8
on the web at www.wmitchell.edu/current/nonacademic/student_orgs/opinion.html Volume 10, August 2003 William Mitchell College of Law Student Newspaper August 2003 By Christy Yang Welcome to William Mitchell College of Law! I am Christy Yang, from China. What an excitement that you can study law and experience all three or four years with us. However, at the beginning of your student life, you will find various academic and personal challenges. You will find language barriers. You will be homesick. Even the way courses are taught and the way you must study will be different than what you’re used to. Most likely, you will have more reading and writing assignments than expected. Also, you cannot assume or even expect the environment or living arrange- ments will be the same as they are in your home country. I arrived in the U.S. in the fall of 2002 as a freshman. Although one year has past, I still remember my confusion and embarrassment at the beginning of my law student life. I didn’t know how the courses would be taught, and consequently what was needed to learn and remember. I didn’t even know how to take notes in class, and how and in what manner the exams would be given. In class, I understood only a small part of the lectures. And the course assignments were much heavier than I expected. I spent all of my spare time reading, but could still barely keep up with the steps. Another big challenge I met was writing in English. I had only written two or three articles in English before I came to the U.S. I needed time to look for the proper word, or more appropriately, to translate a word of my home language to an English word. I had to search and compare several words in sample sentences, and then choose one of them as to the specific situation of my sentences. Those times of groping for the correct word are really unforgettable. I experienced personal challenges as well. My biggest problem was the language barrier. Although I knew many English words, I almost could not understand what people said at the beginning. I learned English words separately, but people here speak them all together in real life. I could not get people to understand what I was saying, either. I didn’t know the words commonly used by other people. I had never before spoken in public. I prepared for class so carefully, but when I needed to respond to a question, I could not find the English words I needed. I felt those words were just on the tip of my tongue, but they didn’t come up. What an embarrassment! I missed so much the way I could live as a successful person in my hometown, and the way I had no difficulty in communicating with other people. I felt homesick now and then. Although I had my whole family here, I still missed all my friends at home. I missed the cozy lives there. You might hesitate with so many problems set before you. Just don’t worry about that. William Mitchell makes your student life outside the classroom as significant as it is inside. From political groups to specialty areas to the student- produced newspaper, you can participate in more then 25 student organizations. You will make progress in every aspect, step by step. It might be a small step each time. However, when you look back after a while, you will find that you made a big progress. Just keep the pace with the schedule of courses and you will find a different you at the end of your first year. As to my first year experience, I became more and more familiar with the way of being taught and the way I had to study. I was introduced to WMCL’s various resources, facilities and services through orientation and other introductory tours. I have gotten clear and patient explanations from my professors. In particular, I received lots of help from the Student Services Office and the Multi-cultural Affairs Office, concern- ing my ESL study. I have enjoyed the discussions between the students in study groups I attended. One of the things that really helped me was the tutoring program. Tutors helped me learn various writ- ing skills, such as the ways of International Students Meet the Challenge By Mary Kilgus In case you were under a rock this summer, you might want to know about a Supreme Court decision handed down in June. Grutter v. Bollinger is said by many to muddy the affirmative action waters instead of clear them, but it is still the first decision since Bakke 1 to address the use of race in the admission process. It is, in a sense, a continuing saga of how this nation will move forward in the affirmative action debate, a debate instituted in the Bakke deci- sion 25 years ago. First, a little background. In 1996, Barbara Grutter, a 43- year-old working mother, who is white, applied to Michigan Law School with a 3.8 undergraduate GPA and a score of 161 on the LSAT. Michigan Law School at first put her on a wait list, and then denied her admission. She was accepted at Michigan’s other public law school, Wayne State, but she declined that admission. 2 Pursuing her displeasure in not being admitted to Michigan, she did some digging and found out that some minority students with lower GPAs and LSAT scores were admitted in 1996, and felt that had she been a minority, she would have been admitted. In 1997, Ms. Grutter answered an ad placed by “several Republican state legislators and The Center for Individual Rights (CIR)” 3 who were looking for some plaintiffs to attack the state’s use of race in the admission process of universities. Ms. Grutter found her advocates. CIR filed suit for Ms. Grutter in Michigan District Court, alleging that Michigan Law School's use of race in the admission process had violated Ms. Grutter's right to equal protec- tion under the law and her rights under Title VI, prohibiting discrimi- nation in programs that receive federal funds. 4 They sued the dean of the law school, the former admission director, the current admission direc- tor and the Board of Regents of Michigan Law School. For relief, Ms. Grutter asked for a judgement that her rights were violated, an injunc- tion prohibiting the use of race in the admission process, compensatory and punitive damages, an order requiring the law school to admit her, and, lastly, attorney’s fees and costs. 5 The law school answered that they will continue to use race as one factor in the admission process. The case went to bench trial. The court considered two issues: (1) whether race was a factor in the admission process and (2) whether there was a compelling interest in using race as a factor. For the last twenty years, universi- ties have been relying on the Bakke decision when tailoring their admis- sion process. The Michigan court was to decide when Bakke controlled in the matter of Michigan Law School. Obviously, certain people in the nation were glued to the outcome of the case. Because the Bakke court was sharply divided, the district court held that it was not bound and that “a state educational institution’s desire to assemble a racially diverse student body is not a compelling state interest.” 6 The court stated that it was not persuaded by the various statisticians and educators on the importance of racial diversity in the classroom. Ms. Grutter’s rights were violated, the law school was precluded from using race in its admission process, and the Board of Regents owed damages to Ms. Grutter. Tremors reverberated in some circles. Would this be the next hurdle in the effort of certain groups to rid the land of affirmative action? The law school appealed to the 6th Bakke, Grutter, and the Continuing Saga of Racial Preferences In This Issue Bakke, Grutter, and the Continuing Saga of Racial Preferences . . . . . . . . 1 International Students Meet the Challenge . . . . . . . . 1 Federal Regs Deny Access . . . . . . 2 Dicta Dreams . . . . . . . . . . . . . . . 4 Golf—Fore Sure! . . . . . . . . . . . . 7 Columns From the Editor . . . . . . . . . . . . . 3 The Opinion’s Opinion Page . . . . . 6 Hearsay . . . . . . . . . . . . . . . . . . 6 The Muse . . . . . . . . . . . . . . . . . 6 Continued on page 5 Continued on page 3 Assistant Managing Editor Christy Yang and family

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Page 1: William Mitchell College of Law Student Newspaper August ......William Mitchell College of Law Student Newspaper August 2003 By Christy Yang Welcome to William Mitchell College of

on the web at www.wmitchell.edu/current/nonacademic/student_orgs/opinion.html Volume 10, August 2003

William Mitchell College of Law Student Newspaper August 2003

By Christy Yang

Welcome to William MitchellCollege of Law! I am Christy Yang,from China. What an excitement thatyou can study law and experience allthree or four years with us.

However, at the beginning of yourstudent life, you will find variousacademic and personal challenges.You will find language barriers. Youwill be homesick. Even the waycourses are taught and the way youmust study will be different thanwhat you’re used to. Most likely, youwill have more reading and writingassignments than expected. Also,you cannot assume or even expectthe environment or living arrange-ments will be the same as they are inyour home country.

I arrived in the U.S. in the fall of2002 as a freshman. Although oneyear has past, I still remember myconfusion and embarrassment at thebeginning of my law student life.I didn’t know how the courses wouldbe taught, and consequently whatwas needed to learn and remember.I didn’t even know how to take notesin class, and how and in whatmanner the exams would be given. Inclass, I understood only a small partof the lectures. And the courseassignments were much heavier thanI expected. I spent all of my sparetime reading, but could still barelykeep up with the steps.

Another big challenge I met waswriting in English. I had only writtentwo or three articles in Englishbefore I came to the U.S. I neededtime to look for the proper word, ormore appropriately, to translate aword of my home language to anEnglish word. I had to search andcompare several words in samplesentences, and then choose one ofthem as to the specific situationof my sentences. Those times ofgroping for the correct word arereally unforgettable.

I experienced personal challengesas well. My biggest problem was thelanguage barrier. Although I knewmany English words, I almost couldnot understand what people said atthe beginning. I learned Englishwords separately, but people herespeak them all together in real life.I could not get people to understandwhat I was saying, either. I didn’tknow the words commonly used byother people. I had never beforespoken in public. I prepared for classso carefully, but when I needed torespond to a question, I could notfind the English words I needed.I felt those words were just on the

tip of my tongue, but they didn’tcome up. What an embarrassment!

I missed so much the way I couldlive as a successful person in myhometown, and the way I had nodifficulty in communicating withother people. I felt homesick nowand then. Although I had my wholefamily here, I still missed all myfriends at home. I missed the cozylives there.

You might hesitate with so manyproblems set before you. Just don’tworry about that. William Mitchellmakes your student life outside theclassroom as significant as it isinside. From political groups tospecialty areas to the student-produced newspaper, you canparticipate in more then 25 studentorganizations. You will make progressin every aspect, step by step. Itmight be a small step each time.However, when you look back after awhile, you will find that you made abig progress. Just keep the pace withthe schedule of courses and you willfind a different you at the end ofyour first year.

As to my first year experience,I became more and more familiarwith the way of being taught and theway I had to study. I was introducedto WMCL’s various resources, facilitiesand services through orientation andother introductory tours. I havegotten clear and patient explanationsfrom my professors. In particular,I received lots of help from theStudent Services Office and theMulti-cultural Affairs Office, concern-ing my ESL study. I have enjoyed thediscussions between the students instudy groups I attended.

One of the things that reallyhelped me was the tutoring program.Tutors helped me learn various writ-ing skills, such as the ways of

International StudentsMeet the Challenge

By Mary Kilgus

In case you were under a rock thissummer, you might want to knowabout a Supreme Court decisionhanded down in June. Grutter v.Bollinger is said by many to muddythe affirmative action waters insteadof clear them, but it is still the firstdecision since Bakke1 to address theuse of race in the admission process.It is, in a sense, a continuing saga ofhow this nation will move forward inthe affirmative action debate, adebate instituted in the Bakke deci-sion 25 years ago.

First, a little background. In 1996, Barbara Grutter, a 43-

year-old working mother, who iswhite, applied to Michigan LawSchool with a 3.8 undergraduate GPAand a score of 161 on the LSAT.Michigan Law School at first put heron a wait list, and then denied heradmission. She was accepted atMichigan’s other public law school,Wayne State, but she declined thatadmission.2 Pursuing her displeasurein not being admitted to Michigan,she did some digging and found outthat some minority students withlower GPAs and LSAT scores wereadmitted in 1996, and felt that hadshe been a minority, she would havebeen admitted.

In 1997, Ms. Grutter answered anad placed by “several Republicanstate legislators and The Center forIndividual Rights (CIR)”3 who werelooking for some plaintiffs to attackthe state’s use of race in theadmission process of universities.Ms. Grutter found her advocates.

CIR filed suit for Ms. Grutter inMichigan District Court, alleging thatMichigan Law School's use of race inthe admission process had violatedMs. Grutter's right to equal protec-tion under the law and her rightsunder Title VI, prohibiting discrimi-nation in programs that receivefederal funds.4 They sued the dean ofthe law school, the former admissiondirector, the current admission direc-tor and the Board of Regents ofMichigan Law School. For relief, Ms.Grutter asked for a judgement thather rights were violated, an injunc-tion prohibiting the use of race inthe admission process, compensatoryand punitive damages, an orderrequiring the law school to admither, and, lastly, attorney’s feesand costs.5

The law school answered that theywill continue to use race as onefactor in the admission process.

The case went to bench trial. Thecourt considered two issues:

(1) whether race was a factor in theadmission process and (2) whetherthere was a compelling interest inusing race as a factor.

For the last twenty years, universi-ties have been relying on the Bakkedecision when tailoring their admis-sion process. The Michigan court wasto decide when Bakke controlled inthe matter of Michigan Law School.Obviously, certain people in thenation were glued to the outcomeof the case.

Because the Bakke court wassharply divided, the district courtheld that it was not bound and that“a state educational institution’sdesire to assemble a racially diversestudent body is not a compellingstate interest.”6 The court stated thatit was not persuaded by the variousstatisticians and educators on theimportance of racial diversity in theclassroom. Ms. Grutter’s rights wereviolated, the law school wasprecluded from using race in itsadmission process, and the Boardof Regents owed damages toMs. Grutter.

Tremors reverberated in somecircles. Would this be the next hurdlein the effort of certain groups to ridthe land of affirmative action?

The law school appealed to the 6th

Bakke, Grutter, and theContinuing Saga ofRacial Preferences

In This IssueBakke, Grutter, and the

Continuing Saga ofRacial Preferences . . . . . . . . 1

International StudentsMeet the Challenge. . . . . . . . 1

Federal Regs Deny Access . . . . . . 2Dicta Dreams . . . . . . . . . . . . . . . 4Golf—Fore Sure! . . . . . . . . . . . . 7

ColumnsFrom the Editor . . . . . . . . . . . . . 3The Opinion’s Opinion Page . . . . . 6Hearsay . . . . . . . . . . . . . . . . . . 6The Muse . . . . . . . . . . . . . . . . . 6

Continued on page 5

Continued on page 3

Assistant Managing EditorChristy Yang and family

Page 2: William Mitchell College of Law Student Newspaper August ......William Mitchell College of Law Student Newspaper August 2003 By Christy Yang Welcome to William Mitchell College of

The Opinion • August 2003Page 2

by Kathryn Schmidt

(NAPSI) – Imagine you have justbeen told that you have a rare formof cancer. The doctor says the diseasecan be fatal without the right treat-ment. The only problem is that thetreatment is no longer available athospitals where it should be adminis-tered.

You think this could never happen?Think again. Since January 1, 2003the Centers for Medicare andMedicaid Services (CMS), the federalagency that runs Medicare andMedicaid programs, has taken ascalpel to Medicare reimbursementfor many drugs and therapies admin-istered in the hospital outpatientsetting. As a result, access to lifesav-ing cancer treatments and “orphandrugs”—therapies that treat rarediseases affecting fewer than 200,000Americans—is severely threatened.

The hospital Outpatient ProspectivePayment System (OPPS), a paymentsystem used by CMS to reimbursehospitals for services and suppliesprovided to patients in the outpa-tient setting, is at the heart of thecontroversy. Under an OPPS regula-tion that was implemented inJanuary, CMS has employed a flawedmethodology to calculate reimburse-ment rates for hospital outpatientdrug treatments. As a result, hospi-tals have seen reimbursement ratesfor certain cutting-edge medicines

drop by an average of 35 percent. Inmany instances, payment rates areless than what the hospital pays toacquire, let alone administer, storeand handle, the therapies.

Although many hospitals haveabsorbed the cost of the treatmentsdespite large budget deficits, thiseffort cannot last long. Hospitals willbe forced to discontinue these treat-ments if the Medicare reimbursementsituation does not change. Further,many of these therapies that arebeing jeopardized by the rule improvepatient quality of life by allowingpeople to continue working, to live athome and to lead active and produc-tive lives. Certainly, that must countfor something.

In addition to applying a flawedpayment scheme, CMS has come upwith other avenues for denyingMedicare patient access to innovativemedical therapies on the basis ofcost. For example, the agencyadopted a new policy of comparingnew outpatient therapies with exist-ing products. Using this practice, ifCMS determines that a newer productis “functionally equivalent” to anolder product, the agency will reim-burse at the rate of the cheaperproduct. The policy, which wasadopted without an opportunity forcomment by physicians, patients, orhospitals, does not take into account

Federal Regulation DeniesMedicare Patient Access To

Cutting-Edge Medical Therapies

Continued on page 4

Page 3: William Mitchell College of Law Student Newspaper August ......William Mitchell College of Law Student Newspaper August 2003 By Christy Yang Welcome to William Mitchell College of

Page 3The Opinion • August 2003

Editor-in-Chief: Mary Kilgus

Managing Editor: Carla Magnuson

Assistant Managing Editor: Christy Yang

Business Manager: Scott Kissinger

Assistant Business Manager: Jason Krause

Staff Writers: Sara Dady, Chad Collins, Shawn Bakken,Lori Bower

©2003 The Opinion, William Mitchell College of Law Student Newspaper

The Opinion is an independent publication of the Students ofWilliam Mitchell College of Law. The views expressed in The Opinionare those of the authors and do not reflect the views of The Opinioneditor, William Mitchell College of Law, its employees or its Board ofTrustees, unless otherwise noted.

The Opinion will always consider quality content submitted forpublication. Interested authors may forward copy of not more than1500 words to [email protected].

The Opinion reserves the right to edit for clarity, space andeditorial content.

Please contact the Editor at [email protected] for specificquestions or comments.

Parties interested in advertising space should contact ScottKissinger at [email protected].

Hello to all 1L students and to allof you returning students. Here wego again, huh?

First years, I hope you do well join-ing this esoteric group. You’ll findyou have to speak another language,soon. Oh? You’ve never had to learn alanguage in two days in order tostudy for class? Poor you. Justremember, we all had to live throughit. We, here at The Opinion, hopeyou’ll remember that you’re stillhuman after all this. And don’tworry, it will all be over soon—justnot soon enough to suit you.

As for everyone else, here’s to agood year at WM. I know you’re allchomping at the bit to be in schooland study hard. Just don’t take your-self too seriously—it leads to ulcers.

This should be an interesting year,considering I heard the school isgoing to be under construction soon.Won’t it be fun to dodge constructionequipment and try and hold yourbreath around dust while you’rerunning to class? I just hope itdoesn’t take up too much parking.

Fortunately, we have some inter-esting things to discuss in TheOpinion. In the first issue of the year(this one) you’ll see some discussionsof the landmark affirmative actioncase handed down by the SupremeCourt last June. Hopefully, all diversevoices will be heard in the pages ofThe Opinion on it. Soon to bediscussed in the September issue isthe state of “enemy combatants” bythe federal government. I’m lookingforward to that one. Feel free to dropThe Opinion a letter-to-the-editor orto submit your own article for publi-cation. We’re open to all ideas andwant to facilitate lively discussionson the issues in law of this time.Instead of the dusty books and tiredlectures, free your mind to really diginto an issue and talk about it.

Got a burning issue you want todiscuss? Drop us a line [email protected].

Have fun this year. See you in thehallways.

From the Editor

Submissions to The OpinionArticles for the October issue of The Opinion

are due September 15, 2003

analyzing, composing and wording.Also, tutors made me more comfort-able in communication, because Iwould have enough time to ask ques-tions and make clear the meaning ofevery word. For example, at thebeginning of the second semester,one of the tutors helped me analyzea statute word by word. She was sopatient and I found myself not nerv-ous at all. Her explanation made meunderstand that the analysis of lawin the basic place to start my paper,and most lawyers will stick to thisfundamental rule, as well.

My Extracurricular life also playeda very important role in my studentlife. Minnesota is a nice place forinternational students. It really is awonderful opportunity to meet new

people and learn more aboutAmerican culture. Most people I methere were so kind. That greatly light-ened my nervousness and stress.Also, my family and I visited a wholelot of places in order to explore thecultural developments here, and tounderstand the people more.

I find studying in the U.S., espe-cially at William Mitchell, a veryenriching experience, so far. WMCL ismuch more than a successful highereducational institution. It is acommunity, in which everyone isinterconnected and interdependent.International students form asubstantial part of this communityand in that sense, adopting a new lifeis much easier.

Int’l Studentscontinued from page 1

Page 4: William Mitchell College of Law Student Newspaper August ......William Mitchell College of Law Student Newspaper August 2003 By Christy Yang Welcome to William Mitchell College of

The Opinion • August 2003Page 4

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By Carla Magnuson

When I attended WMCL’s acceptedstudent’s day in the spring of 2001, afuture 1L in the audience asked astudent panelist for a good way toprepare for the coming school year.This WMCL representative told futurestudents to enjoy the summer andrent “The Paper Chase”. After 2 yearsof hindsight this recommendationproved apt. Then again, so wouldhave “Full Metal Jacket” (insert yourfavorite simulated boot camp experi-ence here). Or some sci-fi adaptationof “The Library of Babel” by JorgeLouis Borges.

Or some reoccurring nightmare inwhich you are imprisoned in anunending room of books most of themfilled with a language unfamiliar toyou. To be released from this “prison”you need to read & understand justthe parts of books that are pertinent.Reading and understanding those thatare not pertinent will add time toyour sentence. Additionally, you arenot told why certain parts are perti-nent or not. You need to figure thatout yourself. There are other booksthat tell you why other parts of booksare pertinent, but you’ll need to findthem on your own somewhereamongst the endless room of books.To show you’ve chosen, read andunderstood the pertinent parts and beallowed out of this room, you mustwrite, in long hand a series of essays,applying the pertinent parts to somehapless hypothetical involving Paula

the Plaintiff and David the Defendant.And you have the course of onewinter and one spring holiday to fillstacks & stacks of little blue leafletswith these essays. Until your handfalls off. And then you wake up.You’ve survived your first year.

Before you throw up your stillattached hands and opt out of theendless books experience, here aretwo things to consider. First, thesecond year with the option of choos-ing at least one class you’re interestedin, makes the whole nightmare, asperverse as it sounds, enjoyable.Having wondered down an unfamiliaryet intriguing corridor, you may findyourself spending count-less virtualhours in Westlaw Land or Lexis-Nexisville hunting for extra specialpertinent parts that only you can findand understand. And so the night-mare has turned into just aconvoluted dream you can’t quitewake up from.

Having proven yourself able towithstand the time spent in unfamil-iar on-line territory, you may even beasked to collect special pertinentparts, arrange them in a sequence,label them with special locatordescriptions and print them in aspecial book with other collectedparts. You have heard that the arrang-ing process makes you more attractiveonce you have been released from theroom of unending books.

Second, the caretakers of the roomof unending books, those that havefound their way out, have become

more human. Before they appeared asinscrutable and semi-divine. Now inthe dream world you understand theyare merely mortal. Bodhisattva-like,they have come back to point theway. Albeit in such a manner thatdidn’t make much sense in the firstyear of the dream/nightmare.

The language the books speak isstarting to catch on. Light is peakingthrough the crack in the librarycarrel.

Even more encouraging, you areallowed day passes out of the endlessroom of books. As you wander, youbegin noticing people discussing someof the pertinent parts of the books incasual conversation. Friends and rela-tives come to you and ask you aboutcertain pertinent parts knowing youhave spent intimate time with thebooks in which they are located. Andyou regularly surprise yourself &answer them in a manner that showsyou do have a grasp on some of themore basic pertinent parts. But youremember that you are only on passfrom the unending room & there arestill more pertinent parts to find.Maybe an infinite number of them.And then the series of longhandessays begins again. In this updatedversion of the nightmare your handsremain attached, the fingers have justworn away. And then you wake up.You’ve survived your second year.

So that’s what you all have to lookforward to. Or you could just rent“The Paper Chase”.

Dicta Dreams, or the Parable of Pertinent Partsthat newer products may providesignificant benefits to patients, suchas less frequent dosing, fewer sideeffects or an improved mode ofadministration.

Further, CMS took it upon itself toignore FDA classifications by redefin-ing diagnostic and therapeuticradiopharmaceuticals as no longer“drugs” or “biologicals.” Again, thisdecision was made without consult-ing doctors, hospitals or patients.

As Congress begins working onMedicare drug coverage legislationthis summer, it must adopt measuresthat fix the OPPS problem andrestore appropriate reimbursementrates for important drugs and othertherapies. Hospitals must be suffi-ciently reimbursed for thelife-improving, life-saving treatmentsthey utilize, so that Medicarepatients may continue to receivethese therapies. If not, patients willsuffer, and state-of-the-art pharma-ceutical and biological innovationswill become a thing of the past.

For more information about theCMS rule or to learn how to ask yourlawmakers if they support legislationthat will correct the problemscreated by the rule, log on towww.within-reach.org.

Page 5: William Mitchell College of Law Student Newspaper August ......William Mitchell College of Law Student Newspaper August 2003 By Christy Yang Welcome to William Mitchell College of

Page 5The Opinion • August 2003

Circuit. That decision is an interest-ing read, because while it reversedthe district court's ruling and foundfor the law school, the internal bick-ering of the justices over this issue ismade public in the decision. JusticeBoggs added a “procedural appendix”to the opinion, stating that theresult of the Grutter case was“a result of political maneuvering andmanipulation”.7 The majority stronglyargue against his assertions, butreading this bickering back and forthover the court’s decision-makingprocess is disconcerting, and high-lights the national debate over thisissue.

Ms. Grutter was granted certiorarito the Supreme Court. JusticeO’Connor wrote the judgment of thecourt, affirming the 6th Circuit’s find-ing that the state had a compellinginterest in racial diversity in theclassrooms of its law school. Whilethe policy of the law school’s admis-sion process was to admit a “criticalmass” of minority students, otherqualities besides race were consid-ered. These “soft variables” includedsuch things as the enthusiasm of therecommenders, the quality of theundergraduate institutions, the qual-ity of the applicant’s essay and theareas and difficulty of the undergrad-uate course selection—all with aview to the applicant’s “likely contri-bution to the intellectual and sociallife of the institution”.8

The Court said that Bakke wascontrolling, and that Bakke said theuse of racial preferences was acompelling state interest. BecauseMichigan Law School admittedenough minority students, whilelooking at all the “soft variables”,enough to have a “critical mass” ofraces represented in the 1st year

class, it was found to be narrowlytailored.

These points, of course, are fodderfor discussion. At what point is “criti-cal mass” formed? If the averagenumber of minorities admitted in aparticular year is roughly 12%, and isthe same, roughly, in the next 3years, how is that different from aquota? Quotas, as we know, werestruck down in Bakke. Why doesrace have to enter into the discussionat all?

Both sides of the Grutter caseintroduced volumes of evidence as tothe use of race in admission policies.The Supreme Court was persuaded notonly by the evidence submitted bythe defendants, but the multitude ofamicus Curie briefs submitted insupport of racial diversity in highereducation. The list of friend-of-the-court briefs is eye-opening. Sixty-fiveFortune 500 companies, includingMICROSOFT, Coca-Cola, 3M andGeneral Electric filed briefs support-ing diversity in the classroom. Inaddition, General “Stormin’ Norman”Schwartzkoff and other military lead-ers submitted briefs in support. Andlet’s not forget the over 2,000 lawstudents from around the country,including many here at WilliamMitchell, who signed on to a brief insupport of diversity in the classroom.

At the lowest court level, thedistrict court heard testimony fromprofessor who said having a diversegroup in the classroom was integralto the lively discussion of ideas. Thecourt heard testimony from African-American students who said what itwas like to be the only black studentin a law school. The Supreme Courtfound, loud and clear, that using raceas a factor with the idea of providingan enriched learning environment inthe classroom was a compelling stateinterest. They also decided thatbecause Michigan Law School did not

have a set number of minoritystudents to enroll, but considered allthe factors involving a particularstudent, that it was narrowly tailoredenough to pass scrutiny.

At the center of the debate onaffirmative action, and, specifically,the use of racial preferences in lawschool admissions, is whether racialdiversity is needed, and how raceshould be used, if so.

Is it important to see differences ina particular student body? The courtsin Grutter heard testimony from allsides of this debate, and concludedthat racial diversity in the classroomsof law schools provides a better learn-ing environment. The leaders of lawmust represent the people of adiverse country. Admittedly,O’Connor’s pronouncement that theSupreme Court will leave thedefinition of “critical mass” to theschools is so totally subjective asto invite ridicule. Who are thesepeople, anyway?

A professor trying to decide atwhat point the discussion in theclassroom was “robust” enough is liketrying to figure out exactly when thesky turns from blue to black as nightfalls. The “I know it when I see it”defies quantifiable facts. JusticeO’Connor leaves it in the hands of theschools’ admission process, statingsimply that “attaining a diversestudent body is at the heart of thelaw school’s proper institutionalmission, and that ‘good faith’ on thepart of a university is ‘presumed’absent a showing to the contrary”.9

One has simply to look through theannals of any American Law schooland see the class pictures from thelast 30 years. As Walter Dellinger(Walter Dellinger is head of thenational appellate practice atO’Melveny & Myers in Washington,D.C. He is also the Douglas B. MaggsProfessor of Law at Duke University)

said, “There is a long hallway at DukeLaw School that has a picture ofevery graduating class, arranged byyear. In the pictures from the ’50sand into the ’60s, class after classcontains about 100 eerily identicallooking students: about 100 whitemales with crew cuts, white shirts,and narrow ties. While I realize theremust be significant variety amongthose young men, I can’t help butthink that it pales by comparison tothe rich variety of experiences thatare reflected in the classes beginningwith the ’70s, where the photos turnto Technicolor and include an array ofolder students, as well as more andmore women, African-Americans,and, increasingly, a number ofstudents from a wider and wider arrayof ethnic backgrounds”.10

I like this quote. It’s filled withhope for the future. As difficult as itis discussing diversity issues, itshould bring to mind that there is areason we are struggling over thehows and whys. Color shouldn’tmatter. It does, though.

Maybe it’s about redressing formerdiscrimination, maybe it’s aboutcreating a truly compelling classroomdiscussion. The same basic factremains: there are a set number oflaw school seats. The issue is, whogets to sit in them?

1Regents of Univ. of Cal. v. Bakke, 438 U.S. 265,98 S.Ct. 2733, 57 L.Ed.2d 750

2Out in the Mountains,http://www.mountainpridemedia.org/oitm/issues/2003/04apr2003/fea02_beyond.html

3http://www.cir-usa.org/4Grutter v. Bollinger, 137 F.Supp.2d 8215Grutter v. Bollinger, 137 F.Supp. 2d 821, 8246Id.at 8447Grutter v. Bollinger, 288 F.3d.732, 752.8Grutter v. Bollinger, 123 S.Ct. 2324, 23289Regents of the University of California v. Bakke,438 U.S., at 318-319, 98 S.Ct. 2733.

10MSN Slate,http://slate.msn.com/?id=3944&cp=2876

Bakke, Grutter,Racial Preferencecontinued from page 1

New Scan

Page 6: William Mitchell College of Law Student Newspaper August ......William Mitchell College of Law Student Newspaper August 2003 By Christy Yang Welcome to William Mitchell College of

The Opinion • August 2003Page 6

By Carla Magnuson

So here we were, four white womendiscussing the merits of the Grutter v.Bollinger decision, in order to developthe topic for a workshop at the NLGconference in the fall, and write alittle piece for the Opinion newspa-per. As far as enrollment at WilliamMitchell is concerned, the four of usdo not belong to an under-repre-sented group. In fact we each couldhave been Barbara Grutter. As anolder, “non-traditional” student shewas returning to school after startinga family. Two of the four of us havechildren with our average age aroundthirty-something. She was someone,superficially at least, we should havebeen able to identify with.

We tried our best to do so but hereare some of the reasons why wecouldn’t.

She was applying to a Top 10school with an excellent GPA (3.8) &LSAT score (160). Had she consultedthe U.S. News law school ratings,back when they were free & not“premium”, she would have knownthat those “excellent” scores put herin the bottom 25% of the class. Noneof us would have felt entitled to aposition in that school because weknew we were taking the risk ofbeing rejected.

Luckily, those of us comfortableensconced in our 3-tier haven hadoptions. “So where was Barbara’sWilliam Mitchell; the decent solidhome for non-traditional lawstudents who are more interested ineducation than competition?” weasked. According to hearsay-one of us

saw an interview with Barbara onT.V.-being from Ann Arbor; the U ofMichigan was her only choice. Okay,sucks to be you if the one and onlylaw school in your hometown is inthe Top 10. If she had really wantedto get into law school, she wouldhave considered commuting. Detroit’snot that far away.

Then we asked ourselves, would wehave sued in response to beingdenied the position, presuming it wasbecause we were discriminatedagainst? Again, we were all in agree-ment, we would not have felt entitledto the position and therefore wouldnot have needed to search for areason to protect our wounded egos.We all would have found our ownways of dealing with the disappoint-ment by deciding it “wasn’t in thecards” or using the experience toprompt us to do better/try harder inthe future. Even if it had crossed ourminds that there was somethingunfair about our being rejected, wehad a hard time identifying with aperson who would have scanned theentering class wondering if any of thenon-whites had lower G.P.A./L.S.A.T.scores than she did.

After being rejected, presumablybecause of the paleness of their skincolor, Barbara and the class that sheis a representative of then spent thecountless hours that they could havebeen working towards a J.D. at a lesselite school attempting to get thecourts to vindicate these perceivedwrongs. So what does Barbara get forher troubles? Justice Sandra DayO’Connor tells her that her perception

is wrong. It’s not because she waswhite that she was rejected butbecause the school had determinedthat she was ordinary. If she hadbeen more interesting she might havegotten in. In fact, other white peoplewith lower G.P.A./L.S.A.T. scores thanhers had gotten in. Proof that the U.of Michigan rejected her on hermerits not on the color of her skin.Not only that but if the school wantsto look to a person’s racial/ethnicbackground to determine if they aremore interesting than Barbara, theschool can do that as long as they doso on a case by case basis and do it ina subjective, “holistic” way.

My subjective response to this typeof rejection was “OUCH!” Granted I’venot experienced racial discriminationbut I’d much rather think I’d beendiscriminated against because I waswhite rather than because I was ordi-nary. I can do something about beinginteresting, have been working onthat for as long as I can remember. Ifthe law school tells me they don’twant me because I’m white, I shrug,nothing I could have done aboutthat. If they tell me they don’t wantme because I’m boring, I have failed.

I wonder how Barbara’s woundedego is handling the Court’s decision.Of course now she’s a famous loserwith her name immortalized in aSupreme Court opinion & opportuni-ties to do “poor-me” interviews. Shemight even get a book deal out of theordeal. After the furor dies down shecould re-apply to the law school. Shemight even consider Harvard. Becausenow she’s interesting.

THE OPINION ’S OPINION PAGEGrutter Commentary/Meta-Opinion

We heard of a student who was1L last year and got a job with alocal city attorney’s office, whereher ability to become a student-certified attorney was ofparamount importance, since mostpublic interest lawyers spend themajority of their day in court andmany offices depend on studentcertified attorneys to handle partof the calendars.

Student certification requires a2.0 GPA and good standing. Thisstudent was waiting for her springgrades, one in particular, since theschool does not assign first yearGPAs until the Spring grades are in.

She got the job in May. Shewaited for her grades to come in.And waited. And waited. Oneprofessor did not turn in gradesuntil the third week of July, and,unfortunately, this student had towait for that professor. She spentmany hours shadowing the attor-ney’s in her office, but could notget any hands on experience untilher student certification camethrough.

Now she’s certified, but thesummer is over and school hasbegun. Maybe professors couldthink about this aspect whendeciding when to get grades in.Some students need those grades,especially after first year and whenapplying for jobs for the summer.

Hearsay

The Opinion wants to know YOUR opinion. Tell us what you think: [email protected]

The Muse

Last year at the one stress manage-ment PLP I managed to attend, theseminar leader asked the studentswhat was currently stressing themout. One student voiced what wewere all thinking, “Having to come toschool on a Saturday morning toattend a stress management PLP”. Theaudience applauded, the leadersmiled sympathetically and went onto elicit other responses, circumvent-ing what could have been a lively,even stress-relieving, discussion.

Granted, deep breathing & counsel-ing, two suggestions from that PLP,can take the edge off the law schoolexperience. So maybe having to be atschool on a Saturday morning wasn’ta complete waste of time. Then againmost of us can come up with optionssans seminar, albeit some options arehealthier than others. Regardless ofone’s choice of stress relief, however,nothing can completely lift the sheerweight and oppressive nature of our3-4 year tenure here. For what it’s

worth, according to lawyers whoattended school 20-30 years ago, theprocess has always sucked. Justknowing that has been reassuring.

Here are a few tips to make the2003-2004 school year a less onerousexperience. Consider them NewSchool Year Resolutions.

1. Use that study group as a supportgroup. When you find yourselvescommiserating about a certainlegal topic, go with it. Don’t apolo-gize for not studying. Venting willimprove your performance in thelong run.

2. Take out a magazine subscriptionthat has nothing to do with law.Try movies or sports. Skip theparts in which the movie/sportsstar has been arrested or issuing/being sued.

3. Have one conversation a day withsomeone not connected to schoolin any way. Call your mom or bestfriend. They will inevitably askhow school is going or what you

think of the latest legal contro-versy in the news. Politely resistand tell them you’re trying to takeyour mind off school for a change.

4. Instruct a loved one/roommate tomonitor your reading habits. Whenyou have exceeded X number ofhours with your nose in a book perday/week, they should demand“Put the book down and stepaway”. If you don’t treat yourstudying as something that canjeopardize your relationships, itwill.

5. Think twice about joining anorganization for the sake ofresume building. Make sure thegoals and philosophy of the groupmatch your own. Time and energyspent in meetings for somethingyou’re not committed to will createresentment that an impressiveresume cannot compensate for.

6. Why are you here anyway? Is it tofight some certain injustice orright some wrong? In the midst of

springing executory interests infuture estates or the interveningsuperceding cause as a defense tonegligence you may/will/shouldbegin to wonder what you aretaught in law school has to dowith what brought you here in thefirst place. Take on faith that tobecome that great lawyer you wantto be this is what you go through,whether or not it passes the Rule401 relevance test.

7. Remember only you can preventforest fires. If that last sentencedid not make you go “huh?” youmay be beyond the point at whichthis list can help you. Or you’rejust not paying close enoughattention. Try deep breathingand/or counseling and revisit thislist at mid-term.

Tips for the New Year

Page 7: William Mitchell College of Law Student Newspaper August ......William Mitchell College of Law Student Newspaper August 2003 By Christy Yang Welcome to William Mitchell College of

Page 7The Opinion • August 2003

On the weekends, I like to wake upand find something to watch on TVwhile eating my breakfast in theearly afternoon. Without cable or asatellite dish on top of the house,though, my options are limited towhatever’s on the local networks, so Igenerally just flip through the all tenchannels until my thumb gets tired.

When I finally put down the remotecontrol, it sometimes looks like aninvisible thumb is still pressing thebuttons because the screen keepschanging really quickly. I eventuallyrealize that it’s one station flippingfrom camera shot to camera shotwhen the commentator mentionsthat, once again, Tiger Woods isseventeen strokes ahead of thecompetition. Ah, golf. A sport wheresomeone can circle a tiny white ball,squat down and look at it from sixdifferent angles, then take a swing atit with a long stick and knock itstraight into a nearby pond.

But it’s apparently not an entirelyboring process. After all, there areplenty of people standing behind theropes, watching in complete silenceduring that process of intricateanalysis before the ball gets drivenonto an entirely different fairway. Ithink they start cheering after that.Or maybe they emit a collectivemoan, just like when someone missesa putt by several inches—then he’sstuck winning some amount ofmoney in the range of only $850,000instead of $1,000,000. And then he’soff to play for another huge suitcasefull of $100 bills the next weekend.

Aside from the plates, jackets,trophies and power tools handed outat the end of these tournaments, I’mflabbergasted at how much money aprofessional golfer can make in oneyear. If you manage to win thatmillion dollar check only ten timesthroughout the year, you’re alreadymaking more money than almostanyone in professional sports. Asidefrom straining on your eyes to seethe flag at the end of the 14th hole,what kind of physical skill does ittake? Swinging your arms really hard.If their aim was good enough, I imag-ine the country club groundskeeperscould play better than almost all ofthe individuals who hand over amultitude of $100 bills to maintaintheir memberships every month.

The question remains: how theheck does the Professional GolfersAssociation raise so much money thatslips through their collective fingerson such a regular basis? Withcomparatively tiny club membershipfees as well as bar proceeds for thosewith an aversion to using drinkingfountains (why drink city water whensparkling water comes… withsparkles?), how do they do it? Is the

process like other professional sports?Probably not. You can’t really fit a

stage on a par-4 hole for a rockconcert, nor would you want to—younever know what sort of substancesthe band members have been usingand you wouldn’t want an emptysand trap the next morning.Merchandise like Jack Nicklausbobble-head dolls or “Ernie [Els] 4MVP” license plates probably wouldn’tsell in large numbers. Popcorn andpretzel stands at the entrywaysmight draw in more sports enthusi-asts, but crunching and belchingmight take away from the vegetativeatmosphere surrounding the course.Maybe they just charge spectators$5000 apiece to stand around andwatch such an adrenaline-boostingactivity.

Now, I’ll be the first person toadmit that I’m not the best source ofinformation about golf. Most of myexperience aside from watching theTV change channels by itself comesfrom mini-putt courses. But I’m good,dammit! If you put a windmill and aramp on the green, I’d sink the ballin three strokes, no problem. When itcomes to using a club other than aputter, though… I had the unfortu-nate opportunity of discovering theresults when I made my first visit to agolf dome.

I had a friend on the golf team inhigh school—one day, I had thisridiculous idea that it might be funto accompany her to practice. When Igot inside the driving range, she gaveme a tee, a bucket of balls and one ofher clubs. Thus came the realizationthat in the best-case scenario, anysuitcases I’ll be carrying in the futurewill be filled with wrinkled clothes orperhaps very small drinking foun-tains.

I’m blaming the results on theclubs for the sake of my own dignity,because if anyone aside from myfriend had been paying attention, thedome overhead would have amplifiedthe collective moan a whole lot more.My first attempt dribbled forward offthe tee like I was on a mini-puttcourse instead of swinging with a3-iron. So did the second and third.When I finally got the ball off the teeand off the ground at the same time,it went soaring through the air… tothe right. The club moved back, thenforward like it was supposed to, butthe golf ball hooked so much that,for all I know, it swerved backwardsand left a big dent in someone’s headat the far side of the driving range.Needless to say, I was ready to gohome shortly after arriving.

Maybe things would be different if Iwere on a real golf course, though I’dprobably be satisfied with a 150-overpar after the first nine holes by rely-ing solely on my trustworthy putter.If not, I’d have to worry aboutgetting the ball off the tee and theground while steering it in a rela-tively straight direction, doing themall in the same swing. Therein liesthe problem. If the previous trendcontinued, I’d also have to worryabout getting the ball out of sandtraps, undergrowth and trees, whereit would likely be adopted into abird’s family as a little bumpy egg ofits own.

And then there are the waterhazards. Given my current financialstate as a law student, I wouldn’twant to leave any golf balls behind,

especially since I might set anotherone down at the edge of the pond,swing the club and send it curving upand backwards to make a nice, bigsplash next to the first ball. I’d haveto wear galoshes instead of thoselittle spiky golf cleats, but I’d proba-bly save a couple bucks for every tripthrough the course (over time, thatcould tally up to pay for my first one-month membership at the club twelveyears ago).

I should probably just leave theballs where they land. I mean, whatif the rumors are true about thoseponds being filled with alligators(that got flushed down the toilet andgrew to be thirty-three feet long, noless)? I’d be having enough troublefighting man-made obstacles to movethrough the course, but fightingnature at the same time? It’s not likeI’d be running around and holding upa metal club in a thunderstorm, butelectrocution and getting your leggnawed off both sound like reallyunpleasant experiences.

Still, alligators generally stay whereit’s warm and humid, feasting on thelegs of old people who visit downthere during the winter months—they can’t run away as fast. Uphere… would I have to worry aboutnortherns attacking my ankles? Loonspecking out my eyes? Squirrels tryingto gather my nuts? Maybe animalsaren’t my problem. Maybe I’m justparanoid because I could get struckby lightning once, after which peoplewould expect me to keep moving todifferent places on the golf course.

Thunderclouds have a lot of energy

inside them, but watching golfdoesn’t provide me with any whenI’m trying to wake up in the after-noon. Guess I’ll just turn the TV offand rummage around in the fridge tosee if I can find something to eatthat doesn’t taste like a suitcase.Maybe I’ll find something to drink,too. Preferably something withsparkles.

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Page 8: William Mitchell College of Law Student Newspaper August ......William Mitchell College of Law Student Newspaper August 2003 By Christy Yang Welcome to William Mitchell College of

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