Applicant's Challenge Emerges as Pivotal Affirmative Action Case
Washington Post Staff Writer
Friday, December 05, 1997; Page A01
ANN ARBOR, Mich. Jennifer Gratz applied to the University of Michigan two years ago hoping that her strong record as an honors student, a high school leader and a community volunteer would be all she needed to get admitted to the prestigious campus.
It wasn't. Michigan turned her down. And now Gratz is convinced she knows why: She is accusing the university of rejecting her because she is white in order to make room for minority students with the same or lesser grades. In a lawsuit filed recently against the school, she says she has stark evidence from Michigan's own admissions documents to prove her claim.
Her case is emerging as the next pivotal battle in the growing campaign that conservative groups are waging against affirmative action on the nation's campuses. The dispute could decide whether universities can keep the practices that many have relied on for a generation to create racially diverse enrollments.
"The policies are wrong," Gratz, the daughter of a police officer, said in an interview at her parents' home in a blue-collar suburb of Detroit. "I believe I was racially discriminated against. It's probably happening to a lot of other people who are applying to colleges, and it shouldn't keep going on."
In the past two years, two of the nation's largest public universities, California and Texas, have been forced to stop using racial preferences, and in each state there are signs that minority enrollment is plummeting. Neither of those new bans, however, affects colleges elsewhere.
Gratz's lawsuit could. Opponents of affirmative action are calling it their next best chance to overturn a 1978 Supreme Court ruling, University of California Regents v. Bakke, that allows universities to count race as one of many considerations when choosing students.
But Gratz, 20, alleges that Michigan does much more than that. She contends it has created an admissions system that pivots entirely on race and gives extraordinary advantages to minorities with the same academic credentials as white students.
Her claims also have thrust her to the forefront of a well-organized assault against racial preferences that extends far beyond university campuses.
Sensing growing sympathy from courts, opponents of affirmative action are urgently pursuing cases to dismantle it, at colleges and in the workplace. Recently, civil rights groups who feared an unfavorable Supreme Court decision on the issue financed a last-minute settlement of another prominent case involving a white teacher in Piscataway, N.J., who was dismissed to save a black teacher's job.
That deal prevented the court from issuing a new precedent on affirmative action, and it is forcing those who oppose the policy to find another potential test case.
Gratz is being represented by the Center for Individual Rights, a Washington firm that was the legal force behind California's Proposition 209, which banned the use of racial preferences in that state. The firm also won a case in federal court last year that stopped the University of Texas from using race in admissions. This week, it filed a separate lawsuit against the University of Michigan's law school, alleging that admission policies there are unconstitutional.
The Gratz case will be the center's next showdown. But Michigan adamantly disputes her claims. It also has hired a Washington law firm, Wilmer, Cutler & Pickering, to defend its admissions practices, which are similar to many other universities.
Here on Michigan's campus, the case is provoking searing racial debate. There was a week-long series of forums on the issue recently, and in student government elections some candidates are running as the Defend Affirmative Action Party. Many faculty and students say they fear that the progress the university has made on minority enrollment it has nearly doubled since the 1980s is in great danger.
"The stakes are very high, for all of higher education," said Lee Bollinger, Michigan's president. "We are doing what the Supreme Court has said we can do. The image the other side presents is false. Their arguments are fundamentally flawed."
Gratz's suit is based on confidential university documents that a professor here obtained through the Freedom of Information Act. The documents show ways in which Michigan uses race in the process of choosing a freshman class.
First, it plots the college exam scores and high school grades of prospective students on a grid. Then it fills each point on the grid with codes that signify whether a student should be admitted, rejected or placed on a waiting list.
To Gratz, the grid reveals the dominant role race plays in admissions. In many instances, applicants whose grades put them on the same spot on the grid are judged differently based on whether they are white or a minority.
The documents, for example, suggest that a white student with a Scholastic Aptitude Test (SAT) score of 1000 and a grade-point average of 3.2 (on a 4.0 scale) should not be admitted. Black or Hispanic applicants with the same scores are recommended for admission.
But Michigan insists that the grid is used only as a guide for admissions officials who ultimately base decisions about applicants on a range of factors from race to a student's community activities, family background, even athletic ability.
The grids, they contend, are merely one tool to help the university sort through an annual avalanche of applications for spots in its freshman class. Last year, Michigan received about 19,000 applicants about 1,800 were from minorities for 5,300 slots.
Gratz's attorneys scoff at that defense. "This has strong features of a dual system," said Terry Pell, a lawyer for the Center for Individual Rights. "When students begin the admissions process at Michigan, only three things matter their high school grades, their college test scores and their skin color. Their race is a determining factor."
The Michigan case began to take shape last summer. Republican state lawmakers who oppose affirmative action issued public calls for students who believed they had been discriminated against by the university to file suit.
The Center for Individual Rights chose Gratz, now in her junior year at another public university in the state, to be the lead plaintiff from a group of more than 50 other students who responded to the lawmakers' request.
Gratz graduated from high school with an "A" average. She had been a student council leader, a math tutor, an aide to senior citizens and a homecoming queen. She also posted good marks on a college-entrance exam.
But since the number of students seeking admission to Michigan is so overwhelming, university officials say they have no choice but to turn away many talented applicants for reasons that have nothing to do with race.
The competition in admissions has grown at the same time the university has been under more pressure to improve its minority enrollment, particularly the number of black and Hispanic students. Michigan's black enrollment, about 9 percent, is still lower than the 14 percent of state residents who are black.
In general, blacks and Hispanics score lower on college exams than whites and Asians. That discrepancy is evident across the country, and educators say it occurs because disproportionately high numbers of blacks and Hispanics come from disadvantaged families or mediocre schools. Many colleges say that until that chronic gap is closed, they must use race as a factor in admissions to ensure a racially diverse student body.
Today, about 25 percent of Michigan's students are minorities. A decade ago, the figure was about 13 percent. University officials credit the increase to aggressive recruiting and to using race in admissions. But they deny that their tactics are bringing unqualified students to the campus. About 70 percent of black students here graduate, a rate comparable to many other public universities. About 85 percent of white students at Michigan graduate.
"The virtues of having diversity on our campuses should be clear by now," Bollinger said. "If we lose our ability to create that, we will move back toward a re-segregated system of higher education."
Gratz and her allies argue that the choice Michigan is presenting either accept its current methods or be left with a white campus is a false one. As evidence that there may be middle ground, they point to alternatives emerging in California and Texas, where racial preferences have been banned.
In California, universities are expanding their work in the public schools of minority communities to develop more top applicants. They also may stop using the SAT in admissions. Texas is requiring that students who graduate in the top 10 percent of their class be admitted to public universities.
"We're not saying universities shouldn't worry about diversity," Pell said. "They just shouldn't prematurely conclude that without racial preferences it's automatically going to be a disaster."
On Michigan's campus, the debate is raw and emotional. One recent night, more than 100 students gathered in an auditorium and spent two hours grappling with the subject. Those who opposed Michigan's policies said the disparities in test scores between whites and minorities should be addressed long before college.
"I think we all have the same goal," said Greg Hillson, a junior. "But this way destroys the incentive for fixing the problem much earlier. We have to attack the problem at the source, not with racial preferences."
Other students insisted that the need to remedy past discrimination on college campuses, and in society at large, is as urgent today as it was a few decades ago.
"We've had affirmative action for about 30 years, and African Americans have lived in this country oppressed for 400 years," said Delbert Sanders, a political science major. "Walk through the campus today you don't see too many African Americans. And yet I ask you, are you saying that even this is too many?"
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