By Michael Rosman
The Jurist Online, September 5, 2003
In bringing several lawsuits against the University of Michigan (“UM”) for its admissions policies — one involving the policies of the Law School (Grutter v. Bollinger) and the other involving the policies of the undergraduate School of Literature, Science and Arts (Gratz v. Bollinger) — my employer, the Center for Individual Rights, had several objectives. First, to be sure, we wanted to win the cases for our clients and to go as far as possible in eliminating the use of racial preferences in admissions systems in higher education. Second, we wanted to replace the confusing regime of Regents v. Bakke, 438 U.S. 265 (1978), with a more sensible and understandable one.
We had limited success in reaching these goals. While we did win the case of Gratz v. Bollinger, 123 S. Ct. 2411 (2003), we lost in Grutter v. Bollinger, 123 S. Ct. 2325 (2003). Worse, the regime of Bakke was perpetuated, and perhaps made even more confusing than before. Lower courts will have to muddle through the inconsistent analyses, and unless they revel in unclear standards — a possibility I do not dismiss, but I hope is not the case — they are losers in this endeavor as much as Barbara Grutter, CIR, or UM’s School of Literature, Science, and Arts. So are university general counsels.
I have written in the past about how difficult Justice Powell’s opinion in Bakke was to understand, and how out of sorts it was with the way admissions processes work. (See Rosman, Thoughts On Bakke and Its Effects on Race-Conscious Decision-Making, 2002 U. Chi. L. Forum 45. As with that article, I should mention that the views expressed here are my own, and not those of my employer or any of our clients.) I have not been alone in this assessment of Bakke, and I will not repeat my earlier analysis here; many of the points are discussed in Justice Thomas’s dissent in Grutter. Briefly and somewhat randomly: (1) there are no standards to identify “compelling” interests in Bakke; (2) an interest grounded in academic freedom and the First Amendment should protect Bob Jones University as well as Harvard University (even though we all know it will not); (3) the distinction between racial diversity as a goal in itself and as an instrumental goal to achieve some broader diversity is difficult (if not impossible) to discern in practice, and most admissions practices probably pay no attention to that distinction in any event; (4) no one can explain why the benefits of diversity in higher education are so much more substantial than in other contexts (like juries); and (5) the distinction between a quota and a “plus” system appears to elevate form over substance.
Alas, the Supreme Court did not help matters much in Grutter and Gratz. To be sure, it is now clear that diversity in higher education is a compelling governmental interest, and perhaps why that is so is not that important. At least six Justices believe so, and that must be good enough for the rest of us.
That being said, we should note carefully the differences between Bakke and Grutter, and the reasons supporting a compelling interest in diversity that each identified. Bakke focussed almost exclusively on the process of learning, and the benefits that a diversity of perspectives and backgrounds would have on that process. Grutter’s identification of the benefits of “diversity” (like the amicus briefs that supported UM) is much more all over the map. In addition to making the classroom discussion livelier, for example, the Court also mentioned “cross-racial understanding” to break down racial stereotypes. It is unclear what stereotypes the Court is referring to, other than the one that minorities all have the same point of view. Precisely how many students are both intelligent enough to be admitted to the University of Michigan Law School and naive enough to be laboring under such a misapprehension is never discussed.
Preparation for a multi-cultural workforce and society also gets a nod. The ability to provide national security supports the use of racial preferences in military schools, although the Court never really discusses why a 30% racially diverse officers’ corp can provide security to the nation in a way that a 15% racially diverse officers’ corp cannot. Nor is it explained how this relates to the Law School’s interest in diversity; one strongly suspects that the military schools are not so interested in lively classroom discussions. (Indeed, the former military officers’ amicus brief to which the Court alluded had emphasized “unit cohesion” as the lynchpin between diversity and effectiveness — the same rationale that the military used to maintain segregation during World War II.)
We are told that the accessibility of higher education to all individuals regardless of race and ethnicity — “effective participation” by members of all races, the Court calls it — is very important. (This goal of accessibility “regardless of race” is achieved, we are told, by excluding some on the basis of race because their race is overrepresented.) Cultivating a set of leaders that has “legitimacy in the eyes of the citizenry” because it is racially diverse also requires the use of racial preferences.
Are these things all “compelling interests” in and of themselves? Are they reasons why diversity in higher education is a compelling governmental interest? Are they reasons why racial diversity in higher education is a compelling governmental interest? Your guess may be as good as mine. (Probably better.) However, when we get to narrow-tailoring, the same Powellesque analysis is applied, suggesting that these other interests may not matter that much at all, and that Justice O’Connor was just employing the “kitchen sink” method of decision writing.
Grutter parroted Justice Powell’s words in Bakke that racial balancing for its own sake would be unconstitutional. But the litany of interests just identified make it even more difficult than it was after Bakke to discern legitimate from illegitimate motives. At least in Bakke, one could assert that the absence of proper consideration of other forms of diversity demonstrated a lack of commitment to the broad-based diversity that Justice Powell thought educational institutions ought to be seeking. How exactly can we tell the difference between a program designed to achieve racial balance for its own sake, and a program designed to achieve racial balance in order to “cultivate a set of leaders with legitimacy in the eyes of the citizenry”?
All of these things, and more besides, are set forth in Justice Thomas’s trenchant dissent. A curious aspect of the majority opinion in Grutter is that it takes great pains to respond to the other dissents, which deal with the narrow-tailoring aspect of the decision, but responds not at all to Justice Thomas’s and Scalia’s opinions, which were focussed more on the question of whether diversity is a compelling interest.
Well, perhaps Grutter and Gratz brought clarity to the “narrow-tailoring” part of the equation. But perhaps not. The rule of law that emerges seems to be: “you may use a plus, but do not use addends.” Upon further investigation, there may be little to add to our understanding from these decisions. I now would like to focus attention on narrow-tailoring questions, some quite significant, that Grutter and Gratz do not seem to answer at all (or, at least, not consistently).
How burdensome is a court’s review of a system of admissions to determine if it meets strict scrutiny? Well, the conclusion that diversity itself is compelling is not reviewed much at all. The Court defers to the Law School’s educational judgment in Grutter, and says little more about the level of review. How about determining if the use of race is “narrowly-tailored” to achieve the benefits of diversity? Well . . . in Grutter, the Court said that the “means must be specifically and narrowly framed to accomplish” the end, and that the narrow-tailoring inquiry “must be calibrated to fit the distinct issues raised by the use of race to achieve student body diversity in public higher education.” In Gratz, the Court stated that narrow tailoring required a most searching examination of the means available. The presumption of good-faith does not, it would seem, go very far. It appears that it is nearly-dispositive in the compelling interest inquiry, but not terribly significant in the narrow-tailoring inquiry.
Is there a limit to the weight that can be given to race? Grutter said that race cannot be “the defining feature” in analyzing a candidate’s application. But, on the other hand, since the goal of reaching a critical mass of underrepresented minorities was considered compelling, the Court did not consider at all whether the weight given to race dwarfed other diversity considerations. What then does it mean to be a “defining” feature, and why was race the “defining” feature of minority applicants in Gratz, where the system considered high school achievement, standardized test scores, leadership abilities, geographic diversity, etc.? Perhaps the answer lies in this comparison: in Grutter, the Court took note of the fact that all underrepresented minorities admitted to the Law School had been deemed qualified. In Gratz, on the other hand, the Court took note of the fact that the undergraduate school admitted all qualified underrepresented minorities, and concluded that this made the factor of race “decisive.” The lesson, one supposes, is to reject at least one or two qualified underrepresented minority applicants. Otherwise, too much weight has been given to race and race is thus “decisive.” (An even easier solution, and one no doubt that clever admissions officers already have figured out, is to change the definition of who is “qualified” so that some “qualified” candidates are always rejected.)
What precisely made the point system in Gratz unconstitutional? The easy answer is the absence of individualized consideration, but what exactly does that mean? If the school had a variable point system, awarding 5-20 points based upon race, at the discretion of the reviewer, would that have been sufficient to pass strict scrutiny? If so, how would the reviewer make such a determination? Could more points be distributed to minorities who were members of groups that were more underrepresented?
Perhaps the limit on points for other kinds of diversity was the flaw in Gratz. If so, is that consistent with the rule in Grutter and Justice Powell’s Bakke opinion that the school need not give the same weight to different kinds of diversity? If you can weigh different kinds of diversity differently, why is it improper to limit the “plus” for less-valued diversity?
To be sure, the system in Gratz had some idiosyncracies, not all of which were noted by the Court. The distribution of points precluded a socioeconomically disadvantaged member of an underrepresented minority group from obtaining any more points than any other underrepresented minority. Indeed, arguably that candidate received no plus at all for race, since the system provided 20 points for either socioeconomic disadvantage or race, but a maximum of 20 points for both. But if this is what bothered the Court in Gratz, it did not do well in identifying it.
Another aspect of narrow tailoring is the consideration of race-neutral alternatives, which are discussed primarily in Grutter. The Court there said that narrow tailoring does require the consideration of race-neutral alternatives, but does not require the exhaustive consideration of every conceivable race-neutral alternative. For example, it 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.” (Giving us yet another rephrasing of the diversity interest that sounds very much like racial balancing, while at the same time condemning racial balancing.) So lowering admissions standards to achieve diversity is a race-neutral alternative that need not be tried because it would require the Law School to become “a much different institution and sacrifice a vital component of its educational mission.” The Court held that the Law School had considered race-neutral alternatives, but that none were capable of producing a critical mass without abandoning the academic selectivity that is the cornerstone of its mission. (The Court apparently believed that the Law School had considered race-neutral alternative that were “workable” but not effective, whatever that means.)
How do other race-neutral alternatives work under this standard? Let’s consider two: elimination of in-state preferences and the elimination of alumni preferences. In states where the population is largely white, the use of in-state preferences will have a disparate impact against minorities, and the elimination of that preference surely would boost minority enrollment somewhat. I would think that in-state preferences might be part of the cornerstone of a school’s educational mission (viz., to train future lawyers or doctors or scholars for the citizens who are subsidizing the institution), but what if the school has had a tradition of accepting many students from outside the state? Would that affect whether it could claim that in-state preferences were a core part of its mission? Under those circumstances, would the failure to eliminate that in-state preference invalidate an effort to use racial preferences?
Alumni preferences seem even more vulnerable under this standard. One would be hard-pressed to argue that alumni preferences are at the cornerstone of any institution’s educational mission. In most instances, at least as I understand it, they are an effort to increase alumni contributions, and since state schools are subsidized in any event, the “interest” really is just money. Yet in many institutions, alumni preferences have a disparate impact against minorities, and their elimination would help minority enrollment.
One could argue that racial preferences might still be needed to achieve a critical mass of underrepresented minorities even after policies like in-state and alumni preferences are eliminated. But presumably, the degree of preference for race could be lowered somewhat and Grutter does state that racial preferences should not be employed more broadly than their interest demands.
Finally, the Court also noted that preferences should have a time limit: in this instance, they should only be used while they are needed to achieve a critical mass of underrepresented minorities. With that helpful guideline, one must ask whether the specific groups that received preferences in Gratz and Grutter — African Americans, Mexican Americans (and perhaps other Hispanics), and Native Americans — are the only ones that can be included in the critical mass inquiry. Are they to be considered always as an undifferentiated whole? If in ten years African Americans can achieve 7-9% representation without racial preferences (roughly what they obtained with racial preferences under the actual facts of Grutter), but an insufficient number of the other groups would be admitted under race-neutral standards to constitute a critical mass of all three, can preferences still be afforded to African Americans? One would think that that would be using racial preferences more broadly than is necessary and be violative of that basic precept of narrow tailoring.
The point of this essay is not to suggest that many systems of admission that use racial preferences are illegal under Grutter and Gratz. I mean only to suggest that there are many systems of admission using racial preferences that could be found to be illegal under those decisions if a lower court were so inclined. Grutter certainly gave universities a safe-harbor of some kind, but it is a rather murky one and the lighthouse of its rationale (combined with that of Gratz) might easily direct them to the rocky shoals of unconstitutionality. I rarely feel sorry for those who operate admissions systems using racial preferences, but even I feel a twinge of sympathy when I try to pierce through these cases.