Un-Appealing – According to this report in the Chronicle of Higher Education, the University of Michigan will request the Supremes not to hear an appeal of last May’s Sixth Circuit decision upholding racial preferences in admissions to its law school. (Link requires subscription)
It is of course not surprising for a winning party to attempt to sit on its victory and not risk reversal in an appeal. Even where great principles are involved — here, preferentially induced diversity vs. the principle of non-discrimination — it is not so surprising for even so high-minded an institution as a university to prefer protecting its own precious programs and prerogatives instead of risking them for the possible reward of having the Supreme Court impose their preferences on the entire country. (The Sixth Circuit ruling applies only to Michigan, Ohio, Kentucky, and Tennessee. The Fifth Circuit, including Texas, Louisiana, and Mississippi, has reached the opposite conclusion, barring racial preferences.)
I find it noteworthy, however, that virtually all of Michigan’s supporters in the higher education arena are endorsing its decision to protect its own preferences rather than invite the Supreme Court to protect them across the nation.
Thirty-eight education associations that had co-signed a friend-of-the-court brief supporting Michigan’s case before the appeals court, back the university’s current move, said Sheldon E. Steinbach, vice president and general counsel at the American Council on Education. The university would be unwise to risk its appeals-court triumph, he said. “They have a Big Ten victory, and there’s no reason to go for an NCAA championship.”
One of Michigan’s allies, though, will file its own request for the Supreme Court to hear the case. Miranda K.S. Massie is lead counsel for a group of third-party students who joined the case at the lower-court level. She said that racial integration in higher education has suffered under a number of recent court decisions, and that while the Sixth Circuit’s decision was correct, the Supreme Court should review the case to make affirmative action legal nationwide.
The Supreme Court may well decide to hear an appeal despite Michigan’s opposition, and perhaps the widespread fear of what it might decide should be taken as a hopeful omen.
For now, I eagerly await the Bash-Man‘s take on this.
