Affirmative action in higher education revisited: 2003 Supreme Court decisions

This is a special edition of the newsletter), as the entire edition is devoted to an evaluation of the use of affirmative action policies in higher education institutions and its implications on law school admissions.


On June 23, 2003, the Supreme Court rendered rulings on two highly anticipated cases regarding the use of race as a factor in student admissions to higher education institutions. In Grutter v. Bollinger, 539 U.S. ___ (2003),1 the Petitioner Barbara Grutter (Petitioner), a Caucasian Michigan resident with a 3.8 GPA and 161 LSAT score filed suit against the University of Michigan Law School (Law School) alleging she was discriminated against on the basis of race in violation of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and 42 U.S.C. Sec. 1981. Petitioner alleged that her application was rejected because the Law School uses race as a predominant factor, giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups. Petitioner further alleged that the Respondents had no compelling interest to justify their use of race in the admissions process. The admissions policy required officials to evaluate each applicant based on all of the information available in the file, including a personal statement, letters of recommendation, an essay describing how the applicant would contribute to the Law School's life and diversity, the applicant's grade point average and Law School Admissions Test score. Officials also looked beyond grades and scores to evaluate "soft variables" such as recommenders' enthusiasm, the quality of the undergraduate institution, the applicant's essay, and the areas and difficulty of undergraduate course selection. The Law School admissions policy does not define diversity solely in terms of racial and ethnic status and does not restrict the types of diversity contributions eligible for "substantial weight." Rather, the policy reaffirms the Law School's commitment to diversity with special references to the inclusion of African Americans, Hispanic, and Native American students, who otherwise may not be represented in the student body in meaningful numbers.

The District Court found the Law School's use of race as a factor in admissions decisions was unlawful. The District Court asserted the Law School's interest in attaining a diverse student body was not a compelling state interest recognized by Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) and is not a remedy for past discrimination. The District Court granted Petitioner's request for declaratory relief and enjoined the Law School from using race as a factor in admissions.

The Sixth Circuit Court of Appeals reversed the District Court's order and vacated the injunction. The Court of Appeals held that Justice Powell's opinion in Bakke was binding precedent establishing diversity as a compelling state interest. The Court of Appeals further held that the Law School's use of race was narrowly tailored because race was a "potential plus factor" and the Law School's admissions program was similar to the Harvard admissions program approved by Justice Powell in his Bakke opinion.

The Supreme Court granted certiorari, 537 U.S. 1043 (2002), to resolve the disagreement among the appellate courts as to "whether diversity is a compelling state interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities." (p. 9, Opinion of the Court). The Court held that the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI, or Section 1981.

In Gratz v. Bollinger, 539 U.S. ___ (2003),2 the Court issued a very different holding regarding the use of race as a factor in undergraduate admissions at the University of Michigan.3 Petitioners Gratz and Hamacher, both of whom are Michigan residents and Caucasian, applied for admission to the University of Michigan's (University) College of Literature, Science, and the Arts (LSA) in 1995 and 1997, respectively. The University's Office of Undergraduate Admissions (OUA) implements written guidelines in reviewing applications received. The OUA considers a number of factors in making admissions decisions including high school grades, standardized test scores, high school quality, curriculum strength, geography, alumni relationships, leadership, and race. The University's guidelines utilize a selection method under which every applicant from an underrepresented racial or ethnic minority group is automatically awarded 20 points of the 100 needed to guarantee admission. The Petitioners filed a class action alleging the University's use of racial preferences in undergraduate admissions violated the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and 42 U.S.C. Sec. 1981. The Court found that the University's undergraduate admissions policy awarded mechanical, predetermined diversity "bonuses" based on race or ethnicity. The Court held the University's use of race in its undergraduate admissions policy is not narrowly tailored to achieve Respondents' asserted interest in diversity and violates the Equal Protection Clause, Title VI and Section 1981.

The University of Michigan's Web site contains a letter addressed to the University of Michigan Community from Mary Sue Coleman, President of the University, written on the date of the historic Supreme Court decisions indicating pride in the University. (See <>). President Coleman indicated that the Court's decisions were not only a review of the policies of the University, but also a review of its principles. She referenced two important messages from the Court: one, the "green light" to aim for ethnic and racial diversity in the classroom and two, a "pathway" to achieve such diversity. She indicated that the University would modify its undergraduate admissions process to be in line with the holistic process that the Court affirmed in the law school admission process. President Coleman pledged to provide the leadership to recruit the best and most diverse student body within the guidelines of the Court's landmark decisions.

While it is the province of writers and editors of law review case notes to render a traditional review of a Supreme Court case, this article is intended only to bring to the readers of the Minority and Women Participation newsletter some of the provocative issues and underlying assumptions that are raised in the Court's decision in Grutter regarding societal factors as they relate to law student admission at one of the most prestigious law schools in our country. The following is not meant to be an exhaustive or definitive analysis, but rather a first-person perspective by the co-authors aimed at inviting readers to thoroughly review this compelling decision by the Court. As the authors are lawyers from different backgrounds working together in the representation of educational clients, we decided to provide our joint perspectives on this issue of national importance. In order to provide our readers with a better understanding of our perspectives, detailed below is a thumbnail sketch of the authors' personal histories.

Personal histories of the authors

Vickie A. Gillio

In reviewing a Supreme Court decision on the use of affirmative action in law school admissions, the perspective of this author in part comes from my own background. I am the grandchild of immigrants to the United States in the early 1900s from Southern Italy and Eastern Europe. One grandfather had virtually no formal education and worked first in the coal mines of Pennsylvania and then as a day laborer in Chicago. The other grandfather attended New York City public schools and later became a world-renowned linguist. My father was the first child in his family to graduate from high school and his dream to become a lawyer was embraced by his daughter. I was raised in the Humboldt Park neighborhood in Chicago. I attended public schools and later attended Niles East High School in Skokie, Illinois. I graduated from St. Norbert College majoring in sociology and proudly served as a student trustee. I attended law school at the University of Illinois, College of Law. From my recollection, less than 10 percent of my entering class at the University of Illinois, College of Law were women and/or minorities. I subsequently had the opportunity to serve on the Board of Visitors for the College of Law at a time when women comprised nearly one-half of the student body. It is from this personal perspective that I viewed with interest the legal analysis and underlying societal issues referenced by the Court.

Joy A. Roberts

As an African American woman born in Chicago and raised in Evanston, Illinois, I attended Evanston public schools, including Evanston Township High School. In the mid-1990s, I attended the University of Michigan as an undergraduate student. I attained my Juris Doctor degree from Chicago-Kent College of Law, Illinois Institute of Technology in 2000. From my recollection, there were 15 African American students in my class. As an African American woman, a proud alumna of the University of Michigan, and as a relatively recent law graduate, I was acutely interested in the companion affirmative action cases and found the Court's decision in Grutter to raise some compelling notions about race and the sociological state of our Nation.

Joint & Individual Perspectives

Having shared the authors' backgrounds, we now turn to the Court's Opinion and provide our perspectives on significant language used by the Court. This article will review salient issues addressed by the Court, in particular, the notions of: (1) critical mass; (2) deference to educational institutions; and (3) "the 25 year" possible sunset.

I. Critical Mass

In the plurality Opinion, Justice O'Connor references one part of the Law School's admission policy as follows, "By enrolling a 'critical mass' of [underrepresented] minority students," the Law School seeks to "ensur[e] their ability to make unique contributions to the character of the Law School." (p. 3, Opinion of the Court). The decision references the current Dean of the Law School, Jeffrey Lehman's testimony that critical mass was not quantified in numbers or percentages, but meant numbers where "the underrepresented minority students do not feel isolated or like spokespersons for their race." (p. 6, Opinion of the Court).

The Court recognizes the concept of critical mass and the educational benefits that diversity is designed to produce such as promoting cross-racial understanding, breaking down racial stereotypes, and enabling students to better understand students of different races. (p. 17-18, Opinion of the Court). The Court acknowledges that these benefits are "important and laudable" because a diverse background of students allows for "livelier, more spirited, and simply more enlightening and interesting" classroom discussion. (p. 18, Opinion of the Court).

The Court further discusses the benefits a diverse student body has on creating an increasingly diverse workforce and society. Major American businesses assert in briefs submitted to the Court that the skills necessary for a global marketplace "can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints." (p. 18, Opinion of the Court). Briefs submitted by high-ranking retired officers and civilian leaders of the United States military assert that based on their experience, "highly qualified, racially diverse officer corps ... is essential to the military's ability to fulfill its principle mission to provide national security." (p. 18, Opinion of the Court).

The Court additionally asserts that "universities, and in particular, law schools, represent the training ground for a large number of our Nation's leaders ... [and] In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity." (p. 20, Opinion of the Court). The Court continues by acknowledging that the "Law School does not premise its need for critical mass on 'any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue'. . . To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School's mission, and one that it cannot accomplish with only token numbers of minority students." (p. 20-21, Opinion of the Court).

Thus, the plurality Opinion defers to the Law School's educational judgment that diversity is essential to its educational mission. The Court held that the Law School's goal of attaining a critical mass of underrepresented minority students does not equate to a quota which it would find unconstitutional.

The dissent by Justice Scalia, with whom Justice Thomas joins concurring in part and dissenting in part, argues the plurality Opinion will lengthen controversy and litigation. Justice Scalia argues lawsuits may challenge the bona fides of institutions' commitment to educational benefits of diversity. According to Justice Scalia, "Tempting targets, one would suppose, will be those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses--through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies." (p. 3, J. Scalia's Opinion). Justice Scalia asserts there may be lawsuits arguing that racial preferences are above or below the "critical mass." (p. 3, J. Scalia's Opinion). He further asserts litigation can be "expected by minority groups intentionally shortchanged in the institution's composition of its generic minority 'critical mass.'" (p. 3-4, J. Scalia's Opinion). In Justice Scalia's opinion, there is no exception to the Constitution's prohibition against discrimination. (p. 4, J. Scalia's Opinion).

In Justice Thomas' Opinion, with whom Justice Scalia joins as to Parts I-VII, concurring in part and dissenting in part, Justice Thomas references a speech given by Frederick Douglass to a group of abolitionists abhorring benevolence and asking for justice. Justice Thomas' Opinion argues there are other ways to "better" law school education than ensuring a "critical mass." His Opinion further argues that there should be no constitutional protection for "selective admissions." (p. 21, J. Thomas' Opinion). According to Justice Thomas, "The initial driving force for the relocation of the selective function from the high school to the universities was the same desire to select racial winners and losers that the Law School exhibits today. Columbia, Harvard, and others infamously determined that they had 'too many' Jews, just as today the Law School argues it would have 'too many' whites if it could not discriminate in its admissions process." (p. 22, J. Thomas' Opinion).

However, Justice Thomas' Opinion agrees with the Court by asserting, "under today's decision, it is still the case that racial discrimination that does not help a university to enroll an unspecified number, or 'critical mass,' of underrepresented minority students is unconstitutional." (p. 28, J. Thomas' Opinion).

II. Deference to an educational institution's judgment

In rendering its decision, the Court indicated it was deferring to the educational judgment of the law school that diversity is essential to its educational mission. (p. 16, Opinion of the Court). The Court held that its scrutiny was strict while taking into account complex educational judgments in an area, which the Court found, rested primarily within the expertise of the University. The Court recognized a constitutional dimension to the principle of student body diversity as a compelling state interest in educational autonomy grounded in the First Amendment. (p. 17, Opinion of the Court). According to the Court, "The freedom of a university to make its own judgments as to education includes the selection if its student body." (p. 17, Opinion of the Court, referencing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 at 312 (1978)). The Court referenced the Law School's assertion that a "critical mass" of underrepresented minorities is necessary to further "its compelling interest in securing the educational benefits of a diverse student body." (p. 21, Opinion of the Court). The Court again deferred to the Law School's judgment by asserting, "We take the Law School at its word that it would 'like nothing better than to find a race-neutral admissions formula' and will terminate its race conscious admissions program as soon as practicable." (p. 31, Opinion of the Court).

Justice Scalia's Opinion references the Court's deference to the university's academic decision. Justice Scalia argues "deference does not imply abandonment or abdication of judicial review." (p. 3, J. Scalia's Opinion, referencing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).

Justice Thomas questions the deference given to the Law School as inconsistent with the Constitution. According to Justice Thomas, "...the Constitution [does not] countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of 'strict scrutiny.'" (p. 2, J. Thomas' Opinion).

In further discussing the issue of deference to an educational institution's judgment, Justice Thomas asserts that the State of Michigan has "no compelling interest in having a law school at all, much less an elite one." (p. 10, J. Thomas' Opinion). According to Justice Thomas, "the absence of a public, American Bar Association (ABA) accredited, law school in Alaska, Delaware, Massachusetts, New Hampshire, and Rhode Island ... provides further evidence that Michigan's maintenance of the Law School does not constitute a compelling interest." (p. 10, J. Thomas' Opinion). He further proclaims, "The only cognizable state interests vindicated by operating a public law school are, therefore, the education of that State's citizens and the training of that State's lawyers." (p. 11, J. Thomas' Opinion).

III. Another quarter of a century, the 25-year hope

The Court first references a 25-year period as to when it previously reviewed the use of race in public higher education in Bakke, where a racial set aside for positions in a medical school class was evaluated. In that case, the Court held that a "State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin." (p. 10, Opinion of the Court, referencing Bakke at 320). The Opinion references the Court's earlier holding in Palmore v. Sidoti, 466 U.S. 429, 432 (1984), "We are mindful however, that '[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.'" (p. 30, Opinion of the Court). In Grutter, the Court indicates that any race conscious policies must be limited in time, and references the Law School's concession in its brief that race-conscious programs must have reasonable time limits. (p. 30, Opinion of the Court). The Court asserts that reasonable time limits can be met by policies with sunset provisions and periodic reviews. The Court, after referencing that it has been 25 years since the Bakke decision and the number of minority applicants with high grades and test scores has increased, found "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." (p. 31, Opinion of the Court).

In her Concurring Opinion, Justice Ginsburg references statistical data demonstrating the current state of education is that many minority students encounter inadequate and unequal educational opportunities. She further asserts that as educational opportunities in lower school education for minorities improve, the number of qualified students for higher education will increase. According to Justice Ginsburg, "From today's vantage point, one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action." (p. 3, J. Ginsburg, concurring).

Justice Thomas concurred with what he described as the Court's holding "that racial discrimination in higher education admissions will be illegal in 25 years." (p. 2, J. Thomas' Opinion).

IV. The authors' point and counter-point on these three issues

Vickie Gillio

Critical Mass

In reviewing the issue of race in admissions, the Justices look to history, sociology, prior case law, and the Constitution. As an underrepresented member of a societal majority group (women), rather than an underrepresented minority group, attending law school in the early 1970s, my experience was clearly not one of participating in a "critical mass." This isolation was at a time prior to the formation of either a Black law student association or a women law student association at the law school. It also was a subset in the greater turmoil occurring on campus with student anti-war protests, the presence of the Illinois National Guard, mass student arrests on campus, and civil rights protests. Thus, as first-year law students, we were studying the rule of law in a greater university context of mass arrests and and protests, unprecedented on American university campuses.

To our law school's credit, when I was a third-year student, the school encouraged us to engage in dialogue with faculty as to how our isolation as women affected our educational experience. The second- and third-year classes had significantly more women and a women's law student association was formed. It was then that the sense of isolation began to diminish. However, in this context, we clearly were called upon to be the voice of women as part of our law school experience. While addressing academic issues, we were also addressing the lack of a women's restroom on the first floor of the law school.

Educational Deference

The deference given to a higher education institution by our Supreme Court is an awesome responsibility. It is certainly an important recognition by the Supreme Court that deference is given to the mission statements of colleges and universities in deciding how selective or elite their institution seeks to be and importantly that diversity is an essential element to the mission of educating lawyers and future leaders of our society. The Court's decision is laudable in its recognition of the educational importance of diversity in the student body and the richness gained by each student from the perspectives of their fellow students. The minority opinions of the Court, however, raise some interesting issues regarding the plurality's assumptions and address some historical decisions by educational institutions that should be given careful thought so history is not repeated. The plurality opinion has safeguarded possible abuses identified by the minority opinions. The individualistic and holistic nature of the Law School's review of race and ethnicity as a plus factor, as opposed to the "mechanistic" assigning of a number to an applicant's admissions score rejected by the Court, ensure a policy consistent with the law.

Justice Thomas certainly raises some hauntingly ethnic based decisions made by elite educational institutions as to how many individuals of one background were found to be "too many qualified individuals" in proportion to their numbers in society. In the present context, what if, for example, the K-12 institutions in our country do a dramatically better job in educating and preparing underrep-resented minority populations and that results in more qualified applicants to elite law schools than the percentage of that underrepresented minority in the general population? The Court's Opinion is there would no longer be a need for these policies and they could be "sunsetted." However, will there be protection to ensure that having addressed educational performance successfully, that there will not be a backlash where qualified applicants are found to be over represented in reference to their percentage in the population? Further, in the present context, what safeguards will be put in place to ensure that any constitutionally consistent policy is not applied inconsistently or abused by applicants? These are all significant challenges for our universities in tailoring policies consistent with the Constitution and reviewing them on a regular basis so that policy makers in our universities recognize the lessons of the past, the realities of the present, and the ever-changing landscape of our Nation.

25-year hope

In my third year of law school, as women law students in the '70s, we met with the Dean and indicated that we were not sure the faculty was aware of our issues and concerns and how certain jokes or being singled out on a continuous basis affected our law school experience. The faculty of the law school voluntarily met one-on-one or two-on-two with women law students. This type of dialogue continued outside of the law school throughout the '70s and '80s. The changing nature of American society 25 years later was reflected in law school class compositions of near equal numbers of men and women. Therefore, Justice O'Connor's reference to a 25-year hopeful sunset in reference to the current law school policy may not only reflect societal changes post-Bakke, but reflects the societal change as affected by the increased number of women in law school admissions over the past quarter of a century. The unanswered question is whether those same assumptions can be made today in the context of current societal conditions as to the underrepresented minorities referenced in affirmative action admissions policies.

Joy Roberts

Critical Mass

The Court's concept of "critical mass" sparked two provocative notions for me: (1) "token numbers of minority students" versus "critical mass" and (2) improving educational opportunities throughout our Nation's educational system. The practical question arises as to what numerically constitutes a "critical mass." For instance, in my 1997 entering law school class, I believe there were approximately 15 African American students out of 282 total students. To my law school's credit, I believe this was the highest enrollment of African American students the law school ever had and perhaps 15 African American students would constitute a critical mass within the confines of a university admissions policy. However, from my recollection, throughout my law school education there was an average of two to three African Americans in any given course, which could range from approximately 15 to 30-plus total students in a classroom. Therefore, the following questions arise: What is a meaningful number of minority students in a classroom? and, Do two or three minority students in a classroom feel isolated and/or as if they are the "voice" for their minority group?

Second, our elementary education system needs to provide enriching substantive training for our youth so that children from diverse backgrounds have an equal footing to compete for the best higher education opportunities. Ensuring diversity and equality of education at the elementary and pre-kindergarten levels is critical, otherwise affirmative action may always exist as a remedial measure for continuing educational inequities.

Educational Deference

Justice Thomas asserts that the State of Michigan has "no compelling interest in having a law school at all, much less an elite one." (p. 10, J. Thomas' Opinion). However, doesn't every state have a compelling interest in having an ABA accredited law school? ABA accredited law schools have satisfied a rubric of strictly scrutinized requirements including, but not limited to, the nature of the school's curriculum, quality of instructors and student body, and extracurricular activities available for further educational enrichment. Justice Thomas argues that because states such as Alaska, Delaware, Massachusetts, and Rhode Island do not have ABA accredited law schools, it is "further evidence that Michigan's maintenance of the Law School does not constitute a compelling interest." (p. 10, J. Thomas' Opinion). Yet, is the measuring stick for a compelling state interest in having a law school based upon whether every state in our Nation has an ABA accredited law school? Simply because Alaska and other states do not have ABA accredited law schools does not equate to Michigan not having a compelling interest in having an ABA accredited law school for in-state and out-of-state students to attend.

Second, Justice Thomas' assertion that there is "no pressing public necessity" in having an elite public law school is questionable. (p.9, Justice Thomas' Opinion). Isn't it plausible that students, parents, and the community where a university is established have a public necessity in having an elite public law school? Can it also be argued that an elite public law school may serve the role of enhancing the quality of other public law schools within the state and nationally in order to maintain a competitive curriculum and training ground for future attorneys across the country? Furthermore, as the Court asserts, if law schools are the training ground for many of our national leaders, then arguably there is a pressing public necessity in ensuring that all students have equal access to the best legal education, whether at a public or private institution, as many legal opportunities are generated for law students based upon the quality or "elite" status of their law school.

25-year hope

The Court asserts, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." (p. 31, Opinion of the Court). However, considering the deeply riddled issues of race and equality in our society, it is uncertain whether the Court's hope can be achieved within the next quarter of a century. In the next 25 years, the issue of race as a factor in higher education admissions policies will surely be revisited in our educational institutions and perhaps in our courts. The more compelling national interest and challenge within the next 25 years is whether our nation will have evolved to a greater understanding of the diverse people that live within our country such that there will be substantial strides toward meaningful racial and ethnic equality. The answer to this challenge will determine when a sunset is needed for affirmative action policies in higher education institutions.



Please note the statements or expressions of opinion or comments contained within this newsletter article do not necessarily represent the view or opinion of the Illinois State Bar Association or the Minority and Women Participation Committee, but rather the view or opinion of the contributors.

1. Justice O'Connor delivered the opinion of the Court in Grutter v. Bollinger, in which Justices Stevens, Souter, Ginsberg, and Breyer joined and in which Justices Scalia and Thomas joined in part insofar as it is consistent with the views expressed in Part VII of the opinion of Justice Thomas. Justice Ginsberg filed a concurring opinion in which Justice Breyer joined. Justice Scalia filed an opinion concurring in part and dissenting in part, in which Justice Thomas joined. Justice Thomas filed an opinion concurring in part and dissenting in part, in which Justice Scalia joined as to Parts I-VII. Chief Justice Rehnquist filed a dissenting opinion in which Justices Scalia, Kennedy, and Thomas joined. Justice Kennedy filed a dissenting opinion.

2. Chief Justice Rehnquist delivered the opinion of the Court in Gratz v. Bollinger in which Justices O'Connor, Scalia, Kennedy, and Thomas joined. Justice O'Connor filed a concurring opinion in which Justice Breyer joined in part. Justice Thomas filed a concurring opinion. Justice Breyer filed a separate opinion concurring in the judgment. Justice Stevens filed a dissenting opinion in which Justice Souter joined. Justice Souter filed a dissenting opinion in which Justice Ginsburg joined as to Part II. Justice Ginsburg filed a dissenting opinion in which Justice Souter joined and Justice Breyer joined as to Part I.

3. The Supreme Court granted certiorari in Gratz v. Bollinger prior to the Sixth Circuit Court of Appeals rendering a judgment.

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September 2003Volume 14Number 1