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July
1, 2003, 9:10 a.m.
Michigan Impossible
Grutter
compliance may be a problem.
By Peter Kirsanow
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he cheers from the pro-preference crowd after the issuance of the Supreme
Court's Michigan decisions ("Michigan"), Grutter v. Bollinger
and Gratz v. Bollinger, are wildly premature. The strain
of crafting an opinion upholding a baldly unconstitutional racial-preference
program may have caused the majority to blunder — not simply by making
a hash of the strict-scrutiny standard that has long served as a bulwark
against racially discriminatory policies, but by establishing guidelines
for preference programs that most colleges will not be able to meet and
providing powerful ammunition to preference opponents who challenge such
programs.
Although Michigan
renders preference programs extremely vulnerable to legal assault, the political
reality is that the Supreme Court has spoken, and that suggests a finality
to the issue that dispirits many preference opponents. A review of post-Michigan
commentary reveals a gathering consensus among conservatives to just "move
on." We fought the good fight and lost — maybe it's time to take
a different tack, such as racial-privacy initiatives, and hey, if they don't
fly, maybe in 25 years it'll all be over anyway.
One senses uneasiness,
almost dread, among preference supporters that should inspire confidence
among supporters of equal protection. After all, as Justice Thomas's valiant
dissent instructs, if equal treatment is a principle worth fighting for,
we should not suspend the fight for 25 years solely on the basis of muddled
jurisprudence.
Indeed, the Potemkin
village of preferences erected by Michigan is so rickety that just one
tactically sound lawsuit will level the whole regime. But strewn throughout
the various opinions in the dual cases are not one, but multiple
suggestions as to how to attack preferential admissions. Justices Rehnquist,
Scalia, and Thomas note that the majority's opinion is a screaming invitation
to further challenges, with Scalia in particular providing a detailed
roadmap for litigation.
A review of the roadmap
follows, but first, a brief examination of what colleges will do to comply
with Michigan.
COMPLIANCE
At this very moment college administrators are huddled with counsel to
determine how best to comply with Michigan. The problem, as more fully
described later, is that such "compliance" may ultimately be
an exercise in futility, because it remains unclear how race can be applied
as a mere "plus" factor while still achieving the desired "critical
mass" of minority students.
Nonetheless, astute
counsel will likely advise colleges to do the following:
1. Articulate
a compelling state interest.
The interest stated by UM Law School was the educational benefits flowing
from a diverse student body. This will probably be parroted by every college
in the land. Justice Thomas notes that Michigan's articulation of its
interest and the Court's restatement thereof were inexact. (At times the
Court describes the interest as "student diversity" and at other
times "educational benefits as a result of student diversity.")
Thomas maintains that a close review of UM's arguments shows that the
precise interest is more properly stated as "the educational benefits
of a diverse student body at an elite school." Preference proponents
will undoubtedly dispute that the "elite school" clause is part
of the interest, because otherwise, the number of schools capable of articulating
a lawful interest in diversity will be significantly reduced.
2. Compile evidence
in support of the compelling interest.
The Court deferred to UM Law School in articulating its interest because
the First Amendment purportedly grants educational institutions broad
autonomy in defining their respective missions. The Court therefore gave
UM a presumption of good faith in discharging its mission. However, a
showing that the presumption is misplaced could prove fatal to preference
programs' survival. Colleges will seek to avoid a claim of bad faith by
adducing social-science evidence in support of their position that educational
benefits flow from a diverse student body.
3. Consider race-neutral
alternatives.
Even the Grutter Court's strict-scrutiny analysis requires colleges
to consider available race-neutral alternatives such as the percentage
plans currently in use in California, Florida, and Texas. Colleges needn't
exhaust these alternatives before implementing a race-conscious plan —
the Court recognizes that some race-neutral alternatives may not achieve
the desired critical mass of minority students. Rather, consideration
of race-neutral plans should be "serious." Colleges should consider
experimenting with race-neutral alternatives before implementing a race-conscious
plan. Counsel will advise colleges to copiously document their analyses
of race-neutral alternatives and any reasons for their rejection.
4. Develop a Michigan-like
race-conscious plan.
This is the tricky part. If there are no reasonably adequate race-neutral
alternatives, colleges should develop a narrowly-tailored plan to further
the compelling interest of deriving the educational benefits that flow
from a diverse student body (at an elite university). The elements of
such a policy include, at minimum, the following:
(a) A determination of what constitutes a critical mass of minorities.
The "critical mass" or "meaningful numbers" of minorities
is the level at which minorities will not feel isolated and will feel
free to express themselves without concern that they are necessarily representing
the viewpoints of their particular racial/ethnic group. Divining these
figures is akin to determining the precise location of a photon at a given
point in time (apologies to Neils Böhr), but institutions should
back up their determinations with social-science data.
(b) A determination of how to reach the critical mass consistent with
Michigan.
Michigan requires that there be a "holistic, individualized"
review of each applicant file. Obviously, there can be no numerical bonuses
attached to race/ethnicity or dual admissions tracks on such basis. Applicants
cannot be competitively insulated from one another on the basis of race/ethnicity
and must be assessed using identical selection criteria. (Yes, you read
that right. Identical except for, ahem, race and ethnicity.)
The holistic review
should include a variety of hard factors and "soft variables"
including grades, board scores, extracurricular activities, high school
quality (in the case of undergrad admissions), college quality (in the
case of post-grad admissions), curriculum strength, indices of leadership,
community service, foreign-language fluency, travel, residency (geographic
diversity), personal adversity, family hardship, employment experience,
athletic ability, unusual intellectual achievements, enthusiasm of recommenders,
essay quality, and success in non-academic endeavors.
Race/ethnicity may
only be one of the factors, and it must not be a predominant or decisive
one. The percentage of minorities admitted from year to year should not
be static.
5. Establish time
limits for the program.
Okay, Justice O'Connor's now-famous hope for a 25-year expiration date
for preferences is not binding. But the Court strongly suggests that preference
programs be periodically reviewed and even contain sunset provisions.
Optimally, reviews should be conducted with each admissions cycle to assess
the continued "need" for preferences. The reviews should be
well documented and not perfunctory.
6. Hire a lot
more admissions staff.
Conducting a holistic, individualized review of thousands of college applications
will consume a huge number of man-hours. Michigan's law school receives
only 3,500 applications a year, whereas a sizeable undergrad program may
receive ten times that number. All admissions officers should be thoroughly
trained in how they are to conduct a holistic survey while at the same
time reaching the critical mass of minorities necessary to produce the
benefits sought by the (elite) school. All such officers should be vetted
for personal biases and their work product periodically reviewed for statistically
significant tendencies.
Finally, some counsel
are probably advising colleges to set up reserves (if they haven't already)
for preference-related litigation.
The above are the
obvious requirements. There are many other essential steps colleges should
take, but hey, why make it easy for them? They can consult with attorneys,
social scientists, and diversity experts for years to come.
THE
CHALLENGES TO PREFERENCES
Put simply, enrolling a critical mass of minorities merely to assure that
a percentage of the entering class consists of members of preferred racial/ethnic
groups is patently unconstitutional. So it is imperative that the institution
be able to demonstrate educational benefits flowing from student-body
diversity. (Note that the burden is not on the school to show this in
the first instance, but it must be able rebut a showing that the benefits
are specious.)
This is the most
frustrating part of the Michigan case. As a seemingly exasperated Scalia
notes, the issue of alleged educational benefits was not truly contested
in Grutter. The Court simply took UM's data in support and ran
with it. Had there been a real battle of rival data on this issue, the
outcome in Grutter — including the holding that diversity
is a compelling state interest — may well have been different. But
while frustrating, it is also reason for optimism.
Justice Scalia states
that a court may question whether in a particular setting any educational
benefits flow from diversity. Simply because a court grants deference
to a university's academic determination does not mean a wholesale abdication
of judicial review follows. This is the most glaring vulnerability of
the Michigan-style programs.
UM maintains that
the educational benefits flowing from diversity are: (1) the promotion
of cross-cultural understanding; (2) breaking down racial stereotypes;
(3) exposure needed to prepare for the global marketplace; and (4) having
more spirited classroom discussions.
Assuming, arguendo,
that Michigan's law school can demonstrate the above benefits, the problem
for many other schools is that their fundamental pedagogical missions
differ significantly from UM Law. Consequently, they will be unable to
show the same benefits.
"Preparing students
for a global marketplace" may be arguably relevant for, say, a business
school or school of diplomacy, but it resonates far less for engineering
or technical schools. (The same may be said for colleges or departments
within a university, i.e., an agricultural school versus a school of arts
and sciences or a physics department versus an international-relations
department.)
Therefore, under
Scalia's predicate, claimants who make the following showings may render
a college's good faith suspect:
1. The College's
critical mass is not related to the educational benefits diversity is
designed to produce.
The Court accepted
UM's argument that meaningful numbers of minorities are necessary to encourage
class participation and so that minorities don't feel isolated. The question,
of course, is how a college determines its critical mass. Why does critical
mass mean, e.g., 12 percent blacks but only 8 percent Hispanics? Do Hispanics
need fewer from their ethnic group to be comfortable enough to participate
in class? Where is the data supporting that determination? In fact, the
recent regression
analyses of Profs. Rothman, Lipset, and Nevitte strongly undercut
the claim that any educational benefits flow purely from diversity. And
portions of Michigan's very own study contradict its educational benefits
claim. A lawsuit's discovery process could yield considerable evidence
that the analyses underlying that school's educational-benefits claim
is a complete sham.
2. The college
prefers one underrepresented minority more than another.
Justice Rehnquist noted that if a school's admissions process favors,
say, blacks over Hispanics, it would demonstrate that the critical-mass
formula was simply outright racial balancing and therefore unlawful. In
fact, that is precisely what the evidence in Michigan suggests.
The reason UM treats
one preferred minority differently than another leads to the next and
probably most nettlesome challenge to preference programs.
3. Race/ethnicity
is more than a mere "plus" factor.
The Court prohibits colleges from using race or ethnicity as a predominant
or decisive factor in admissions. Race/ethnicity may only be a flexible
"plus" factor. No one has been able to provide a cogent explanation
of how the "plus factor" works. It is the most important part
of the holistic review formula, a formula more closely guarded than any
since the Manhattan Project, yet it is nothing more than a chimera. Race
is not a mere tie breaker when all else is equal, or just a thumb on the
scale. For if race/ethnicity were only a "plus" rather than
an exponent, many colleges could not remotely approach a critical
mass.
The evidence is irrefutable
that, if race/ethnicity were not the decisive factor, few blacks,
Hispanics, and Native Americans would meet UM Law's admissions threshold.
As noted by University of Texas law professor Lino Graglia, median GPA
and LSAT percentiles for admittees to the country's most elite law schools,
of which UM is one, are 3.8 and 98 respectively. Fewer than 20 black
law-school applicants in the entire country meet these standards.
Consequently, meeting UM Law's critical mass of black students (approximately
30 per class) is utterly impossible unless race is the overriding factor.
The same holds true
for most undergraduate programs. A Center for Equal Opportunity (CEO)
analysis shows that, in order for UM to reach its desired diversity threshold,
black students are preferred over similarly situated whites by a "plus"
factor of 174 to 1. At other colleges this ratio approaches 700 to 1.
Armed with CEO statistics, claimants could easily show that race is more
than a plus and the preference programs are unlawful.
4. The college
encourages, supports, or ratifies racial/ethnic separatism.
A college's assertion that diversity promotes cross-cultural understanding,
breaks down racial barriers, and inspires more lively classroom discussions
fails if the college provides separate housing for minority students,
sponsors minority-exclusive organizations, holds separate graduation ceremonies
for minorities, or conducts minority-only orientation programs. Moreover,
an argument could be made that racialist courses masquerading as serious
ethnic studies and attended almost exclusively by students of a particular
ethnicity undermine the college's stated educational benefits. Even separate
tracks for employer recruitment (minority career days) or preferences
for positions on a law journal may be problematic. Standing alone, none
of the above may rescind the presumption of good faith, but cumulatively
they spell trouble.
5. The college
fails to include other minorities in the calculation of critical mass.
The overt discrimination against Asian Americans (see "The
Non-Preferred Minority") is another ticking time bomb that could
sink the entire preference regime. Asian Americans are "underrepresented"
in a number of facets of American life and they have surely been discriminated
against throughout history. Scalia signals that programs failing to include
minority groups other than blacks, Hispanics, and Native Americans may
forfeit the presumption of good faith.
6. Preferred minorities
graduate at a lower rate than other students.
The presumption of good faith is eroded by a showing that a higher percentage
of preferred minorities drop out than other students, because, presumably,
the all-important critical mass would decline below the optimum level
in the second, third, and fourth years from matriculation. This will be
relatively easy to demonstrate: As Stephan and Abigail Thernstrom note,
about half of young black Americans go to college, but only 15 percent
graduate.
7. The college
hasn't placed limits on its preference program, nor has it examined race-neutral
alternatives.
Although the Court has arguably abandoned durational limits as a component
of strict scrutiny (at least in college admissions), there's enough language
in Grutter concerning endpoints to cause concern. Since Grutter
is somewhat inconclusive on this issue and since time limits have always
been an essential part of narrow tailoring, it's prudent to look elsewhere
for guidance.
The Sixth Circuit's
Michigan decision suggests that preferences be used only until genuine
race-neutral alternatives become available. Percentage plans may fit this
bill right now; or perhaps even plans based on socioeconomic disadvantage,
which some studies indicate would be even more effective at producing
campus diversity than Byzantine race-conscious plans.
The above is only
a partial list of the problems facing colleges that discriminate on the
basis of race. And the First Amendment analysis in Grutter contains
even more surprises for non-college preference programs (a topic
for another time). But it is clear that even if colleges scrupulously
follow Michigan, their preference programs are nonetheless subject to
challenge.
It is equally clear
that a Supreme Court decision on a given topic is a powerful litigation
suppressant, and preference supporters have certainly anticipated the
attacks noted above, so we can expect the rationale for preferences to
mutate once again to avoid a direct hit. Preferences may, after all, be
around for another 25 years, if not forever. But the point is, they don't
have to be.
—
Peter Kirsanow is a member of the U.S.
Commission on Civil Rights. (While constitutional scholars will consider
the very suggestion laughable, none of the foregoing is meant to be taken
as legal advice.)
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