To its credit, Michigan has vigorously defended its admissions programs for undergraduate and law school students, a decision that has cost more than $10 million. The university has not always been progressive and that’s the point that Ted Shaw, the lawyer representing Black and Brown students at the University of Michigan, had hoped to argue.

Because Shaw is a former law school faculty member who helped reshape the school’s affirmative action program, the court excluded him from arguing the case. Consequently, proponents of affirmative action were allowed to make only half of their argument before the Supreme Court. The University of Michigan made its case by stating that a diverse student body benefits all students and is reason enough to institute affirmative action programs.

Fearing that it might expose itself to additional litigation, Michigan did not argue that affirmative action is needed because of its racist history. Meanwhile, the Bush administration joined the efforts of the Center for Individual Rights (CIR), the Right-wing group that brought both suits against Michigan on behalf of rejected White applicants, to overturn the programs.

Had Shaw, the lead affirmative action attorney for the NAACP Legal Defense and Educational Fund, been allowed to participate in the arguments, he would have made the points that LDF and three other groups made in their friend-of-the-court petition supporting Michigan.

The brief states that in earlier legal proceedings, the students had “presented substantial and uncontroverted evidence that during its entire 185-year history, the University has repeatedly engaged in racial discriminatory and exclusionary practices against (students of color) on campus, the effects of which, to this day, are manifested in their continued underrepresentation on campus and in the University’s reputation for discriminatory behavior.” Blacks are 16.2 percent of all college-aged residents of Michigan, but less than 9 percent of the university’s student body.

Founded in 1817, the University of Michigan did not admit its first African-American students until 51 years later.

“The school segregated its own campus housing, and allowed students of color to be excluded from fraternities and sororities into the 1960s,” the LDF brief observes. “Despite calls in 1949 by the Michigan Civil Rights Congress and again in 1952 by the campus Committee on Student Affairs to alter discriminatory by-laws of campus organizations, University President Harlan Hatcher and other officials flatly refused to do so, leaving University-recognized organizations free to continue their discriminatory practices with implicit or explicit University sanction.”

As late as 1958—four years after the Supreme Court struck down the “separate but equal” doctrine in the “Brown v. Board of Education” decision—the university continued to “respect the wishes of a student who said that he or she did not wish to live with a student of another race.”

By contrast, foreign students were treated better than native born Blacks.

“The University treated foreign students in a markedly different fashion, relying on a ‘Michigan tradition that segregation of foreign students by nationality is undesirable and that contact with American students is mutually beneficial’ to justify full integration of foreign students into campus life and policies giving them priority over African-American students in both admissions and housing,” the LDF petition states.

In May 1973, the University of Michigan created the Ad Hoc Advisory Committee on the Negro in Higher Education. The following year, the committee announced the school’s first mandate, “the Opportunity Program,” to admit “socially disadvantaged” students.

“While minority enrollment increased to some degree in the years immediately following, students of color still face apathy at best, and often active resistance, to their presence at the University and were still excluded from campus activities and university social functions,” states LDF.

It was not until a student group, calling itself Black Action Movement (BAM), staged a series of strikes in 1970, that the university “finally agreed to pursue limited admissions and recruitment efforts, only to abandon them in 1973.”

During the 1970s, there were widespread and well-publicized racial incidents on campus and Black student enrollment fell by 34 percent from 1976 and 1985. Following hearings in the state legislature, Provost James Duderstadt announced the “Michigan Mandate” in 1988 to increase enrollment of students of color.

LDF states, “Although implementation of the Michigan Mandate over the last 15 years represents a substantial and continuing change in the University’s attitude toward minority students and applicants, it has not in a single generation eradicated the hostile attitudes entrenched by prior discriminatory conduct and indifference.”