The Right Coast

January 28, 2005
Plaintiffs Jennifer Gratz et al. Awarded $672,000 in Legal Fees
By Gail Heriot

When the Supreme Court decided the University of Michigan affirmative action cases back in 2003, in some ways the litigation seemed to end a tie score. While the Court upheld the University of Michigan Law School’s admissions scheme in Grutter v. Bollinger, it condemned as unconstitutional UM’s undergraduate policy in the companion case of Gratz v. Bollinger.

It was easy to get the misimpression that the Court had simply split the difference between supporters and opponents of these policies and that both sides had received about half of what they wanted. In fact, however, Grutter was a huge loss for those (like me) who favor race neutrality. Gratz, on the other hand, for all practical purposes was a small victory at best. Any university whose then-current race-based policy would be banned by Gratz could, without too much trouble, re-model its policy in the style approved in Grutter and achieve the same results. The difference between the two programs was almost entirely a matter of style, not substance.

But that’s not the whole story as yesterday’s events demonstrated. Plaintiff Jennifer Gratz and her co-plaintiff still won, and were still entitled to their attorneys’ fees–which Judge Duggan awarded in the amount of $672,000. Their individual cases are victories even if their value as precedent is small. And that means the movement to ban race and gender preferences in state college admissions can survive to fight another day.

It’s interesting to see how the press reported the event. The Houston Chronicle, for example, played it straight with a headline that read, “College Ordered to Pay Legal Fees: Federal Judge Awards $672,000 over Michigan’s Use of Affirmative Action.” The Ann Arbor News, however, chose to emphasize the hardly uncommon (indeed expected) fact that plaintiffs asked for more than they got with “Legal Fees Billed to U-M Cut: Judge Slashes Request from Affirmative Action Plaintiffs’ Attorneys.”