On May 14 the U.S. 6th Circuit Court of Appeals ruled 5-4 that the race-conscious admissions policy at University of Michigan’s (UM) Law School is legal.

The decision overturned an earlier decision in which District Court ruled that the policy relied too heavily on race and that diversity, although a laudable goal, was not a compelling state interest.

UM had argued that race is one of many factors in its admissions process and that diversity improves the education of all students.

‘We find that the law school has a compelling state interest in achieving a diverse student body,’ the appeals court wrote in its opinion. ‘In considering race and ethnicity, the law school does not set aside or reserve seats for underrepresented minority students.’

The Supreme Court hasn’t spoken definitively on the issue of whether race can be used in determining admittance to institutions of higher learning since saying that it could in its 1978 Bakke decision upholding the admission policies of the University of Washington Law School. In that 5-4 decision, written by Justice Lewis Powell, the court said that while race could be considered – and thus the practice of affirmative action – racial quotas per se were illegal.

The right-wing campaign against affirmative action has accelerated in recent years, spurred on by its 1996 victory outlawing affirmative action admission policies at the University of Texas Law School.

The Texas school, like Michigan, argued that race-conscious admissions foster diversity. But the 5th Circuit Court in New Orleans ruled that while schools can consider an applicant’s economic and social background, race cannot be taken into account. The Supreme Court declined to consider the case.

It also refused to review a decision by the 9th Circuit Court in San Francisco that upheld the use of race in admissions and affirmed diversity as a compelling state interest at the University of Washington Law School.

Last August, the Circuit Court in Atlanta struck down the use of race in admissions in a University of Georgia case.

Because appeals of differing decisions in these cases have either been refused by the Supreme Court or abandoned by the universities, legal scholars say the UM Law School case stands a better chance of being heard by the U.S. Supreme Court.

Lee Bollinger, the incoming president of Columbia University and a former dean of Michigan Law School, said that ‘a ruling that race and ethnicity could not constitutionally be considered in admissions would be drastic and disheartening, threatening a decline in minority enrollment of as much as 70 to 75 percent.’

Ted Shaw, associate director of the NAACP Legal Defense and Eduational Fund, said, ‘What’s at stake here is the extent to which African-American, Latino and other minority students have access to highly selective universities, graduate and professional schools.’

Justice Powell’s biographer, John C. Jeffries Jr., who is now dean of the University of Virginia School of Law says that many African-American law students at Virginia, ‘would not be admitted except for race.’

But viewed in light of Virginia’s own state history and racial composition, the law school’s highly diverse student body is ‘a great victory for America,’ he added.

The author can be reached at pww@pww.org