The ACLU of Michigan contends that affirmative action is necessary to both:
- achieve educational diversity at the university; and
- level the playing field for students of color by offsetting the other discriminatory aspects of U-M's admissions process and by addressing the hostile environment on campus.
Michael Steinberg, legal director for the ACLU of Michigan, who observed the Appeals Court session said, “The future of diversity at the nations’ top universities hangs in the balance. It would be a national tragedy if the University of Michigan and other schools of its caliber become re-segregated.”
In 1998, the Michigan ACLU intervened in the lawsuit against the U-M undergraduate admissions program along with the NAACP Legal Defense and Educational Fund, Inc., the Mexican American Legal Defense Fund (MALDEF), Citizens for Affirmative Action’ Preservation (CAAP) and the National ACLU.
In December, 2000, U.S. District Court Judge Patrick Duggan ruled that U-M's undergraduate admissions program was constitutional because it was "narrowly tailored" to advancing the compelling state interest of creating a diverse student body.
In his opinion, Judge Duggan said, “The University Defendants have presented this Court with solid evidence regarding the education benefits that flow from a racially and ethnically diverse student body.” However, he later issued an opinion stating that the University could not justify affirmative action as a means to remedy past and present inequalities at the University.
On appeal, the legal team that included the ACLU argued that the U.S. Court of Appeals should affirm Judge Duggan's ruling on diversity, but reverse his ruling on affirmative action as a remedy for discrimination. As long as racism remains a problem there, the University ought to be able to consider race the affirmative-action policies were adopted in response to protests over discrimination on the campus.
Given the importance of the ruling and the likelihood that, whatever the decision, it will be appealed, the case will be decided by all full-time judges of the Sixth Circuit instead of the usual panel of three judges. Many believe that both the undergraduate and the law school admissions cases may eventually be decided in the U.S. Supreme Court.
“Affirmative action enhances the educational experience of all students and without it, higher education would suffer. Hopefully, the U.S. Court of Appeals, and ultimately the U.S. Supreme Court, will agree,” Steinberg added further.
Although the U-M Law School affirmative action case was tried before a different district judge than the judge in the undergraduate case, the law school appeal was heard immediately after the undergraduate case on Thursday. After trial in that case, U.S. District Court Judge Bernard Friedman, unlike Judge Duggan, held that the current law school admissions process was unconstitutional. A separate group of organizations that did not include the ACLU intervened in the law school case.