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32 Lab. & Emp. L. 1 (2003-2004)

handle is hein.journals/laboemplo32 and id is 1 raw text is: Optim m was the most striking thing out Justice Sandra Day O'Connr's majority opinion in Bollinger, said John Pay- ton of Washington's Wilmer, Cutler & Pickering, lead counsel in the case on behalf of the University of Michigan. It was optimistic about race, and it's been a very long time since a Supreme Court deci- sion was optimistic on race. In Grutter, the Court held that the University of Michigan Law School's admissions program did not unconstitutionally discrimi- nate against white applicants be- cause achieve- ment of a diverse student body is a compelling gov- ernmental inter- est, and the law school's admis- sions policies were narrowly tailored to achieve that interest. Payton served as lead counsel for the University of Michigan forir both Grutter and Gratz v. Bollinger at the trial court and at the Sixth Circuit Court of Appeals He argued Gratz at the Supreme Court. Payton was a special guest of the Labor and Employment Law Section on a panel at the ABA An- nual Meeting that explored the significance of the Grutter and Gratz decisions. The panel was presented by the Section's Leader- ship Development Initiative, which promotes opportunities in the Section and the profession for newer lawyers, including women and minorities. For those of us inside the case, the decision was not surprising, Payton said. But by stating in her majority opinion that nothing less than the na- tion's future is at stake, he added, O'Con- nor changed the lead. The optimism of Brown v. Board of Education had receded, Payton said. The prom- ise of Brown was integration, and that promise was clearly going un- fulfilled. In Bakke v. Universily of California, Payton said, the con- trolling opinion of Justice Lewis Powell, which found that achieving diversity could be a compelling governmental interest, was undeniably opti- mistic, but he was only one judge, and Powell himself rejected the re- medial use of race. Payton reviewed briefly the decisions in affirmative action cases beginning with Bakke in 1978, finding them con- si stently pessimistic about any use of race as a selection criterion. Following those cases, in particul a 1996 Fifth Circuit deci- sion in Hopwood v. State of Texus, opponents of affirmative action specif- ically targeted the Uni- versity of Michigan's af- firmative action policies. In Hopwood, the Fifth Circuit had treated Justice Powell's opinion in Bakke as not binding on the issue of the importance of diversity. Even some s uqpporters of affir- mative action doubted that hav- ing a diverse student body is im- portant, believing that Powell was making it up, providing a sub- terfuge,' he said. Our strategy was to put to- gether a massive, overwhelming expert case' on the importance of diversity. The plaintiffs ended up withdrawing their own experts continued on page 8 FALL 2003 VOLUME 32, NUMBER 1 Section of Labor and Employment Law American Bar Association umum I -- - Imvm mmv f A mam Ism 10 -Y mi7,nt Grur, , er Calmed Optimistic About Race at Annual Meeting Discussion

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