THE NEXT GREAT BATTLE OVER AFFIRMATIVE ACTION

By ADAM COHEN/ANN ARBOR

In the war being waged against affirmative action, the most potent weapon of all may be a harmless-looking sheaf of papers stashed in the book-lined office of Carl Cohen, a philosophy professor at the University of Michigan. The documents, which Cohen obtained by filing a Freedom of Information Act request, contain the top-secret charts and grids the university uses in selecting its incoming class. With their frequent references to the race of applicants, and apparent use of different and lower selection criteria for minority applicants, Cohen's materials are the kind of evidence that make a conservative litigator's pulse race. "All you really need for a lawsuit is contained in these pieces of paper," says Terry Pell, a lawyer with the Washington-based Center for Individual Rights, which litigates on behalf of a variety of conservative causes.

In fact, Cohen's documents are at the heart of a potential landmark lawsuit that could ban the use of race in college admissions. CIR is representing a group of white students turned down by the University of Michigan who, it contends, would have been admitted under the standards applied to minority applicants. Conservative strategists have come to view the federal courts as their best ally in the battle against affirmative action. Proposals to roll back racial preferences have gone nowhere in Congress. Affirmative-action foes won big in California last year with Proposition 209, but that victory has turned out to be difficult to repeat in other states. The federal judiciary, however, is proving far more receptive. Two years ago, the Supreme Court showed a distinct willingness to strike down minority-business set-aside programs. And in Hopwood v. Texas, a challenge to affirmative action at the University of Texas Law School, a federal appeals court held that race cannot be used as a factor in admissions.

The affirmative-action case of the moment is Piscataway v. Taxman, now before the Supreme Court. White teacher Sharon Taxman claims her school board violated her rights when it made a racially based decision to lay her off rather than an equally qualified black colleague. While Piscataway is important, and will doubtless reveal a lot about the Supreme Court's thinking about the constitutional limits on racial preferences, the court's decision is likely to be limited to the narrow context of layoffs. If the Michigan case reaches the high court--and many conservatives are betting it will--it could result in a far broader ruling that dramatically rewrites the rules governing admission to the nation's selective colleges and, by extension, to its middle class.

The University of Michigan suit is aimed squarely at the Supreme Court's two-decade-old Bakke decision. In that case the high court struck a careful compromise, upholding the use of race as a plus factor in college admissions but barring the use of quotas or separate tracks for minority and white applicants. Conservatives are well aware that in the past 20 years, every Justice who took the liberal side in the case has left the court. Four Justices are on record as opposing the kind of racial classifications permitted in Bakke, and Justice Sandra Day O'Connor could provide the decisive fifth vote. It is too early to say for sure that the current court will undo Bakke, but the lower federal court that decided Hopwood had no hesitation about saying that Bakke's middle-of-the-road standard is history. "Hopwood is quite plainly a prediction that Bakke is dead on this court," says University of Virginia law professor John C. Jeffries.

With the judiciary's growing skepticism toward affirmative action, conservative legal groups are putting together a well-planned litigation strategy designed to push the law in their direction. And they have a number of good reasons to target the University of Michigan. Its sheer size makes it more likely than a small school to employ time-saving mechanisms such as the grids Cohen obtained. Charts like these, with what appear to be different recommended outcomes for white and minority applicants, may prove hard for the university to defend in court. And as a public institution, Michigan is subject to freedom-of-information laws requiring it to divulge admissions documents that a private school would probably be able to keep secret. Despite these selling points, Pell insists improper racial preferences are so widespread in higher education that "it almost didn't matter where we brought [the suit]."

Still, in their calculated approach to litigation, the anti-affirmative action lawyers at CIR bear an uncanny resemblance to their ideological opposites in the N.A.A.C.P. and the A.C.L.U. a generation ago. CIR has benefited from a network of conservative foundations eager to bankroll litigation aimed at wiping out racial preferences, much as civil rights groups have traditionally gone to liberal foundations for funding. CIR has brought in an ideologically sympathetic private lawyer to work on the Michigan case pro bono, as liberal groups have long done in their own cases. And CIR has tapped into grass-roots support at the local level, another longtime tactic of civil rights groups. In the Michigan case, four Republican state legislators used their in-state contacts to round up scores of white applicants turned down for admission to the university. From this pool, CIR attorneys selected the lawsuit's two named plaintiffs.

The lead plaintiff, Jennifer Gratz, is the kind of student any college would want to admit. A policeman's daughter who attended public school in a working-class Detroit suburb, Gratz had a 3.76 GPA in high school and scored a 25 on the ACT, the college-admissions test that serves as an alternative to the SAT. She was a math tutor, a blood-drive organizer, a volunteer at her school's "senior citizens' prom," a cheerleader and homecoming queen. Gratz had once hoped to become a doctor, but when she was turned down at Ann Arbor and forced to attend a less selective state school, she gave it up. "I started to question what I wanted to do, and I started to question myself," she says. Gratz's attorney, Kirk Kolbo, says her rejection highlights everything wrong with the system: "You have young people who do what we think are the right things--they work hard, they're engaged in their community. But they find that ultimately, what can be dispositive against them is the color of their skin."

But school administrators argue that their admissions policies are necessary to ensure that students of all backgrounds have access to a University of Michigan education and that its graduates are prepared for an increasingly diverse America. Even under the policies being challenged in the lawsuit, black enrollment stands at only 8.9% in a state that is about 14% black. "Admitting a diverse class of students is absolutely essential to us doing our job," says university provost Nancy Cantor. If race is eliminated as a consideration, blacks and other minorities would probably be even more underrepresented on campus. Everyone admitted to the school is considered on an individual basis, Cantor says, looking at a broad array of factors the university has determined to be relevant: high school grades, test scores, but also whether the applicant lives in-state, comes from a rural area or has parents who are alumni. Race is just one more of these plus factors that the university throws into the mix, administrators insist.

The stakes in the lawsuit are high. No one knows exactly what the impact of eliminating or scaling back the use of race in the admissions process would be. But there is anecdotal evidence suggesting that the number of underrepresented minorities on campus could decline sharply. A year after Proposition 209's adoption, UCLA's 381-student first-year law-school class has only 10 black students, a 30-year low. Berkeley's 267-member first-year law class has only one black. To affirmative action's defenders, the precipitous declines at these schools are warning signs that selective schools are in danger of returning to the kind of overwhelmingly white student bodies they had before the civil rights movement.

Critics of the university's admission process insist they also favor diversity. That usually sounds strained coming from affirmative-action foes. But Cohen points to his own lengthy progressive resume. He once headed the A.C.L.U.'s Ann Arbor chapter and was known during the Vietnam War era as "the long-hair guy" for his work lobbying public schools to let students with shoulder-length hair attend class. He has long given money to the A.C.L.U. and the N.A.A.C.P., and still does, he says. But Cohen says he parted ways with the civil rights mainstream because he wants to see diversity achieved through better outreach programs and other approaches that don't rely on different standards for whites and minorities. So far, however, affirmative action's critics have been more successful challenging diversity programs that don't meet with their approval than developing effective ones that do.