The Nine [117]
Conservative public interest groups like the Center for Individual Rights—a civil rights counterpart to Jay Sekulow’s religion-based outfit—had been scouring the country to find the right places to challenge racial preferences. The stark numbers at Michigan made the school an inviting target, as did the availability of sympathetic plaintiffs.
Barbara Grutter was one of nine children of a minister in the Calvinist Christian Reformed Church. When her own children were small, she ran a medical consulting business out of her house, and eventually decided to apply to the University of Michigan Law School, which had a joint program in her field, health care management, and law. She had a 3.8 grade-point average from her under-graduate days at Michigan State and scored 161 on the LSAT. A black student with those grades and scores would certainly have been admitted to the law school, but Grutter was placed on the waiting list and then rejected. Jennifer Gratz, also white, was similarly well qualified for admission to Michigan’s undergraduate program and was also placed on the waiting list and then rejected. Both women filed their lawsuits in late 1997, and then began their long march through the federal trial and appellate courts.
From the start, both cases—Grutter v. Bollinger and Gratz v. Bollinger—were causes célèbres. (Lee C. Bollinger was then president of the University of Michigan.) By some reckonings, the Court was moving in the direction of striking down all racial preferences, and the Michigan cases appeared to be nearly ideal vehicles for supporting that position. O’Connor herself seemed to be inching rightward on the issue, most notably in her opinion for the Court in Adarand Constructors, Inc. v. Pena, in 1995. There she reversed a lower court ruling that upheld a federal affirmative action program for minority contractors, but she saw no reason to rule on every affirmative action program in the context of that single case; still, the judicial momentum, as well as the rhetorical energy, seemed to belong to the opponents of such programs. As Scalia put it, in a concurring opinion in Adarand, “In the eyes of the government, we are just one race here. It is American.” In 1996, the Fifth Circuit struck down the use of affirmative action in admissions at the University of Texas—a prelude, many thought, to the same decision on a nationwide basis by the Supreme Court. The justices denied cert in the Texas case.
At that point, though, an unlikely savior of the Michigan program, and all affirmative action, stepped forward—and he happened to be the most famous Wolverine in the country.
More than most ex-presidents, Gerald R. Ford kept his distance from political controversy after leaving office, but he retained a special interest in the workings of his alma mater. And in 1999, the eighty-six-year-old former varsity football star decided to make a public stand in support of affirmative action at the University of Michigan. He wrote an op-ed piece in the New York Times entitled “Inclusive America, Under Attack.” There Ford said, “A pair of lawsuits…would prohibit [Michigan] and other universities from even considering