of the university and former
dean of the law school.

According to the amicus
curiae (friend of the court) brief
filed by the Michigan Black Law
Alumni Society, the issues in the
case come down to whether racial
diversity in a student body “serves a
‘compelling’ state interest,” and
whether the admissions system cur-
rently in question is “properly ‘tai-
lored’ to advancing such interest.”
The brief in which Chambers played
a part argues yes on both counts.

Chambers explained.

' The Grutter case is the lat-
est in a series of attempts to over-
turn a previous Supreme Court rul-
ing in 1978 in the case of the
Regents of the University of
California v. Bakke. In that case,
four Justices supported the argument
that race could be considered in
admissions in order to balance the
lingering effects of discrimination.
“Only Justice Powell, writing for
himself, argued that race could be
used only to achieve a diverse stu-
dent body,” recalled Chambers.
Powell’s “very narrow” ruling — dis-
allowing quotas but allowing diver-
sity as a goal — became the de facto
standard with which “virtually all
elite universities, selective colleges,
law schools, and medical schools
complied.” said Chambers

“The Bakke ruling has
been under attack on three fronts:
First, Powell’s opinion was not the
majority opinion. Second, there is
no definition of ‘quota’ in Powell’s
opinion. Third, it did not address
affirrnative action programs
addressed to other groups, such as
Latinos, Native Americans, Italian-
Americans, Irish-Americans.”
Chambers suggested that the attacks
on Bakke have come primarily from
conservatives, who say the standard
should be “race-blind.”

A federal circuit court in
Texas ruled that the Bakke ruling
should be “held in abeyance, that it

was not ‘good law.”’ In California, '

first the university regents eliminat-

ed affirrnative action programs, then
voters ratified the decision. The
number of minority students in those
schools dropped drastically.

Two lawsuits have been
brought against the University of
Michigan, one for the undergraduate
university and one for the law
school. The law school lost its initial
trial in 2001. “The judge held that
Bakke was not good law, and any-
way, the admissions program was in
effect a quota,” Chambers said. In
2002, a federal appeals court "
reversed that ruling and upheld the
law school’s admissions program as
permissible. “They said that Bakke
was still controlling until the
Supreme Court rules otherwise.”

. Which brings us to the
present, and the oral arguments in
the case April 1, with a ruling
expected in late June.

Basically, if two people —
one white and one minority — with
the same LSAT scores, grade point
averages, outside interests, and lead-
ership activities, apply to the
University of Michigan Law School,
the minority applicant is more likely
to be accepted than the white appli-
cant. And, says Chambers, that has
to be okay, until race truly doesn’t
matter any more and there are as
many minority lawyers, judges, doc-
tors, and MBAs as there are minori-
ty people in society. “Right now, 15
percent of our students are Black,
Latino or Native American. Without
affirmative action it would be two

- percent.”

Admissions

David Chambers became
involved in the Supreme Court case
by way of a study he helped plan
and conduct of all living law school
minority graduates. “We were plan-
ning this study two years before the
litigation,” explained Chambers.

According to the written
brief, Chambers and two colleagues
mailed a seven-page Professional
Development Survey to more than a
thousand minority law school alum-
ni from the years 1970 through
1996. Another 935 white graduates
from the same years also received
the survey.

The study results showed
that both minority and white gradu-
ates believe. in the importance of
ethnic and racial diversity in their
classroom experience. The percent-
age of white graduates who held that
belief increased as the numbers of
minority students on campus
increased.

Perhaps more importantly,
the study showed that both white
and minority graduates achieved
similar career accomplishments

from clerkships to partnerships, and ‘

satisfaction with their careers. The
finding counters the argument that
affinnative action results in “less
able” or “less successful" profes-
sionals.

In addition, more minority
graduates volunteered their services
to their communities on nonprofit
boards or in politics. Minority grad-
uates performed more hours of pro-
bono legal work than white

graduates.
And, finally, the study
showed that minority graduates had

among their caseloads a higher pro- _

portion of nonwhite clients than
white graduates did, serving the
state’s “compelling interest” in
“improving the delivery of legal
services to historically under-repre-
sented minority groups."

As of last month, a dozen
or so amicus briefs had been filed j
supporting the suit of the Center for
Individual Rights and Barbara
Gnrtter. Perhaps 60 had been filed
supporting the law school, ranging
from law students, Fortune 500
companies, the United Auto
Workers, other universities, and
even a group of retired generals —
including Norman Schwartzkopf and
John Shalikashvili.

“What’s at stake,”
Chambers summarized, “is affinna-
tive action at all public and private
institutions. If affirmative action
ends in law schools, there will be a
decline by 70 percent in the num-
bers of minority students.

“I’m scared. I don’t know
whether we‘ll win. Three members
of the Supreme Court are likely to
be hostile — the Chief Justice
[William Rehnquist], [Antonin]
Sca,l_i.a.. and [Clarence] Th9r.nas,- F99‘
might be sympathetic 4 [John'Paul]L
Stevens, [David] Souter, [Stephen]
Breyer, and [Ruth Bader] Ginsberg.
Two are probably undecided -
[Sandra Day] O’Connor and
[Anthony] Kennedy. The problem -
will be how to reach O’Connor,
since Kennedy is most likely leaning
the other way," he mused.

“I had dinner last week
with [a friend] and her two sons.
One son, who is liberal politically,
was troubled by the idea that he
could have the same grades and SAT
scores as a minority student, and the
minority student would be chosen '
instead of him. He felt that merit
should count, not race. It’s a moral
argument that has some force.

“In the oral arguments,” he
added, the plaintiffs will expand on
that theme and “probably offer the
personal circumstances of Barbara
Grutter.”

Asked about whether this
case has relevance for the gay, les-
bian, bisexual, and transgender com
munities, Chambers said no. “There
are no affirrnative action policies .
with regard to sexual orientation —
there's no real need to give gay men:
or lesbians a break on the numbers.
And being a gay activist is consid-
ered a positive factor. an indication
of leadership."

But having said that, he
added, “Gay students see that what’!
at stake is white male supremacy —
and the creation of a diverse, multi-
cultural society in which difference
is welcome. Oppression based on
race is the most flagrant and lrannfu
that our society has known. Even
with all that has been done to gays
and lesbians. we havetft been slave
or treated as intellectually inl‘erior.”fi

In the final analysis. Davi
Chambers concluded. "lrrtitional

~diseriminz'rtlon is always wrong." V