CINCINNATI – The University of Michigan considers race in deciding which students to accept because diversity improves the education of all its students, the school’s lawyer told an appeals court yesterday.

“In order to achieve that broad diversity, we need to take ethnicity and race into account,” John Payton told the 6th U.S. Circuit Court of Appeals.

Payton said the university considers race among other factors including academic achievement and economic status. The university’s policies do not exclude anyone, he said.

But opponents of the university’s use of affirmative-action policies said they can amount to illegal discrimination against white applicants who may in some cases have better academic qualifications.

David Herr, the lawyer for white plaintiffs challenging Michigan’s undergraduate admissions policies, said the university appears to be using race-conscious policies to try to correct years of discrimination against blacks and other minorities.

“The remedy for that is not having more discrimination – discrimination in the admissions office,” Herr told the court. The court heard two hours of arguments from lawyers in two consolidated lawsuits that contend Michigan’s law school and undergraduate admissions policies discriminate against whites in favor of less-qualified minorities.

The nine appeals court judges – seven whites and two blacks – took both cases under review and are to rule later. A three-judge panel of the court was to have heard the disputes Oct. 23, but agreed to bypass that usual first step for the issue to quickly go before the full court.

Now, whichever side loses could directly ask the Supreme Court to consider an appeal.

Just prior to the hearing, at least 200 activists rallied a half-block from the court building in support of the admission policies. Rain didn’t discourage activists from Michigan, Ohio and Kentucky from holding the rally on Fountain Square.

Activists see the cases as a critical issue for minorities trying to hurdle barriers and boost their career opportunities.

Under a 1978 Supreme Court decision, universities may not use racial quotas but may consider race as a factor when selecting students. Lower courts have interpreted that ruling differently.

Several other federal appeals courts that have ruled in similar cases from California, Texas, Georgia and Washington state have reached conflicting conclusions. Advocates on both sides of the Michigan dispute say it could ultimately be the first one accepted for review by the U.S. Supreme Court.

“It squarely presents the issue of whether diversity is a compelling reason for a state to consider race in providing educational opportunities for students,” said Verna Williams, an assistant law professor at the University of Cincinnati.

The University of Michigan, backed by advocates of affirmative action, has continued to use the affirmative-action policies during the court cases.

It could be weeks or months before a ruling comes from the Cincinnati-based appeals court, which hears cases appealed from Michigan, Ohio, Kentucky and Tennessee.

Advocates who support allowing colleges and universities to consider race when admitting students say it evens the playing field and gives minorities an opportunity at higher education that they might not otherwise receive because of persistent discrimination.