Affirmative Action in Higher Education

Students of color-not university administrators-have the broadest, deepest and most urgent interests in preserving affirmative action. After all, when race can no longer be a factor in admission decisions, it is minority students who are denied access to higher education opportunities. Yet, students of color have too often been silenced and marginalized in litigation challenging affirmative action, with predictably deleterious consequences. For example, in the landmark Bakke case, the University of California (UC) had no interest in arguing that Allan Bakke may have been denied admission because the Dean at the UC Davis Medical School had the prerogative to reserve seats for the relatives of wealthy donors. UC also declined to present evidence that affirmative action was necessary to remedy its prior discrimination or to neutralize racial bias in admission criteria like standardized tests, since such evidence might expose the University to litigation from rejected minority applicants.

Despite these clear conflicts of interest, and while for decades leading scholars and advocates have recognized the importance of student intervention in affirmative action cases, it has been a real struggle to get minority student voices heard. Thus, in the Fifth Circuit's Hopwood decision -where the University of Texas Law School failed to develop a full record on its own (embarrassing) history of racial discrimination or its misuse of the LSAT-the court denied intervention.

However, in 1999 the Sixth Circuit overturned two district court decisions denying intervention in affirmative action lawsuits against the University of Michigan and its Law School. The Sixth Circuit was persuaded by the Intervenors' argument that the "University is unlikely to present evidence of past discrimination by the University itself or of the disparate impact of some current admissions criteria, and that these may be important and relevant factors in determining the legality of a race-conscious admissions policy." In Grutter v Bollinger, the University of Michigan Law School case, students of color and progressive White students intervened in order to have their voices heard, to shape the trial court record, to present their own experts, to contribute to the larger public debate and to build a student movement in support of affirmative action. Grutter and Gratz v. Bollinger, (the Michigan undergraduate case) currently have the highest likelihood of being granted certiorari by the U.S. Supreme Court.

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