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Ending racial double standards

 

CIR's lawsuits against the University of Michigan

 

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 (Gratz v. Bollinger). The second challenged

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UM's law school admissions system. (Grutter v. Bollinger). Although the Court imposed new restrictions on the use of race, the rulings did not achieve CIR's goal of eliminating racial preferences in admissions altogether.

 

CIR's legal campaign

Grutter and Gratz are the most recent chapter in CIR's decade-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.

In CIR's view, treating applicants differently solely on account of their race violates the Equal Protection Clause of the 14th Amendment of the U.S. Constitution, which prohibits states from denying "to any person…the equal protection of the laws." At issue in Gratz and Grutter were two contentions by the University of Michigan: first, that racial diversity is a compelling state interest that justifies an exception to the 14th Amendment and, second, that dual admissions standards are the only practical means to achieving racial diversity while maintaining high academic standards.

 

"Diversity" or quotas?

"NO STATE SHALL . . .DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS."

--FOURTEENTH AMENDMENT, UNITED STATES CONSTITUTION

CIR believes that diversity is a notoriously slippery concept that obscures what amounts to simple racial balancing. While schools say they are interested in enrolling students with a broad range of interests and backgrounds, in reality, Michigan and other schools use racial double standards solely as an expedient to ensure a minimum percentage of minority students. Because schools use the idea of "diversity" to disguise what amounts to racial proportionalism, CIR believes that diversity does not meet the constitutional standard for a compelling state interest and, thus, that it cannot justify an exception to the 14th Amendment.

Experience has shown that the use of separate lower admissions standards for a particular racial group imposes undue harms on individual applicants. In addition to excluding qualified applicants from non-preferred racial groups, the use of racial double standards puts preferenced minority students at a permanent academic disadvantage in the classroom. Moreover, schools in Texas, California, Florida, and Washington have discovered that racial double standards are not necessary to achieving a diverse student body (including racial diversity).

 

The rulings

The U.S. Supreme Court

The Court's rulings in Gratz and Grutter fell far short of CIR's goal of a clear legal ruling striking down the use of racial preferences solely to achieve diversity. While there is little principled support in the Constitution for racial double standards, the Court did not end their use. Instead, it eliminated only the more mechanical preferences used by Michigan's undergraduate college, while permitting the UM law school system, which purportedly considered race on an individualized basis to stand.

Reflecting the weak constitutional support for even the law school system, the Court suggested that schools should seek non-race based admissions systems to achieve student diversity and in any event should end the use of racial double standards altogether within the next 25 years.

 

Click here to read Gratz v. Bollinger (900k .pdf)
Click here to read Grutter v. Bollinger (900k .pdf)

 

Legal confusion

Unfortunately, Gratz and Grutter failed to clarify the law concerning racial preferences. Underlying nearly fifty years of constitutional jurisprudence had been the idea that racial distinctions are inherently irrational and politically dangerous. For this reason, the Court rarely approved a racial classification that couldn't be easily limited to a narrow, very clear and important objective.

In Grutter, the Court held for the first time that "diversity" is a compelling interest that justifies the use of racial classifications. Unfortunately, Grutter did not provide a means to distinguish between a legitimate interest in including many perspectives in order to, e.g. improve classroom discussion, and the entirely illegitimate institutional interest in simple racial balancing. While everyone agrees diversity may help create an enriching climate, everyone also understands that simply boosting minority enrollment to satisfy a political constituency does great damage not just to the educational mission of a school but to the principles of equal treatment and individual merit.

 

Cartoonist Bruce Tinsley uses his Mallard Fillmore strip to make fun of the UM's system of racial balancing

Having failed to articulate a clear distinction between a legitimate interest in diversity and simple racial balancing, the Court was unable to articulate a principled distinction between the undergraduate systems that it struck down and the law school system that it upheld. In place of a principle, the Court pointed to superficial differences in the manner in which the undergraduate and law school systems worked: whereas the undergraduate system mechanically assigns an admissions bonus to preferred minority candidates, the law school system purports to do so only on the basis of an individual examination of each applicant's file.

 

A distinction without a difference

Chief Justice William Rehnquist

But, 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.

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 its divergent holdings, the Grutter opinion added further qualifications to race conscious admission. 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 a time limit for any consideration of race (25 years) and required schools to periodically review the continued need for explicit racial preferences in light of improvements in minority educational achievement.

 

Consequences and commentary

Taken as a whole, the two decisions may signify the Court's view that racial preferences are a temporary social expedient that cannot be permanently justified on the basis of the 14th Amendment's Equal Protection Clause. Justice Steven's public comments after the decision suggest that it was the Court's reluctance to suddenly and entirely jettison a practice now used by many major institutions that explains its equivocal decisions, not its conviction about the legal merits of racial double standards.

Prof. Shelby Steele

But, as numerous commentators have pointed out, the Court's reluctance to set a clear legal standard will exact a heavy toll on American individuals and institutions for years to come. Many schools will continue to mechanically admit all minority students under separate and lower admissions standards solely to engineer a preferred racial mix of students. Far from treating applicants as individuals, these schools will continue to view applicants first and foremost as fungible members of their racial group.

 

Click here to read Shelby Steele's critique of the decisions.

 

For a discussion of the state of the law after Gratz and Grutter, read CIR General Counsel, Michael Rosman's article in Jurist Magazine.

 

The mechanics of race at the University of Michigan

Admissions "grid" used by UM

There were two separate admissions policies at stake in the Gratz and Grutter cases: the UM's undergraduate admissions system and the UM's law school admissions system. The mechanics of each system make clear that UM's purpose was to ensure a particular racial mix of students, not achieve diversity. The undergraduate system made this particularly clear.

Prior to 1998, the undergraduate system ranked students according to their SAT scores and GPA utilizing a "grid" consisting of boxes representing different combinations of scores and grades. Read more about the UM admissions systems.Go to admissions page

 

The real problem

Racial preferences are, at best, a false feel-good solution to a terrible problem: the breakdown of K-12 education at many schools populated by disadvantaged students. The challenge is to fix the deficient schools that make it difficult for many poor and minority students to compete for admission to selective colleges and universities. Using racial preferences to hide this problem only makes it easier for political leaders and education officials to avoid the tough choices necessary to improve elementary and secondary education.

Barbara Grutter

Moreover, racial preferences create new problems. In denying all students the right to compete on an equal footing, these policies deprive some students the opportunity to attend a top-ranked college or university solely because of their skin color.

In addition, many minority applicants are routinely admitted according to much lower academic standards. While this approach may initially boost minority enrollment, minority students admitted by means of preferential policies tend to drop out at much higher rates. For African-American students at the University of Michigan undergraduate college, the drop out rate is 39%, more than double the 17% dropout rate for everyone else.

A 2004 Stanford Law Review article authored by UCLA Prof. Richard H. Sander presents a devastating critique of law school preferences. Sander shows that the use of double standards in the top tier law schools has a cascading effect that forces lower tier law schools to also use preferences. As a result, many minority law students have difficulty competing academically.

According to Sander:

"At American law schools that use large racial preferences, half of all black students end up in the bottom tenth of their first-year class...[T]his performance gap has nothing to do with race per se; whites who attend law schools where their credentials are far below most of their peers have pretty much the same types of troubles. The performance gap is a function of preferences."

Read Prof. Sanders' study (.pdf format, 1.2 MB)

Read a Wall Street Journal article about Sanders' study

Go to Prof. Sanders' web page

 

Some schools are getting rid of race preferences

"STUDENTS AT TEXAS A&M SHOULD BE ADMITTED AS INDIVIDUALS, ON PERSONAL MERIT -- AND ON NO OTHER BASIS."

-- ROBERT GATES PRESIDENT OF TEXAS A&M UNIVERSITY

Though the Supreme Court held that schools may consider race under certain circumstance, the Court did not require schools to use race. Indeed, the Court's rulings in Gratz and Grutter stressed that schools must explicitly consider whether non race-based admissions systems would achieve sufficient diversity without the explicit consideration of race. Some schools have concluded that racial preferences no longer are necessary or useful methods for achieving the educational benefits of a diverse student body. Read more about diversity. Go to race neutral page

 

Why do colleges use race preferences?

THE FACT IS THAT AFFIRMATIVE ACTION HAS BEEN A VERY EFFECTIVE RACIAL POLICY IN GARNERING MORAL AUTHORITY AND LEGITIMACY FOR INSTITUTIONS, AND IT IS NOW INSTITUTIONS--NOT INDIVIDUAL WHITES OR BLACKS--THAT ARE FIGHTING TO KEEP IT ALIVE.

-- SHELBY STEELE WRITING IN HARPER'S MAGAZINE

Even the supporters of race preferences agree that double standards based on race are inconsistent with fundamental fairness. Preferences judge individuals by race rather than their accomplishments and abilities. It seems curious, then, that such a peculiar institution as race preferences would be so common in American life.

However, while America cherishes its culture of individualism, no institution can remain credible if it is seen as being linked with the American past of segregation and slavery. The quickest, and easiest way for many institutions to protect themselves against public criticism is to engineer racially proportional hiring, admission, and promotion decisions. While this system may be an efficient way to protect big institutions from criticism, it does so at a great cost to individuals. These institutions reject some, accept others, and do injustice to all, all solely on the basis of skin color.

 

For an eloquent critique of the role played by race preferences in America, read Prof. Shelby Steele's article in Harpers Magazine.

 

Michigan passes constitutional amendment

banning race preferences  

Ward Connerly

Following the lead of states such as California, Florida and Washington, which have elected to eliminate all consideration of race in government contracting, hiring, and state-supported education, Michigan voters passed a ballot initiative to end racial preferences. Appearing on the November 2006 ballot as Prop. 2, the amendment passed with 58% of the vote and went into effect on December 22, 2006.

In addition to singling out public universities, the amendment broadly mandates that “the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

The initiative was spearheaded by California businessman Ward Connerly and CIR client Jennifer Gratz, who formed the Michigan Civil Rights Initiative to obtain the requisite number of signatures to put the issue on the ballot. MCRI submitted 508,202 signatures on January 6th, 2005, well more than the 317,757 required.

Prof. William Allen

To help ensure that Michigan residents heard both sides of the debate, a second organization was formed in early 2005 called Toward a Fair Michigan. Led by Michigan State Professor William Allen and CIR client Barbara Grutter, the organization initiated a variety of educational programs designed to educate the public about the harms and benefits of racial preferences.

 

 

The legal assault on Prop. 2

Before Prop. 2 had even made its way onto the ballot, the advocacy group “Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary,” known commonly as “BAMN,” demanded that U.S. District Court Judge Arthur Tarnow remove the initiative from the ballot. BAMN claimed that MCRI had violated the Voting Rights Act by using the terms “racial preferences” and “affirmative action” misleadingly. At the last minute, the District Court rejected BAMN’s claims, allowing Prop. 2 to stay on the ballot.

After Prop. 2 passed overwhelmingly, BAMN then sought to delay its enforcement by claiming that the amendment violated the U.S. Constitution. Three days before Prop. 2 was scheduled to take effect, on December 19, 2006 U.S. District Judge David Lawson ordered a delay on Prop. 2 until July 1, 2007, which would have bypassed an entire admissions cycle at Michigan’s universities. Representing UM law school student Eric Russell, CIR moved to intervene in the case. On emergency appeal to the U.S. Court of Appeals for the Sixth Circuit, CIR succeeded in lifting Judge Lawson’s order on December 29.

The Sixth Circuit then remanded the case to Judge Lawson for a decision on the question of whether Prop. 2 violated the U.S. Constitution. After a year of extensive discovery, Judge Lawson upheld the constitutionality of Prop. 2 on March 18, 2008. In December, 2008, Judge Lawson denied the plaintiffs' motion to reconsider and the case is now on appeal to the U.S. Court of Appeals for the Sixth Circuit.

CIR’s successful defense of Prop. 2 removed a legal cloud hanging over ballot initiatives in other states. Led by Ward Connerly, the American Civil Rights Institute (ACRI) successfully passed a similar initiative in Nebraska in 2008, while falling short in Arizona and Colorado. ACRI plans to file similar initiatives in the 2010 elections.

 

Click here to learn more about ACRI

 

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

 

Click here to read the Washington Post story

Click here to see the complete survey results (450k .html)

Read Stuart Taylor's National Journal column

 

For further reading on the Michigan cases, and race preferences at Universities click here

 

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