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The Bush Administration and the Supreme Court's Michigan Affirmative Action Cases:
Narrow Tailoring and Alternative Methods of Ensuring Diversity


Friday, Feb. 07, 2003

Among the most important cases pending before the Supreme Court are the consolidated challenges to the University of Michigan's undergraduate and law school admissions affirmative action programs, each of which takes the races of individual applicants into account. The President and his Department of Justice have presented the Court, and the world, with arguments about the constitutionality of the Michigan programs that deserve our close attention.

Though the point is often overlooked, the Supreme Court is not the only institution whose constitutional vision matters. It is significant, too, how other key institutional players are trying to give meaning to the Constitution - in this instance, the Fourteenth Amendment's equal protection clause.

In my last column, I discussed the Justice Department's claim that Michigan's policies amount to "quotas," and thus violate the Supreme Court's Bakke decision, which approved "plus" but not quota systems. In today's column, I want to analyze the other major set of arguments advanced by the Solicitor General - specifically, the SG's contention that Michigan's programs are not "narrowly-tailored," as the Constitution requires, because better alternatives exist that the university should have tried first.

The Requirement of "Narrow Tailoring" and What it Means In This Case

In reviewing government programs such as Michigan's, which make use of an individual's race in the distribution of public benefits and burdens, the Supreme Court has applied "strict scrutiny." Under the precedents, this means two things.

First, the government's objective in employing the program must be compelling. In my previous column, I discussed Michigan's objective - ensuring diversity. The SG has not taken a position as to whether this objective in itself is compelling. Bakke strongly suggested, however, that it is.

Second, the program must be "narrowly tailored" to accomplish that objective. This means, in effect, that government's use of race is (practically) the only way to accomplish the overriding objective. (For example, using a policeman's race to assign him to an undercover job infiltrating a racially-defined criminal gang would be unavoidable.) A race-based program will fail the "narrow tailoring" test if there are non-race-conscious ways government could readily have used to accomplish its objective.

In the Michigan cases, the SG argues that, indeed, there are other ways by which the goal of racial diversity can be accomplished. For example, he points to so-called "percentage" plans like those adopted, over the past decade, by public undergraduate institutions in several states.

The states are California, where affirmative action was terminated by popular initiative; Florida, where it was terminated by legislative and executive action; and Texas, where a lower federal court invalidated the University of Texas Law School's race-conscious program. (President Bush himself seems to be a fan of the Texas program, which he has often touted.)

Percentage Plans and Their Limited Success In Ensuring Diversity

Here is how the "percentage" plans work: The state chooses a top percentage of a student's high school class (in Texas, it's 10; in California, it's 4). And the state guarantees that every student whose grade point average places her within that percentage at her high school can attend the state's university, regardless of her performance on the SAT or other traditional admissions criteria.

How have the plans fared in California, Florida and Texas? Again, they have only been used at the undergraduate level. There, they have resulted in some significant racial diversity above what would exist without any kind of affirmative action or percentage plan - that is, if the schools had simply continued to use high school grades, scores and other traditional admissions criteria. For instance, California's 4- percent plan yields more African Americans and Latinos in the 9-campus university than would be yielded if high school grades, test scores and other criteria were used for all applicants.

For this reason, the SG argues that old-fashioned race-conscious measures are not necessary, and thus unconstitutional. But in fact, the percentage plans' success has been limited.

Take California. On the whole, its plan has not produced as much racial diversity in the entire UC system as affirmative action previously produced. Moreover, the flagship campus of the UC system, Berkeley, has racial diversity numbers that are far worse than what they were in the early 1990s, when the affirmative action plan was still in force.

Why are the statistics at Berkeley so much worse than at other campuses? First, the 4-percent plan in California guarantees those at the top of their high school graduating classes a spot somewhere in the 9-campus University - but not a spot at any given campus. Thus, no high student has a guarantee that she can attend Berkeley in particular, even if she happens to live nearby. Second, competition for Berkeley is much more severe than for, say, UC Riverside or UC Santa Barbara (which are fine schools in their own right). As a result, students who are able to get into Berkeley typically scored well on their SAT, in addition to having grades that put them near the top of their high school class.

Percentage Plans' Dependence on Residential Segregation

Besides their limited racial diversity success, percentage programs also have a second serious flaw: Whatever success they achieve is possible only because of racial segregation in neighborhoods and high schools.

Again, take the example of California. Statistics show that it has improved diversity on its campuses through the percentage plan only because there are some Latino and African-American students who have lower test scores than their white counterparts statewide, but who finish in the top of their relatively segregated high schools, and thus are guaranteed a UC system spot.

In high schools that are racially integrated, the unfortunate reality is that high school grades, like test scores, correlate somewhat with race, with whites and Asians having higher grades (as well as scores) than blacks and Latinos. As a result, a percent plan in a state where all high schools were racially integrated would not yield much racial diversity at the university.

Percentage Plans Cannot Work at Graduate and Professional Schools

This leads to a third and related point: Percentage plans cannot work easily for graduate or professional schools like the UC's or the University of Michigan's, which draw from a national pool of college graduates.

Consider, for instance, the University of Michigan law school. It simply can't guarantee admission to the top, say, 1% (defined by GPAs) of seniors graduating from each of America's colleges.

Why? For one thing, American colleges (happily) aren't as racially segregated as many high schools. So for the reasons noted above, not much diversity would result; since the top 1% would be composed mostly of white and Asian-American students, it would be they who would be guaranteed admission.

In addition, it is much harder to compare college graduates than it is high school graduates without the benefit of some uniform standardized test measure. There may be a large degree of variation within a state in terms of high school classes taken, rigor of the instruction, grade inflation, and so on. But even so, there is exponentially more variation when we talk about the "top" grade students from different colleges.

To see that, think about how hard it is to compare a 4.0 from Cal Tech who majored in Nuclear Engineering to a 4.0 from a generic state college who majored in criminology. (By using this example, I mean to disrespect neither state colleges nor criminology majors; instead I mean to suggest only that undergraduate institutions and majors differ wildly.)

Are Percentage Plans Really Race Neutral In the First Place?

All this raises a fourth, and deepest, question: why are percentage plans preferable to old-fashioned affirmative action anyway? The SG says they are better because they are "race-neutral." But are they really?

Suppose a state chooses a percentage plan (or some other variant which downplays the role of standardized tests that have disparate racial impacts) precisely in order to accomplish racial diversity, as indeed may well have been the case in California, Florida and Texas. Isn't that race-consciousness?

It is one thing for a state to say, "we no longer think the SAT measures the qualities we are looking for in a college student, and for that reason, we are shifting over to other criteria." But if states are saying, either implicitly or explicitly, "the SAT does measure scholastic aptitude, but it also leads to a segregated university, and so we are downplaying it for that reason," isn't that simply a race-conscious government decision that is different from affirmative action in form but not spirit?

Certainly there are some Supreme Court cases that might suggest so. When government uses criteria that are race-neutral on their face, but which were chosen because they had a racially disparate impact against minorities, the Court has invalidated the government action.

So, for example, suppose California decided to play up, rather than play down, the importance of the SAT because whites and Asian-Americans performed better on it, and because the state wanted to reduce the number Latino and African-American admittees. That decision by the state to manipulate admissions criteria would be - at least, according to the Court - "race conscious" in a way that implicates the heart of the equal protection clause.

Will the Court say the same thing when criteria that on their face are race-neutral are chosen or adjusted to benefit, rather than hurt, racial minorities? That is an open question. Some cases involving racial redistricting - that is, the legislative drawing of voting districts to take race into account - may suggest that the Court is open to this kind of "benign race consciousness."

But does that make sense? The Solicitor General still needs to explain why this asymmetrical stance is correct.

Covert Race Consciousness Can Actually Be More Damaging

I myself am not yet sure whether I believe the asymmetrical approach is correct. Perhaps percentage plans use race in a less "in your face" way than old-fashioned plus plans, and are preferable for that reason (just as plusses are less "in your face" than, and thus preferable to, quotas.) But for the moment, let me at least suggest an argument that the percent plan kind of covert race-consciousness is actually more problematic than old-fashioned affirmative action.

Consider this facet of percentage plans: They do take account of race (as even the SG almost admits, when he notes that "schools may identify and discard facially neutral criteria [like standardized test scores] that, in practice, tend to skew admissions in a manner that detracts from racial diversity.") Yet they do so even less openly and honestly than old-fashioned plus plans. And as I argued last column, openness and honesty are what has been missing from the debate and what is most needed.

On a related point, sacrificing other criteria (like test scores) to focus solely on grades, as percentage plans do, may do major damage to the goals other than diversity that universities have. (If we think these other criteria are not valid, then we should get rid of them for that reason alone; if we think they are valid, we should give them some weight.)

Thus, percentage plans, ironically enough, may elevate race to make it even more predominant than other educational objectives. In order to ensure racial diversity, the plans focus on grades alone - not because they think grades are the only important factor, but because that focus helps diversity. Meanwhile, other important factors - test scores, extracurricular activities, life experience, special talents that are not accompanied by across-the-board excellence, and others - may be ignored.

The sole focus on grades starts to make plus plans - which can look at everything relevant about the student, including race - look very good in comparison. Percentage plans, for instance, might lead to the rejection of the talented African-American cellist and writer who failed all his math and science classes; a plus plan would not. Or consider the Latino student with the exceptionally troubled background who did disastrously poorly her first few years of high school, but excelled later. She wouldn't benefit either. The ability to look at the whole student, not just a number on a page, is invaluable.

The SG's position, nevertheless, is that schools are free to pursue racial diversity only if they are willing to eliminate other criteria that they have heretofore thought important to guaranteeing excellence in academics or otherwise. But these criteria don't need to be ignored: They, and race, can both be taken into account. That is the very message, and idea, of "plus" programs: Race is another plus among many.

The biggest question, then, that I am still left with - and the SG has not really begun to answer it - is this: Why should schools have to sacrifice their vision of academic excellence in the pursuit of racial diversity? The SG's lack of response to this seems to me especially puzzling given that the very point of the conservative critique of affirmative action is that it fails to live up to some meritocratic ideal.

Akhil Reed Amar is on vacation this week.

Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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