LEE BOLLINGER

In the years since the University of California abolished affirmative action in 1995--and California voters expanded the ban statewide by passing Proposition 209 a year later--the focus of the national debate on the issue has shifted elsewhere.

Currently, all attention is on Michigan.

Lee C. Bollinger, president of the University of Michigan, won a victory last December when a federal district court upheld the university’s admissions policies that consider race and ethnicity in selecting undergraduates.

He is now fending off a similar suit in another U.S. district court by white applicants who claim they were rejected by Michigan’s law school because of their race. Both cases are being pushed by the Center for Individual Rights, a Washington D.C.-based public-interest law firm trying to dismantle race-based preferences.

Legal scholars figure one of these cases may end up before the U.S. Supreme Court. Either could prompt the court to reconsider its 1978 landmark ruling, Regents of the University of California v. Bakke, which allows colleges and graduate schools to use race as a “plus factor,” or one factor among many in selecting students.

Bollinger, a law professor and 1st Amendment scholar, has long been involved in these race-conscious admissions policies. Shortly after becoming the university’s president in 1996, he helped revise its undergraduate selection criteria so that they passed muster in federal court. Earlier, when he was dean of Michigan’s law school, he helped formulate its admissions rules.

More recently, Bollinger’s role has been as lead defendant in the federal cases. But he has not been passively sitting in court. Not only does he regularly speak out in favor of affirmative action, he also has rallied public support from former President Gerald R. Ford, virtually every major university and dozens of major corporations.

Bollinger, 54, a California native, holds degrees from the University of Oregon and Columbia Law School and was a former law clerk of late Supreme Court Chief Justice Warren Burger. He is married and has two grown children.

Bollinger was interviewed at The Times while he was on a swing through Southern California meeting with alumni and potential university contributors.

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Question: Why do you think it’s so important to defend affirmative action?

Answer: A core mission of the university is to help students see the world through multiple perspectives. It can sound trite, but this is one of the reasons you study literature. It’s one of the reasons you study other cultures. Given the history of this country, there is a different life experience growing up white, growing up black, Hispanic or Native American. Giving students a chance to cross those boundaries is the same kind of educational experience as sitting down and reading a novel that illuminates for you a perspective on life that you had not seen before.

Q: Can you offer an example?

A: I wrote a book on extremist speech in America and free-speech theory. When you talk about racist or sexist hate speech, there is a fundamentally different classroom dynamic when you have minorities present in the room. These debates are reenacted every day in classrooms across the country. They have a fundamentally different character when the participants are from all the different sectors of society.

Q: So you see racial diversity as a way to enhance the educational experience?

A: Yes, absolutely.

Q: That leads into Barbara Grutter’s point in her lawsuit against your law school’s admissions policies. She argues that you are trying to enhance the educational experience for some while denying an education opportunity to others.

A: One of her claims is that she’s an older person, a mother who has experiences in the world that would benefit the student body. We take into account those factors in deciding who to admit. The law-school policy explicitly says we seek diversity of all kinds, not just racial and ethnic. There are people who are older and have life experiences, like raising children, that we want in the overall mix.

Q: What about Grutter’s argument about denying opportunity for some to enhance the education of others?

A: That is one of the myths about how admissions works. Some people think of admissions as taking applicants, looking at their LSAT or SAT scores and grades, lining them up in numerical sequence, drawing a line and that’s the class. Admissions are not done that way. Admissions work by taking a fairly sizable pool [of applicants], whose general credentials, based on historical experience, show that they can do the work. Then, within that pool, we select an array of individuals who collectively will provide the best education for the entire class.

Q: But some people get excluded.

A: Obviously, we’re selecting from a large pool of applications. We receive 23,000 applications for 5,000 undergraduate positions. In law school, it’s 3,500 applications for 350 or so seats. The question is: What factors are going to be taken into account? Grades and standardized test scores are important, but they are not exclusively important. We want to make sure there are people from different parts of the socioeconomic spectrum. Race and ethnicity are simply two additional factors. But a white student’s chances of getting in are barely affected by our consideration of race.

Q: Is the fate of affirmative action ultimately going to be decided by the courts or by the court of public opinion?

A: I think by both. That’s why we’ve tried to have this dual approach, of both a legal defense articulating the principles, as well as a public educational component.

Q: On the legal front, what’s your principal argument?

A: The main argument is that Bakke is a wise decision that should be preserved. It says you can take race and ethnicity into account as factors in admissions for educational purposes. We have set out to prove that Bakke is a wise constitutional law.

Q: How do you do that?

A: Part of it is to show that race is still a salient factor in life. The metropolitan region of Detroit is more segregated today than it was in the 1960s. The overwhelming majority of our freshmen come from all-white or all-black schools. The first time they encounter an integrated or social environment is when they arrive at the university. It’s not easy to cross racial boundaries in this society.

Q: On the public front, what are you trying to do?

A: I decided to use this case to try to educate society about this issue. This is not just a Michigan issue--it’s a higher-education issue, it’s a business issue and a military issue. General Motors filed a brief in support of the university. That was followed by 20 multinational corporations--Microsoft, Kellogg, 3M, Intel and so on. In their judgment, good business requires workers who can function well in a racially and ethnically diverse environment. To the best of my knowledge, military academies take race into account as a factor in admissions. Why? Because of the belief that we need an integrated officer corps, given the racial composition of the military.

Q: Do you expect one of these cases will go all the way to the Supreme Court?

A: Since both sides view this as a matter of principle, my strong expectation is that the loser will appeal to the [U.S.] 6th Circuit [Court of Appeals] and then to the U.S. Supreme Court.

Q: When the law school at the University of Texas faced a similar challenge, supporters of affirmative action didn’t want the issue to advance to the Supreme Court for fear a ruling would extend the ban nationwide. Given the conservative makeup of the Supreme Court, is there a risk to your strategy?

A: It’s dangerous when a great principle is at stake to make these kinds of calculations. In general, you can only articulate and defend your principles, and then it’s up to the court to decide. In the [1996] case of the [University of Texas Law School] Hopwood decision, there were facts in the case that made it problematic. They had devised a system where minority applicants were handled by a separate committee, and that was a problematic practice.

Q: So you think the Michigan cases are more likely to stand up to Supreme Court scrutiny?

A: We have done our very best to build a legal and educational case to defend our principles.

Q: If the Supreme Court were to rule against you and thus overturn Bakke, what would happen?

A: Every public and private university in the country that receives federal money couldn’t take race into account as a factor in admissions.

Q: That would be quite a change.

A: Most people don’t think ahead about what the world would look like if Bakke were overturned. Some people say you should not be able to take race and ethnicity into account in admissions, but you should have outreach programs directed at blacks, Hispanics and Native Americans in K-12. You should do things to raise the credentials of underrepresented minorities. If Bakke is overturned, the next challenge is to the outreach programs.

Q: California is already struggling with such questions about recruiting and outreach, given recent rulings regarding Proposition 209. All this began when the University of California decided to abolish affirmative action. What is the view of the University of California from Michigan?

A: The view is that it’s an educational tragedy. It’s a very serious loss for all students involved. I have the highest regard for California’s system of higher education. Its universities are the match of any other in this country. They remain very, very strong. But there is this feeling that a great loss has occurred.

Q: One of the strategies to preserve racial diversity in California is to guarantee a seat for the top 4% of students from each high school class. In Texas, it’s the top 10%. In Florida, the top 20%. What do you think about these plans?

A: You have two separate different “percent solutions.” The California approach says, “We will guarantee you a place, somewhere in the system.” The effect is devastating for the most selective universities like Berkeley and UCLA. They end up with minimal racial and ethnic diversity.

The other approach is that a specific university will take the top X percent of every high school in the state. Open admissions systems like this are notoriously damaging to the educational quality of those institutions. Not all these students are ready for this type of university education. The quality of the student body is of great importance to the faculty. Faculty have many opportunities at other institutions. It would not be very long for the public university system to be in jeopardy.

Q: So you see these programs as problematic?

A: One of the greatest achievements in higher education is the building of a public university system that is the equal of the private university system. Public universities have the virtues of access, combating discrimination, serving as a melting pot for society. Private universities have long been responsible for the virtues of academic excellence. Both sides have affected the other. Private universities are much more open today, much more public-spirited. Public universities embody academic excellence. That’s the benefit of having a dual system. If we were to lose that, I think the country would lose something.

Q: It’s unusual for a university president to be such an activist on a pressing social issue. Most presidents these days focus almost exclusively on fund-raising and running their institutions.

A: I believe strongly in the importance of public debate. I think educational leaders have a responsibility to speak out on issues, especially those that concern their institutions of higher education.

Q: So do many of your colleagues. But they don’t speak out on societal issues the way their predecessors did decades ago.

A: There is an argument that universities are much more complicated today, thus much harder to run. Even if that is not true, it still takes several years to get any sense of the whole. Many university presidents leave after five or six years. That’s a point when you really know what you are doing and you can turn your attention to other matters that affect society.

Q: You didn’t wait that long.

A: I didn’t have any choice. Being a defendant is not something you volunteer for.