Universities Adjust to State Affirmative Action Bans: Are the New Programs Legal? Are They a Good Idea?

By MICHAEL C. DORF

Monday, Jan. 29, 2007

Last November, voters in Michigan approved a state constitutional amendment banning race-based and sex-based preferences in public education (as well as in public employment and state contracting). Because the admissions season was already well underway when the initiative was passed, last month a federal court injunction gave Michigan's public colleges and universities until next summer to bring their policies into compliance. However, at year's end, the U.S. Court of Appeals for the Sixth Circuit issued an opinion dissolving that injunction, and the Supreme Court declined to intervene. Thus, Michigan's public colleges and universities must comply with the amendment in admitting students matriculating in the fall of this year.

The federal courts have not yet ruled on the merits of the underlying lawsuit, which alleges that Michigan's affirmative action ban violates the federal Constitution, but that lawsuit has almost no chance of success: Though the Supreme Court has narrowly upheld race-conscious admissions by public universities (most notably, in the 2003 case of Grutter v. Bollinger, which involved the University of Michigan), it has never said that states are required to employ race-based affirmative action, except as a remedy for highly specific prior acts of race discrimination. And that exception does not apply because the Michigan affirmative action ban specifically exempts court-ordered affirmative action programs to remedy such specific acts.

Thus, for now and the foreseeable future, Michigan's public universities will either have to accept substantially smaller enrollments of minority students--especially African Americans and Latinos--or find ways to circumvent the ban.

They will not be alone. The new Michigan state constitutional amendment is similar to a law in Florida as well as to measures previously adopted by voters in California and Washington State. In those two states, as in Michigan, the campaign for the ballot initiative was spearheaded by conservative California businessman Ward Connerly. If voters in three "blue" states (and legislators in one reddish-purple state) were willing to ban affirmative action, then the rest of the country can't be far behind. Indeed, the New York Times reported last week that Connerly and his allies are considering organizing November 2007 campaigns in nine more states.

What will the post-affirmative action world of university admissions look like? Programs adopted over the last decade in states in which court orders or state law already forbade affirmative action provide a clue. In this column, I shall consider five approaches that have been tried or proposed: (1) Open or lottery-based admissions; (2) Class-based affirmative action; (3) Guaranteeing admission to all public high school students who graduate at or near the top of their class; (4) Considering "prejudice or discrimination overcome" as an admissions criterion; and (5) Improving the quality of secondary education.

As I explain below, all of these approaches may be vulnerable to the charge that they are merely covert forms of race-based affirmative action, and thus invalid on that basis. But if they can survive that general attack, each approach has its own distinctive advantages and disadvantages.

Do Formally Race-Blind Admissions Programs Impermissibly Circumvent Affirmative Action Bans?

One might think that any formally race-blind admissions procedure would satisfy the federal Constitution and the state affirmative action bans. But an examination of the Supreme Court's precedents suggests that the issue has not been fully resolved.

After the Supreme Court's 1954 ruling invalidating mandatory racial segregation in public schools in Brown v. Board of Education, committed segregationists across the country responded by adopting formally race-neutral student assignment systems that they knew would, in practice, leave their schools largely segregated. For example, in districts with a high level of residential segregation, officials simply assigned students to neighborhood schools. In some other districts, government officials provided generous subsidies to students attending racially homogeneous private schools that were not bound by Brown's desegregation mandate. The federal courts rightly invalidated such efforts to comply with the letter, but not the spirit, of the Constitution.

Likewise, in higher education, suppose a pro-segregation state university were to deliberately suppress minority enrollment through nominally race-neutral means--for example, by accepting a large percentage of its class from alumni children, who, because of past discrimination, are overwhelmingly white, or by heavily recruiting students who play disproportionately "white" sports like lacrosse or golf (Tiger Woods notwithstanding). Were that to occur, there would be no doubt that such a measure would thereby violate the Constitution. Supreme Court case law makes clear that formally race-neutral measures that were adopted for the purpose, and have the effect, of disadvantaging racial minorities, are presumptively invalid.

Do the post-affirmative action measures that schools are likely to take differ because they were adopted to benefit rather than to burden traditionally disadvantaged groups? The case law does not provide a clear answer to that question.

On one hand, over the last two decades the Supreme Court has repeatedly embraced principles of "symmetry" and "color-blindness" that subject affirmative action programs to the same exacting level of "strict scrutiny" as policies of discrimination against racial minorities. On the other hand, those cases all involve express race-based classifications rather than formally race-neutral ones. Moreover, these same cases also suggest that the very reason some affirmative action programs fail strict scrutiny is the state's failure to give formally race-neutral measures a chance to succeed.

Thus, if I had to predict how the Supreme Court would rule on an equal protection challenge to a nominally race-neutral program that had the purpose and effect of boosting minority enrollment, I would say that the Justices would not subject it to strict scrutiny. It is not clear that this is a logically consistent position, however.

In any event, the nominally race-neutral, minority-enrollment-boosting admissions programs would not only need to survive federal constitutional scrutiny; they would also be vulnerable to challenge under the state affirmative action bans.

Thus, courts in each state would have to decide whether the specific language of that state's ban should be interpreted only to prohibit express race-based preferences--or whether it should also be construed to forbid even formally race-neutral measures adopted with the purpose, and having the effect, of boosting minority enrollment. Different states could well reach different conclusions, and some measures would be more vulnerable than others.

For example, it is hard to imagine a Michigan court saying that an admissions lottery amounts to "discriminate[ion] against, or . . . preferential treatment" for anybody on the basis of race. But one could well imagine a court saying that an admissions essay question that asks applicants to identify discrimination or prejudice they have overcome is merely a disguised affirmative action program.

Accordingly, to assess their likely treatment by the courts, and no less importantly, to evaluate their desirability as a policy matter, we should consider the various families of programs one by one.

Open Admissions and Lotteries

The simplest race-neutral means of ensuring a critical mass of minority students would be to adopt a system of open admissions for all minimally qualified applicants. Roughly eighty percent of American college students already attend institutions that accept all qualified applicants. About half of these students (and thus, forty percent of all college students) attend community colleges that accept anyone with a high school diploma or equivalency degree. These institutions achieve reasonably representative percentages of minority enrollment without using any specifically race-based measures.

By definition, open enrollment cannot be extended to the most selective institutions. However, a substantial measure of racial diversity could be achieved by a lottery system for students above a threshold of qualification. Dutch medical schools, for example, use an admissions lottery. Interestingly, after a brief experiment that departed from the lottery, the Dutch found that students specifically admitted based on extraordinary qualifications did not perform better than the average lottery-admitted student.

Nonetheless, there are two principal reasons why prestigious public universities like the University of Michigan and the University of California at Berkeley are unlikely to adopt a lottery system. First, the United States is a less egalitarian society than the Netherlands. Americans generally believe that the most highly sought opportunities should be distributed on the basis of merit, rather than chance. (Whether we in fact live up to that ideal is another question, but deviations from meritocracy--such as the elimination of the inheritance tax, and the persistence of preferences in university admissions for alumni children--tend to be anti-egalitarian.)

Second, in order to achieve substantial levels of racial diversity, the elite state universities would need to set the lottery-eligibility threshold fairly low, so that they could no longer compete with the top private universities for the best students of all races. Thus, states could only go to an effective lottery system by abandoning the notion of elite state universities. No legal obstacle prevents such a choice, but states--and certainly the elite state universities themselves--are unlikely to make it.

Class-Based Affirmative Action

African-American and Latino students are, on average, poorer than white and Asian-American students. (So too are Native Americans and some other minorities, but for simplicity, I'll concentrate on the two largest groups.) Indeed, poverty is a major cause of the lower average standardized test scores of disadvantaged minorities. Accordingly, affirmative action based on class has sometimes been championed as a means of increasing minority enrollment without using expressly race-based criteria.

In addition, class-based affirmative action can be justified as more precisely targeted. It gives a boost to just those students--of all races--who need it most: those who lacked the same educational opportunities as children of wealthier families.

The main problem with class-based affirmative action, however, is it doesn't work very well as a proxy for race. School performance of children of all races correlates positively with the socioeconomic status of their parents, but the performance differences between disadvantaged minority students and white students persists, even when one controls for wealth.

Experts disagree about exactly why that is, although certainly discrimination, culture, and parental education play a role. Whatever the exact combination of factors at play, class-based affirmative action--while arguably appropriate on its own terms--will not work as an effective substitute for race-based affirmative action.

Percentage Plans

In the 1996 case of Hopwood v. Texas, the U.S. Court of Appeals for the Fifth Circuit held that the Equal Protection Clause of the Fourteenth Amendment forbade public universities from using race as a factor in public university admissions. That decision was ultimately overturned by the Supreme Court in Grutter, but in the interim, Texas attempted to preserve substantial African-American and Latino enrollments at its elite schools by adopting what came to be known as the "ten-percent plan."

Under the ten-percent plan, students who graduate in the top ten percent of any high school in Texas are guaranteed admission to the state university system. Coupled with aggressive recruitment, the plan has resulted in substantial minority enrollment, mostly because Texas high schools are highly segregated by race. Nearly all of the students in the top ten percent of the class, in a school that is nearly entirely African American and Latino, will themselves be African American and Latino.

As if that Faustian bargain were not enough to call the program into question, the ten percent plan has distorted the class composition of the state's flagship school, the University of Texas at Austin. Because a majority of UT's class is now filled with ten percenters, other highly qualified students have been crowded out--including some students who took particularly challenging high school courses, or went to extremely competitive high schools, so their records, while excellent, still did not put them in the top ten percent to their graduating class. The program thus has perverse effects on Texas high schools: Choosing a school with the weakest possible student body and then taking the very easiest courses there, may be the best way to gain admission to UT, even though it leaves students ill-prepared to excel once there.

Further, the ten percent program has no application in graduate and professional schools, which, following Hopwood, experienced substantial declines in minority enrollment. Although the ten percent plan was billed as an improvement over affirmative action, since the Supreme Court's decision in Grutter, Texas has supplemented the ten percent program with conventional affirmative action.

Now, Texas is embroiled in a debate over whether to scrap the percentage plan entirely. That debate is likely to continue, at least until Ward Connerly and the Texas voters render it moot. Meanwhile, California and Florida have also adopted percentage plans, with at best mixed results.

Overcoming Prejudice: A Legitimate Factor or Just a Proxy for Race?

Perhaps the cleverest response to affirmative action bans is the inclusion in the application of a question along the following lines: "Describe obstacles you have overcome, including prejudice and discrimination, in achieving your educational goals."

The question is not expressly race-based, and an admissions committee could legitimately be interested in other kinds of obstacles overcome. A student who compiles a solid but not outstanding high school record despite dealing with a debilitating injury, child abuse, or the need to provide financial support for family members thereby demonstrates a capacity for achievement that may be greater than that demonstrated by a student with a slightly better academic record who did not face similar obstacles. And a student can have faced prejudice and discrimination on any number of grounds: because she was short; because he had a stutter; or because she was a vegetarian, for example.

But if the admissions committee believes that racial prejudice generally poses a much greater obstacle to success than other circumstances, that committee will tend to weight the overcoming of such prejudice by racial minorities much more heavily than the overcoming of other kinds of obstacles. And thus, at some point, this question begins to look like circumvention of the affirmative action ban.

Moreover, even if admissions personnel strive to use the "obstacles overcome" criterion in good faith, there is something misguided about making university admissions a matter of competitive victimization. Triumphing over adversity does legitimately demonstrate character strength, but the question, as typically asked, places inordinate emphasis on the adversity, and insufficient emphasis on the triumph.

Improving the Quality of Elementary and Secondary Education

The most hopeful of the post-affirmative action admissions strategies are not about admissions at all, at least not directly. Even the strongest supporters of affirmative action recognize that it is a strategy of last resort, one born of failure. If our elementary and secondary schools were doing a better job instructing minority students, then there would arguably be no need for affirmative action. Surely it would be better to eliminate the underlying performance differences than to compensate for them in university admissions.

As the New York Times reported last week, some states have taken the end of affirmative action as a challenge to improve education of prospective applicants. And in some states, the universities themselves play an active role in this process. Ohio State University, for example, has created a magnet school to attract and train secondary school students in math and science, and has sent education professionals to underperforming schools to assist teachers and parents. These efforts, if successful, would not merely substitute for affirmative action; they would represent a significant improvement over it.

Whether, and if so when, that will happen remains to be seen. In Grutter, Justice O'Connor emphasized that affirmative action cannot be a permanent institution. She set a (rather arbitrary) deadline of 25 years. If that time span was too long to concentrate the minds of the champions of campus diversity, then the Michigan ballot initiative and the others like it should provide all the incentive needed to find race-neutral means of enrolling significant numbers of minority students.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.

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