REPRESENTING THE STUDENT INTERVENORS IN GRUTTER
Miranda Massie
Scheff & Washington, P.C.

The Supreme Court’s June 23 decision upholding affirmative action in higher education admissions is a historic victory for the growing new civil rights movement and for the principle underlying Brown v. Board of Education. It opens up the prospect of progress toward equality throughout our society, and calls civil rights activists and lawyers to action in that struggle. And it shows how supporters of integration turned a severe problem-the sustained and conspiratorial attack on civil rights gains by a handful of wealthy segregationists and right-wing ideologues-into an opportunity both to rebuild the movement that brought us civil rights gains in the first place and to shift the center of gravity of a national debate.

When the lawsuits against Michigan were filed in late 1997, most observers, including most affirmative action supporters, believed that affirmative action was doomed. The Michigan litigation was the culmination of a protracted and well-funded assault on affirmative action. Right-wing entities including the Center for Individual Rights (CIR), which brought the Michigan suits, had won some important victories and projected a mood of brazen boldness-for instance, shamelessly appropriating the words of Martin Luther King against affirmative action and other civil rights advances. As the Michigan cases made their way up to the Supreme Court, CIR staff repeatedly expressed confidence they would achieve their basic ambition: the defeat of race-conscious admissions, which, they hoped, would then facilitate the defeat of all attempts to recognize and redress racism in American society. Given the current Court’s extremely conservative character and its reliable majority against civil rights measures-that is, given the extent to which it is a CIR Court-the defeat dealt CIR and its fellow-travelers at the Court is a bitter one.

In contrast, our victory, given the odds we faced, is all the sweeter.

In March 1998, activists in the Coalition to Defend Affirmative Action and Integration and Fight for Equality By Any Means Necessary (BAMN), an organization founded two years before in California, intervened in the Michigan Law School case, Grutter v. Bollinger. Joining BAMN were two other coalitions, United for Equality and Affirmative Action (UEAA) and Law Students for Affirmative Action (LSAA) and 41 individual intervenors-current and aspiring law students who were black, Latino, Asian-American, Arab-American, Native-American, and white. My firm represented the Grutter intervenors, and I served as lead counsel.

Our main goals in intervening were threefold: first, to use the attack on affirmative action as an opportunity to air the truth about race and racism in America in a court proceeding that promised to receive media and public attention; second, to make a holding for the University more likely by supporting its diversity arguments and supplementing them with arguments for integration and equality, which are deeper and truer; and third, and most importantly, to use the litigation as a means of inspiring, galvanizing, and mobilizing a new generation of civil rights activists and leaders-a new civil rights movement. In practice, these goals overlapped completely.

CIR’s case was simple, fraudulent, and familiar to students of eugenics and of American racism more generally. CIR hired an expert who found far-flung ways of pointing out what everyone already knew: the average LSAT scores of black and other minority admitted applicants were lower than those of white admitted applicants. To a lesser extent, the same was true of undergraduate GPA, the other major admissions criterion. The basic legal claim being made was that black and other minority students are less qualified and deserving than white students: the old racist canard of black intellectual inferiority. CIR’s claim depended absolutely on a false premise that CIR never even tried to prove: that LSAT scores and grades are race-neutral measures of merit.

At trial, the Grutter student intervenors proved the contrary. Admissions criteria for law schools in the United States are saturated with racial bias. This is especially true of the LSAT, which gives white law school applicants major unearned advantages over their black, Latino, and other minority peers. We introduced a national matching study to document the extent of this bias and also offered testimony explaining its severity and its causes. We also showed that the undergraduate grades of minority law school applicants are artificially depressed by the hostile racial climate on the majority white campuses from which students of all races are most likely to apply to law school. In short, the intervenors proved that absent affirmative action, law school admissions would operate as a rigid and systematic double standard, discriminating unfairly against black, Latino, and other minority applicants and giving white applicants decisive undeserved advantages.

The intervenors also showed that affirmative action is necessary to the struggle for integration in higher education and, by extension, in society as a whole. Prior to the middle 1960’s to early 1970’s, when American universities, under pressure from the civil rights movement and often in response to popular campus strikes led by black students, first adopted affirmative action programs, schools like the University of Michigan Law School were overwhelmingly white, overwhelmingly male, and overwhelmingly reserved for the economically well-off. Affirmative action operated as a desegregation plan for higher education by partially offsetting the white privilege and the racial bias that kept elite schools virtually all-white. This dynamic broke down the old boys’ system previously in place and opened higher education up to women and working-class students of all races. The gains made toward integration were modest but meaningful. In California and other jurisdictions where affirmative action had been eliminated, the resegregation of higher education had been rapid and devastating.

Throughout the litigation, BAMN and the new civil rights movement continued to mobilize. Over the course of the trial, for example, high school students from Detroit and college and law school students from Ann Arbor picketed and rallied outside the courthouse and crowded inside to hear testimony from student witnesses and a roster of highly distinguished experts for the intervenors such as John Hope Franklin and Gary Orfield. BAMN organizers and spokespeople were invited to speak at countless campuses and in countless high school classrooms. When the appeals were heard, BAMN organized a demonstration of thousands of students from throughout the Sixth Circuit to march and rally in a freezing, driving rain. On April 1, the day the Supreme Court heard oral argument in both Grutter and Gratz, BAMN spearheaded a demonstration that brought tens of thousands of students from across the nation-from Houston, San Francisco, Detroit, Albuquerque, Atlanta, and Philadelphia, among other places-to gather at the Supreme Court and march to the Lincoln Memorial for a dynamic and inspiring rally that received very positive national press coverage. April 1 was at once the culmination of years of organizing and the first moment in a new phase of civil rights struggle in the United States. The new civil rights movement was realized and inaugurated on a national stage.

The opinions issued by the Court reflect the changed political and social landscape in several respects. Justice O’Connor’s majority opinion in Grutter is broader and deeper than the Bakke opinion by Justice Powell that she revisits - not a whittled-away version of diversity, as some projected, but a much more robust one. She goes beyond Bakke to frame the question partially in terms of Brown, 2003 WL 21433492 *16; she explicitly links diversity to “our Nation’s struggle with racial inequality,” 2003 WL 21433492 *19 and to the “goal of equality itself,” *21 (citation omitted); she lays the foundation for extending the diversity rationale to the employment context, *14; and she makes clear that integration is necessary for social legitimacy, *16. The dissenting opinions in Grutter also express how much the context for this question has been changed: most notably, not one of the dissenters takes CIR up on its fraudulent meritocracy case. Not a single Justice champions CIR’s dishonest manipulations of the credentials gap. Keeping CIR’s racist nonsense out of the U.S. Reports is in itself a significant achievement.

The victory won in June is a major turning-point. Civil rights advocates must exploit our advantage fully and take the offensive against the next wave of right-wing attempts to turn back the clock. By continuing to be aggressive and creative in building the new civil rights movement, in litigating civil rights cases, and in linking the two, we can build on the promise of Brown, the promise of integration, and press our society toward equality. I hope that readers of this special issue of JURIST will visit BAMN’s website at www.bamn.com and join the struggle.

September 5, 2003