AN ISSUE RIPE FOR SUPREME COURT REVIEW:
A Decision Upholding Michigan Law School's Race-Based Admission Plan Creates An Even Circuit Split

By JOANNA GROSSMAN


lawjlg@hofstra.edu
----
Monday, May. 20, 2002

The Supreme Court's 1978 decision in Regents of the University of California v. Bakke attempted to resolve the question of when a race-based affirmative action plan in higher education is constitutional, and when it should be struck down as a violation of equal protection principles. However, since Bakke, the line between constitutional and unconstitutional plans has been uncertain and unclear.

Bakke suggested that while using racial quotas or "set-asides" is forbidden, racial diversity could operate as a "plus factor" in admissions, to favor the acceptance of minority candidates. Subsequent Supreme Court decisions, however, have put that distinction in jeopardy - making clear that even racial "plus factors" may be constitutionally suspect in the current Court's eyes.

Last week, the federal court of appeals for the Sixth Circuit added one more piece to an already confusing puzzle. In Grutter v. Bollinger, the court upheld a "plus factor" affirmative action plan used by the University of Michigan Law School to make admissions decisions. Previously, while one other federal circuit had approved a similar plan, but two other federal circuits had struck down plans of this type.

The Supreme Court has thus far declined to enter the fray. But with the federal circuits now evenly split, two-two, on this important issue, the Court may soon grant review to resolve the question of whether "plus factor" plans like Michigan Law School's are constitutional.

Bakke: A Splintered Decision Seems to Allow A Diversity Justification

In Bakke, the Court considered the constitutionality of an affirmative action plan used by the University of California-Davis Medical School, which set aside sixteen slots to be filled only by minority applicants. The plan was challenged by an unsuccessful white applicant, who claimed he had been unfairly denied the opportunity to compete for those sixteen slots.

A majority of the Court agreed. However, in the course of explaining why this type of "set-aside," or quota, plan was unconstitutional, it also provided some guidance as to what kind of race-conscious admissions policies might pass muster in the future.

To uphold a race-based plan, the Court would have had to find both that there was a compelling interest for adopting it and that the particular plan was narrowly tailored to that interest. Four justices endorsed a broad use of affirmative action, concluding that remedying past societal discrimination against racial minorities qualified as a compelling interest. Four justices never reached the constitutional question because they believed the plan violated a federal civil rights law banning race discrimination in public programs.

Harvard used race as a "plus factor" in making admissions decisions. That meant that it did not allocate any particular number of slots to students based on race. Thus, the number of minority students admitted each year was not set in stone, but rather varied depending on how many minority students met the college's standards, either with or without the plus factor's help.

Unlike the U.C. Davis Medical School plan, Harvard's plan had all the students competing against each other for all the spots - though minority students received the help of a plus factor, and white students did not.

Justice Powell's position in Bakke is clear, but the question for subsequent courts is whether any of the eight remaining justices agreed with him. To strike down the program, Justice Powell's vote combined with those of the four justices who believed the program to be facially invalid.

But was his conclusion that racial diversity can constitute a compelling state interest shared by the other four? Almost certainly it was, since those four justices had endorsed a much broader use of affirmative action to remedy past societal discrimination. Based on such a reading of Bakke's votes, achieving racial diversity has since been frequently invoked as a constitutionally permissible interest.

Bakke's Immediate Aftermath

The Bakke decision paved the way for widespread "modernization" of university and graduate school affirmative action plans. Immediately after Bakke was handed down, many colleges and graduate schools modified their affirmative actions plans to make them more like the "Harvard Plan" and less like U.C. Davis Medical School's.

Thus, many schools eliminated rigid quotas and set-asides. They replaced them with a multi-factored analysis, which allowed those who reviewed admissions files to consider racial or ethnic diversity much as they would other subjective factors like geographical diversity, "legacy" status, life experience, particular talents, ideological perspectives, and the like.

For some time, these plans were thought to be immune to constitutional challenge because of Justice Powell's approving nod in Bakke. But eventually it became clear that this was far from true. Indeed, these plus factor plans' days seemed to be numbered, as they began to be scrutinized by appellate courts filled with a majority of judges appointed by Republican presidents - and headed ultimately for review by a conservative Supreme Court.

Conservative Appellate Courts Begin to Strike Down Even Plus-Factor Plans

The Fifth Circuit reasoned that while Justice Powell may have approved of diversity as a compelling interest, and of plus-factor plans as a way to achieve it, it was not clear that anyone else on the Court had agreed with him. Therefore, the Fifth Circuit believed, there was no binding five-justice majority decision that such plans were constitutional - and nothing to prevent the Fifth Circuit from holding, to the contrary, that they were not. Moreover, the Fifth Circuit noted, even had there been such a decision, later Supreme Court cases striking down affirmative action plans in other contexts had undermined it.

In a 2000 decision, the Ninth Circuit Court of Appeals disagreed. It held that Justice Powell's opinion in Bakke remained good law, and binding precedent, despite subsequent Supreme Court rulings critical of affirmative action in other contexts.

In 2001, the Eleventh Circuit struck down the University of Georgia's "plus factor" affirmative action plan. Under the plan, a fixed numerical value was added to every minority application. That made the plan relatively inflexible among "plus factor" plans; other plans simply allowed the person reviewing the application to take race into account to the extent he or she did, or did not, see fit.

The Eleventh Circuit did not rule on the question whether diversity was a compelling interest, though it suggested that Justice Powell had been alone in his view that it was. Rather, it held that even if it was, this plan was too inflexible to be narrowly tailored enough to achieve that goal; adding a fixed, rather than a variable, plus factor unnecessarily sacrificed white students' rights to have their applications equally considered.

The Michigan Law School Plan, and the Sixth Circuit's Decision

As mentioned above, the Grutter decision evened the score--upholding Michigan Law School's "plus factor" affirmative action plan against an equal protection challenge. (The Court reserved for a forthcoming opinion a ruling on the constitutionality of the affirmative action plan for Michigan's undergraduate admissions).

The Michigan Law School plan had been specifically amended to conform to the strictures set forth in Bakke. Unlike the University of Georgia plan the Eleventh Circuit struck down, the Law School's plan uses no set-asides or numerical add-ons. Instead, it simply directs the decision-maker to look at a variety of "soft" variables - that is, factors other than the numerical factors of LSAT and GPA.

It tells the decision-maker to look at these factors with two purposes in mind. First, the decision-maker should try to admit students for whom the hard numbers may not be an accurate predictor of success. Second, the decision-maker should try to admit students whose attendance will help achieve diversity "which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts."

Since this policy was adopted, Michigan Law School's student body has been comprised of 13-14 percent minority students, compared with an enrollment predicted by one expert of 4 percent if only LSAT and GPA were taken into account.

What the Supreme Court May Do, and What Its Ruling Will Mean

The Supreme Court is very likely to agree to hear this case, given the importance of the underlying constitutional issue and the level of confusion plaguing lower courts. As it stands now, universities and graduate schools are permitted or forbidden to use race-conscious affirmative action in admissions based solely on the jurisdiction in which they happen to be located.

Thus, currently, the same plan could be illegal if used by a Georgia state school, but perfectly constitutional if used by a California state school. The Court's decision would set a uniform national rule and thus might improve the situation - although the Court might also introduce uniformity at the expense of justice, if it were to strike down all affirmative action plans, even the fairest and most narrowly tailored.

If it does agree to hear the Michigan case, the Court will be faced squarely with the question of whether achieving diversity is a compelling interest. That is, the Court very likely will not be able to avoid this question - as the Eleventh Circuit did - by skipping to the narrow tailoring question. If any plan is narrowly tailored to serve diversity while still being fair to white students, it is probably Michigan Law School's.

Under Michigan Law School's plan, not only minority students, but white students, might benefit from the consideration of "soft" factors; a white student from a blue-collar background, for instance, might also be predicted to outperform his or her "hard numbers" as well as add diversity to the class.

Moreover, under the plan there is no set plus-factor that minorities enjoy but whites do not, and each application is considered under the same criteria. Conversely, if Michigan's program is struck down, colleges and professional schools may be hard put to come up with alternatives more likely to survive courts' review.

The Urgent Need for Race-Based Affirmative Action in Law Schools

The legal question at issue here is whether affirmative action is constitutional. As a practical matter, what is at stake is the very possibility of achieving racial diversity in legal education.

Law schools face particularly acute issues of racial diversity. Minorities are significantly underrepresented in American law schools, compared to the general population. While there are many factors that contribute to this situation, one is decidedly law schools' heavy reliance on the LSAT, a standardized test designed to predict success in law school. The LSAT, along with undergraduate grade point average, are the dominant criteria used in most law schools' admissions processes.

These gaps alone will prevent schools from improving the percentage of racial minorities in the student body, unless "soft" factors other than the LSAT and GPA are taken into account. Almost certainly, the abandonment of race-conscious admissions in law schools would lead to a drastic reduction in the already small percentage of minority students.

Linda Wightman, an Educational Research Professor at the University of North Carolina-Greensboro published the results of an empirical study designed to measure just how drastic the reduction would be. Her study showed that, depending on methodology, between 10 percent and 23 percent of black applicants who were actually admitted to law schools during the 1990-91 admissions season would have been admitted if LSAT and UGPA the sole criteria. Although the consequences are less drastic for other minority applicants, they are nonetheless significant.

The consequences of this drop would be disastrous not only for rejected minority students, but for the profession as a whole, and for legal education in particular. A law school class that might have had a critical mass of black students might now only have a handful.

When so few minority students attend a given law school, issues such as racial profiling, affirmative action, civil rights, and the racially disproportionate application of the death penalty may well end up being discussed by all-white classes. Meanwhile, in other classes, minority students' perspectives will also be missing, in ways that are less obvious but still important.

Why Non-Affirmative Action Programs Like Texas's Won't Work For Law Schools

These statistics make it all the more crucial that "soft factor" programs continue, despite court challenges. For law schools, there really is no other alternative. Granted, President Bush and other policymakers have touted programs designed to increase racial diversity in college education without affirmative action. But these programs are unlikely to work for law schools.

For example, states like Texas and Florida have adopted laws mandating that the top students at every state high school be admitted to their state universities. The idea behind these laws is that, for example, a higher total number of black students will be admitted to state colleges, because a certain number of slots for students from every high school - including predominantly black high schools - will be guaranteed.

Whether these plans will increase the number of minorities matriculating to these universities remains to be seen. Even if they do work, they have important downsides - such as rewarding residential segregation. Furthermore, they cannot effectively work for law schools at all.

Most law school applicants come from integrated undergraduate institutions. Accordingly, there would be no predicted increase in minority law students by taking a particular percentage from each. And taking a particular percentage from historically black colleges alone would, ironically, amount to the exact quota system that Bakke rejected.


Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University.

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