Challenging racial double standards — CIR’s lawsuits against the University of Michigan

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n 1997, CIR filed two lawsuits against the University of Michigan challenging its use of racial preferences in admission. One lawsuit aimed at UM’s undergraduate college admission (Gratz v. Bollinger). The second challenged UM’s law school admissions system. (Grutter v. Bollinger).

Barbara Grutter

Barbara Grutter

In 2003, after six years of contentious litigation in the lower federal courts, the Supreme Court issued landmark rulings striking down the undergraduate admissions system but upholding the law school system. The Court ruled that schools may take race into account in order to achieve the educational benefits of diversity (including racial diversity). But the Court also ruled that schools may not award mechanical preferences (such as extra points) to certain applicants solely on account of their race. Instead, schools must perform a “holistic” analysis of each individual, taking into account all the ways an applicant could contribute to educational diversity. And schools are to review the need for continued preferences in light of improvements in educational achievement among minority applicants.  Schools are supposed to gradually eliminate preferences in favor of what are sometimes called “race neutral alternatives,” gradually moving to a unitary admissions standard that achieves racial diversity without any special consideration of race.

“This is the worst day in civil rights history since the Bakke case in 1978…(P)oll after poll of African-Americans, when you ask them, “Do you agree with admitting black students to higher institutions with lowered standards?” they say no, overwhelmingly. So what we’ve now seen is that the highest court in the land has ratified a policy that black people do not approve of, especially when really apprised of what makes up that policy. Instead, what we’ve got is the idea that it’s OK to take race into account.”
John McWhorter, Linguist

While the cases exposed the heavy-handed and mechanical use of racial preferences — and the flimsy rationales often employed to justify such practices — in the end, the Court refused to end the use of racial preferences altogether. Instead, it created a twenty-five year window during which schools may continue to use racial preferences so long as they at least appear to award them on a case-by-case basis. As a result of the Michigan litigation, schools modified their admissions procedures to emphasize the careful examination of each applicant’s file.

A distinction without a difference

Grutter and Gratz were an important chapter in a long effort to end the use of racially preferential admission systems in colleges and universities. Though these systems take many forms, they share the same fundamental characteristic, namely the use of largely separate, lower admissions standards for preferred racial groups in order to boost the number of such students.

The Court has been clear that schools may not use preferences to engineer a pre-ordained racial mix of students — what the Court calls “racial balancing for its own sake.”  Instead, schools must tailor the consideration of race to the educational value of diversity. And they are supposed to look at ways of achieving educational diversity without resort to preferences.

Unfortunately, it’s just as easy – maybe even easier – to run an illegal racial balancing system on the basis of a supposed “case by case” review as it is do so with the mechanical use of grids and points. The relevant question is not how the system operates, but the purpose for which race is being taken into account.

Chief Justice William Rehnquist

In truth, the UM law school system approved in Grutter gave greater and more mechanical weight to race than the undergraduate system struck down in Gratz. As Justice Rehnquist noted in his dissent in Grutter, the law school’s admissions decisions were almost precisely proportional to the racial composition of the applicant pool each year.

Perhaps reflecting the shaky legal basis for the Court’s divergent holdings, the Grutter opinion added further qualifications to race conscious admissions. The Court held that even if a school meets the conditions for taking race into account, its procedures must consider other, non-racial ways a student might contribute to educational diversity. Moreover, a school must assess the value of

“Colleges may not treat race as if it automatically ensures a specific and identifiable contribution to a university’s diversity.”–Gratz v. Bollinger

racial and other kinds of “diversity” on a case-by-case, individualized basis. Finally, the Court suggested that schools periodically review the continued need for explicit racial preferences in light of improvements in minority educational achievement.

Americans want an end to race preferences

By overwhelming percentages, Americans of every political outlook want to see them abolished. In recent years, poll after poll — by the Gallup Organization, NBC, Newsweek, the Detroit Free Press, and the Chronicle of Higher Education, to name just a few sources — has shown that the overwhelming majority of Americans of all races oppose the use of race-based admissions.

This dramatic hardening of public opposition to racial preferences is one result of the Michigan cases, which focused national attention on the extent to which race was being used in college admissions and, more important, the purposes for which it was being use. Read Stuart Taylor’s National Journal column summarizing the various poll results and noting the consistent opposition of African-Americans to racial preferences. Another stunning example of the public’s reaction to race preferences is a 2001 Washington Post poll.  It found that 94 percent of white people and 86 percent of black people are against using race as a factor in admissions. Here’s a short summary of the Post’s findings:

Question: In order to give minorities more opportunities, do you believe race or ethnicity should be a factor when deciding who is hired, promoted, or admitted to college?

 

Whites responded Blacks responded
NO 94% NO 86%
  Yes 3% Yes 12%
  Don’t Know 3% Don’t Know 3%

 

Men responded Women responded
NO 92% NO 92%
  Yes 5% Yes 4%
  Don’t Know 2% Don’t Know 4%

 

Democrats responded Republicans responded
NO 87% NO 96%
  Yes 8% Yes 2%
  Don’t Know 5% Don’t Know 2%

Source: A Washington Post, Henry J. Kaiser Family Foundation and Harvard University poll conducted by telephone March 8 – April 22, 2001, among a random national sample of 1,709 adults. Washington Post, July 10, 2001, p. A1

 

 

Case Status: Partial Win: The Supreme Court struck down the UM undergraduate admissions system but upheld the law school system.


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