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


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