By Peter Kirsanow
National Review Online, July 7, 2003
The 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.
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.)