Affirming Diversity at Michigan

In its much-anticipated review of affirmative action, the Supreme Court upheld the educational importance of diversity. But finding the best means to institute diversity will remain a challenge for higher education.

By Ann D. Springer

Amid great controversy, confusion, and debate, the U.S. Supreme Court this June issued its much-anticipated decisions in two University of Michigan cases addressing affirmative action in higher education admissions. The Court was faced with deciding (a) whether the educational benefits of diversity, and the need to defer to educators on educational judgments, constituted a sufficiently compelling state interest to justify racial preferences in admissions, and (b) if so, how such admissions plans could be constitutionally structured. It concluded that diversity could be such an interest, and that plans must be individual and not mechanistic. The Court then promptly adjourned for the summer. Many educators did the same, reviewing the decisions and news coverage in a flurry in June, and then mentally setting it all aside in favor of the joys of summer. But now, as we return to our campuses ready to launch into the new academic year, we need to better understand how these decisions will shape our current and future work. We have next year's entering class to fill and admissions policies to review or craft. What do the cases mean for us as educators? What did the Court say and why? And, most important, where do we go from here?

Twenty-five years ago, the Supreme Court addressed the issue of race in higher education admissions in the highly splintered and contentious decision of Regents of the University of California v. Bakke.¹ (The AAUP filed a friend-of-the-court brief in the case, just as it did in the Michigan cases, urging the Court to give educators deference on such essential academic judgments as the educational value of diversity.) Rather than settling the matter, however, the justices' numerous opinions, concurrences, and dissents in Bakke turned the case into the opening salvo in a long and raging conflict over affirmative action in admissions.

Justice Lewis Powell's opinion in Bakke, issued as the opinion of the Court, endorses educational diversity as a constitutionally compelling state interest. Since then, however, distinguished judges across the country have come down on all sides of the debate, often issuing diametrically opposed opinions. Judges in the United States courts of appeals, the highest courts in the land below the Supreme Court, have ruled, alternatively, that diversity is such a compelling state interest (Smith v. University of Washington, Ninth Circuit), that diversity is not a compelling state interest (Hopwood v. University of Texas, Fifth Circuit), and that it may or may not be (the court couldn't decide in Johnson v. Georgia, Eleventh Circuit). It is amid this morass that the Michigan cases first arose.

Michigan Cases

Brought in fall 1997, the two Michigan class-action lawsuits were filed by the Center for Individual Rights (CIR) on behalf of white students denied admission to the University of Michigan's undergraduate (Gratz v. Bollinger, et al.) and law school (Grutter v. Bollinger, et al.) programs.² The CIR, a public policy law firm that views itself as a conservative version of the American Civil Liberties Union, had been conducting a nation-wide campaign of lawsuits to dismantle affirmative action and had represented the plaintiffs in the Texas and Washington cases cited above.

The Michigan cases were the first opportunity the Court had taken since Bakke to consider squarely whether diversity as an educational goal was a sufficiently compelling interest to support affirmative action in admissions. The Court took both cases, allowing it to analyze both an undergraduate and a graduate admissions program. Moreover, the Court reached beyond constitutional interpretation, which affects only public universities. It made clear that the Michigan decisions apply to every institution that accepts any federal money; in other words, virtually all higher education institutions.

The Michigan cases set a record for the Supreme Court in the number of briefs submitted. Seventy-five distinct briefs were filed on behalf of the university (many with multiple signatories), fifteen were filed on behalf of the student applicants, and five were filed in support of neither party. The briefs supporting the university came from a disparate group: military generals, law students, civil rights and higher education organizations, and major corporations.³ Yet they all voiced the same general theme: diversity in education is essential to quality education, to society, to democratic governance, and to America's future, and without the ability to create this diversity, we risk all of these.

So what did the Court actually decide? In an opinion written by Justice Sandra Day O'Connor in the 5 to 4 Grutter decision, the Court endorsed Justice Powell's decision in Bakke, finding diversity to be a compelling state interest and upholding the law school admissions program. Yet, in the 6 to 3 Gratz decision, Justice O'Connor joined the opinion's author, Justice William Rehnquist, and four other justices in upholding the concept of affirmative action and diversity as a compelling interest but striking down Michigan's undergraduate admissions process for not being tailored narrowly enough.

The legal framework of the Michigan decisions is based on interpretation and application of the Fourteenth Amendment to the Constitution, which provides that "[n]o State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws."

In Bakke Justice Powell interpreted the Fourteenth Amendment to find that racial and ethnic classifications are inherently "suspect" and therefore call for exacting judicial scrutiny. This "strict scrutiny" requirement means that, as the Court reiterated in Gratz, "all racial classifications imposed by government . . . are constitutional only if they are narrowly tailored to further compelling governmental interests."⁴ The Court stated that this careful review is the only way to "determine what classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics."

As Justice O'Connor further explained in Grutter, "We apply strict scrutiny to smoke out illegitimate uses of race by assuring that government is pursuing a goal important enough to warrant use of a highly suspect tool." Thus the debate in Gratz and Grutter came down to two questions: (1) Is diversity in higher education a compelling state interest? and, (2) If a compelling state interest exists, are the Michigan undergraduate and law school admissions plans narrowly tailored enough to achieve that interest constitutionally?

Compelling State Interest

For twenty-five years, courts and legislatures have analyzed and challenged the legal and pedagogical validity of Justice Powell's conclusion in Bakke that diversity in higher education is a compelling state interest. The Michigan cases were so important precisely because they brought this challenge to a head. Recognizing these cases for the litmus test they were, the University of Michigan presented reams of evidence on the educational benefits of diversity—so much, in fact, that the student complainants conceded the educational benefits early on, fighting legally only on whether such educational benefits could be a constitutionally compelling state interest.⁵

Proving the constitutional validity of this argument was essential, because no other tenable legal argument for affirmative action existed on which the university could rely. While the courts have recognized the need to remedy past discrimination as an acceptable justification for affirmative action, that claim is difficult to prove and is ill suited to higher education. It requires proof of direct effects of specific institutional discrimination, rather than just general societal discrimination. Few institutions can afford, logistically or financially, to establish sufficiently strong evidence of their own past extensive racial discrimination, and few want to spend time and money to prove exactly how terrible they were in the past. Some Michigan students and civil rights groups did intervene in the case to argue that past discrimination necessitated Michigan's policies, but the Court summarily dismissed their arguments.

Fortunately, Michigan's efforts paid off. Not only did the Court uphold educational diversity as a justification for affirmative action, but it recognized the need for deference to educators to determine the best educational environment. In fact, the Court made such a strong statement on this issue that the Grutter "affirmative action" decision is also an exceptionally strong academic freedom decision.

Deference to Educators

In an endorsement of Justice Powell's academic freedom argument in Bakke, the Grutter majority opinion affirmed that "given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." Recognizing the Court's "tradition of giving a degree of deference to a university's academic decisions," Justice O'Connor went on to conclude that "good faith on the part of a university is presumed absent a showing to the contrary."

Justice O'Connor noted specifically in discussing the facts of the case that a faculty committee crafted the admissions policy the Court was upholding, that it became the official policy upon unanimous adoption by the entire law school faculty, and that the policy was focused on evaluating applicants with an eye toward their "potential to contribute to the learning of those around them." Having recognized the deference that such academic decisions should receive, she especially acknowledged that the question of the educational benefits of diversity involves "complex educational judgments in an area that lies primarily within the expertise of the university."

Justice O'Connor and the majority did not have to go so far to answer the question at hand. The opinion's strong endorsement of this deference is a clear victory for the freedom of educators, including faculty members, to make the important decisions they are most qualified to make by virtue of their training and expertise, and to do so without undue judicial interference.

Beyond Diversity

The question of diversity as a compelling state interest was the most critical element of the Michigan cases, and the result was certainly a victory for academia. Some feared, however, that the Court would endorse diversity but make the standard for tailoring any admissions process so narrow that it would become a practical impossibility to implement it. Alternatively, others worried that the Court's decision on narrow tailoring might be so unclear that it would be impossible to follow. Although the Court did strike down some of Michigan's admissions policies, neither of these fears came to pass. Considerable room remains for affirmative action in admissions, and the Court's guidance, though a bit murky, is not nearly as vague as some predicted.

To determine what kind of race-conscious admissions plan, exactly, the Court considers to be tailored narrowly enough, it is necessary to read Justice O'Connor's Grutter decision and Justice Rehnquist's Gratz decision together, comparing and contrasting to find the nuggets of consensus. Both rulings purport to follow Justice Powell's Bakke decision closely, quote from it liberally, and seem to concur on the general legal principles. So at least apparent agreement exists on the law. Tension remains, however, on exactly how that agreed-upon legal standard will be implemented when put into practical use.

Individual Consideration

Justice O'Connor and the majority in Grutter found the law school program to be tailored narrowly enough to pass strict scrutiny. Justice Rehnquist and the majority in Gratz (which included Justice O'Connor) found the university's undergraduate admissions policy, which awarded 20 points out of 150 to underrepresented minority applicants solely because of race, to be insufficiently "narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program." Both authors agreed, however, that race can be considered as a "plus" factor in admissions if that factor, as Justice O'Connor explained, is considered in the context of a "highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment."

Although Justice Rehnquist also spoke at some length generally supporting individualized consideration, he did not provide many details on his exact meaning. Justice O'Connor was slightly clearer, noting that the law school policy "does not restrict the types of diversity contributions eligible for substantial weight in the admissions process, but instead recognizes many possible bases for diversity admissions." She found the law school's admissions policy acceptable because of these "many possible bases for diversity."

She further credited the law school for giving substantial weight to diversity factors besides race and noted that it frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants. Yet in this discussion, she also accepted that the policy expresses "longstanding commitment to 'one particular type of diversity,' that is, 'racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against.'" Finally, she was comfortable with the idea that "[b]y enrolling a critical mass of underrepresented minority students, the Law School seeks to ensure their ability to make unique contributions to the character of the Law School."

Critical Mass

The Court accepted in Grutter the university's argument that it was necessary to enroll a "critical mass" of minority students to achieve the educational benefits of diversity and to ensure that a few minority students didn't end up being token representatives of their race. The CIR argued that this claim was simply an excuse for a quota. Justice O'Connor, however, defined quotas as "impos[ing] a fixed number or percentage which must be attained, or which cannot be exceeded, . . . and insulat[ing] the individual from comparison with all other candidates for the available seats." In contrast, she saw critical mass as a permissible goal, not a quota, because it requires only a "good faith effort . . . to come within a range demarcated by the goal itself," not "a fixed number or percentage which must be attained." Thus Justice O'Connor flatly rejected the argument that an affirmative action program is the same as a quota simply because it gives "some 'plus' for race, or [gives] greater 'weight' to race than some other factors."

Bottom Line?

So where do the decisions leave us? First, it is our province, privilege, and responsibility as educators to take diversity into account in ways that create the best possible educational environment. When we do so in admissions, however, we must avoid mechanical point systems, especially ones that give more points to race than to most or all other factors. Both Court decisions emphasize the value of individualistic, holistic, nonmechanical review, and both criticize the point system used in Michigan's undergraduate admissions.

Yet the ultimate conclusion about what type of plan will work and also pass constitutional muster remains up in the air. How does one take race into account in a way that can achieve a critical mass and a diverse student body without overtly quantifying exactly how much weight race is given? Doing so will demand subtle balancing. Perhaps, as Justice Ginsberg mentioned in dissent, it comes down not just to a question of avoiding obvious point systems, but also to an institution's success at increasing the overall stealth level of its process.

The Narrow Misses

Before moving on, it is also worth pausing to note what wasn't required by the Court, which is often as important as what was. First, many feared that the Court would require institutions to consider and exhaust every conceivable "race-neutral alternative" to racial preferences. A requirement to rule out all such alternatives would have made implementation of any policy exceedingly difficult. Among other things, schools would have had to show why every possible race-neutral alternative would not work—a prohibitively expensive and time-consuming proposition.

The Bush administration argued that Michigan's plan was not narrowly tailored because it could and should rely on alternatives such as "percentage plans," (which offer automatic admission to state schools to students in a certain top percentage of their high school classes); lottery systems; extensive minority recruiting; and so on. Addressing this issue, Justice O'Connor noted that narrow tailoring requires serious, good-faith consideration of race-neutral alternatives that can achieve the diversity the university seeks, but does not mandate reliance on such programs. Indeed, Justice O'Connor expressed some doubt about percentage plans, suggesting indirectly that they may not actually be race neutral, that the administration does not explain how they could work for graduate schools, and that they do not allow for individualized considerations.

Fortunately, too, Justice O'Connor clarified that narrow tailoring does not "require a university to choose between maintaining a reputation for excellence [and] fulfilling a commitment to provide educational opportunities to members of all racial groups." Some had argued that Michigan's only interest was in "maintaining a 'prestige' law school whose normal admissions standards disproportionately exclude blacks and other minorities," but Justice O'Connor soundly rejected any requirement of a choice between prestige and diversity.

A second, more subtle omission worth noting is the limited nature of Justices O'Connor's and Rehnquist's approach to the Fourteenth Amendment. In focusing on individualized consideration of different elements of diversity and condemning a system that awards points solely for race, they endorsed the presumption that the best way to "equally protect" all individuals is to treat all as similarly as possible. They allowed for narrow consideration of race as one of many factors because they found a compelling state interest in educational diversity. But their focus was on how similarly applicants can be treated while still having some narrow consideration for diversity.

Equally valid, however, is the argument that admissions policies without affirmative consideration of race have such a negative impact on minority admissions that the failure to affirmatively consider race is itself a denial of equal protection under the law. Justice Ruth Bader Ginsburg, joined by Justices David Souter and Stephen Breyer, alluded to this point in her dissent in Gratz, noting that "[t]he Constitution instructs all who act for the government that they may not 'deny to any person . . . the equal protection of the laws'[;] . . . [i]n implementing this equality instruction, as I see it, government decisionmakers may properly distinguish between policies of exclusion and inclusion."

As she eloquently stated, "Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated." Yet the majority opinion in Grutter accepts a reading of the Fourteenth Amendment emphasizing that considerations of race should be as similar as possible for equal protection to exist.

This narrow approach affects the way people will view the Court's decisions and affirmative action in general. It reflects, too, the schism that divides the Court and the nation, and gives credence to terms like "reverse discrimination"—language that presumes that giving preference to minorities actually "discriminates" against members of the majority, even though members of the majority remain dramatically more privileged than the minority population.

Activist Tim Wise has equated discussing privilege in our society to asking a fish how it feels about water. Privilege is so ubiquitous that members of the majority are often not even aware that it exists, just as a fish cannot conceive of a world without water. It will be a great challenge to move forward under these new decisions while keeping the "water" in the public eye. Thus while the Court's decision is a decided victory for diversity, it also fails to truly recognize systemic disparities and the purpose of the Fourteenth Amendment. In this way, it is a loss for America's greater social conscience.

The Future

This academic year is the first under the "new" order. Admissions offices nationwide will be evaluating their policies and practices and determining how best to meet their institutional commitment to diversity within the confines of the Constitution. The greatest change will be at highly selective and large schools—schools that have the luxury of choosing from many qualified candidates, and those whose large applicant pools have necessitated admissions point systems similar to Michigan's. A move to the individualized review envisioned by the Court may present significant costs—burdens that may fall disproportionately on public institutions, which, in current economic times, may have difficulty absorbing them.

Other institutions, however, may see little or no change. Many schools have open, or virtually open, admissions. Others already conduct individualized reviews or focus on religion, geography, or other issues more specific to their particular mission. And still others are already forbidden from considering race in their admissions process by state laws, which can be narrower and more restrictive than the rulings of the Supreme Court. (For example, California and Washington now have laws banning consideration of race in admissions).

Although the Supreme Court has spoken, the role of race in student admissions in higher education will probably not be laid to rest any time soon. Justice O'Connor hinted at an end to affirmative action, stating that the majority "expect[s] that twenty-five years from now, the use of racial preferences will no longer be necessary." This statement does not establish an absolutely firm limit, but the dissenting justices did as much as possible to ensure that it would be interpreted that way. They called it a "self-destruct mechanism" and a specific holding that racial preferences in admissions "will be illegal in twenty-five years." So if we still use affirmative action twenty-five years from now, a new challenge will undoubtedly arise to end it. The Court will either have to eliminate it or find some way to reconcile its use as a no-longer-temporary option.

In the meantime, we should not expect challenges to affirmative action to abate, because these challenges are not really about specific legal arguments or rights. They are about attitudes toward race, entitlement, and access to education. As legal scholar Goodwin Liu pointed out in 2002 in the Michigan Law Review, the greatest challenge to white students in gaining admission to elite colleges is actually other white students. Studies have shown that eliminating racial preferences at selective schools increases the likelihood of admission for white applicants by only 1.5 percent. White students who do not get admitted are losing their seats to other, probably wealthier, members of the majority. (After all, white students were admitted to Michigan with scores lower than all of the plaintiffs in the two cases.)

But the nation's current racial climate still permits applicants to blame race rather than other factors, or their own deficiencies, when they aren't admitted to the school of their choice. This tendency will likely fuel continued efforts to ban affirmative action, and will require colleges and universities to continue to defend their programs. The CIR and other groups opposed to affirmative action in admissions have already stated their intention to shift their focus to the political arena and other higher education programs (scholarship programs, financial aid programs, summer camps, and recruitment programs, for example). Legislative efforts in individual states to enact bans similar to those already in place in California and Washington State have already begun.

Faculty can also expect increasing and unique challenges. Affirmative action will continue to engender heated discussion, and faculty members can guide that discussion toward constructive and enlightening debate. Faculty continue to develop ingenious and creative ways to enhance and take advantage of that challenge. Many have developed innovative teaching methods in diverse classrooms, and programs in multicultural learning are now widespread. Moreover, faculty will be needed to conduct the research required to assess the effects and efficacy of affirmative action programs and race-neutral alternatives. The Court has demanded frequent evaluation and reassessment, and this research requirement creates yet another important role for faculty.

Other faculty members have become involved in recruiting and mentoring students and making sure that they feel comfortable and supported. Many minority students still report feeling isolated, marginalized, and misunderstood on their college campuses, and faculty can help to improve this situation. The Supreme Court has deferred to educators—faculty and administrators—to create the best educational environment possible. As we move forward toward what Justice Ginsberg calls the "next generation's span . . . toward nondiscrimination and genuinely equal opportunity," we must continue to earn that respect and deference in how we admit students and in how we evaluate, mentor, guide, and educate them.

Notes

1. Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Back to text.

2. Gratz v. Bollinger, et al., 71 U.S.L.W. 4480 (June 23, 2003), and Grutter v. Bollinger, et al., 71 U.S.L.W. 4498 (June 23, 2003). Back to text.

3. Copies of briefs, amicus briefs, and other information in the cases are available at <www.umich.edu/~urel/admissions/>. Back to text.

4. All internal citations and quotations are omitted in quotations from the Gratz and Grutter opinions. Back to text.

5. For a summary of the extensive social science research and literature on the educational benefits of diversity, see the Diversity and Affirmative Action section of the AAUP's Web site. Back to text.

Ann Springer is AAUP associate counsel.

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