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Friday, Jan. 24, 2003

A law school Dean I know is fond of reminding me that if he isn't making decisions that anger somebody, he probably isn't doing his job. By that measure, the Bush administration certainly did its job the week before last, when it weighed in on the controversial University of Michigan affirmative action cases currently pending before the Supreme Court.

Criticism of the Solicitor General's (SG) filings on behalf of the United States is coming from both ends of the ideological spectrum. Meanwhile, the Administration has apparently tried to tread a middle path. This column, Part One of a two-part series on the Solicitor General's position in the cases, will assess the plausibility of some of the Administration's arguments. Part Two will take on the others.

Liberal Critiques of the Administration's Position

Many who support racial diversity in education, and the ability to use race in individual admissions decisions in order to promote it, berate the administration for urging the Court to invalidate the undergraduate and law school policies up for review. To those critics, the SG's bottom line speaks much more loudly than does the President's own "compassionate conservative" rhetoric. And the bottom line is that, in the SG's opinion, the Michigan affirmative action programs - and therefore numerous similar programs at other schools - do not pass muster.

Partially in order to deflect such charges, the administration orchestrated, in the wake of the SG's filings, a few other statements on affirmative action policy that took a significantly less conservative tack than the SG's. The statements were made by the two most prominent African-Americans in the Federal government, National Security Advisor and former Stanford Provost Condoleeza Rice, and Secretary of State Colin Powell.

In addition, last Sunday the White House announced a proposal to increase federal funding at so-called "historically black" colleges and Hispanic educational institutions.

Conservative Critiques of the Administration's Position

Criticism from the conservative corner has perhaps been less loud, but no less sincere. For those who believe society ought to be, and the Constitution ought to be construed as being, completely color-blind, the Solicitor General's filings did not go far enough.

For one thing, they expressly declined to weigh in on the permissibility of a racial diversity justification for affirmative action. Nor did they explicitly argue that all racial affirmative action programs are constitutionally invalid.

These omissions have been criticized by California's Ward Connerly -- the primary architect of the plan dismantling the University of California's race-based affirmative action programs in the 1990s -- and other color-blind adherents. These opponents have pointed out that, while the Department of Justice made clear its opposition to the University of Michigan programs, it did not argue - at least not overtly - that no university may ever use the race of a candidate in making an admissions decision, period.

Indeed, the SG's papers purport on their face to be agnostic about the continued vitality of Justice Powell's approach in the famous Bakke case, an approach that permits a school to use a candidate's race as an admissions factor under the following conditions: The school's policy must not mandate racial quotas, and diversity factors other than race must also be taken into account to make an individualistic assessment of how a particular candidate might, when compared against all other candidates, contribute to the overall diversity of the student body. (For a more detailed explanation of what Bakke said, and why it may or may not be overruled, see my previous column on Bakke and Bowers v. Hardwick.)

According to the SG's papers, even accepting this standard of review, the Michigan programs fail. Thus, the SG was able to avoid addressing the validity of the standard of review itself.

Both camps are probably right to be a little disappointed; the Bush filing does in some respects constitute a middle path - a compromise of sorts. But like many compromises, this one is more complicated than meets the eye.

Certain aspects of the SG's stance, to be sure, involve arguments over which people have been fighting for decades now. But in other, less well-noticed respects, the Bush administration's filings breaks new legal ground, and may very well define the turf on which the battles over what schools can and cannot do to achieve diversity will be fought in the coming years.

The SG's First Argument: Michigan's Plus System Is A Quota in Disguise

The SG mounted a variety of attacks on the validity of the undergraduate and law school admissions policies at Michigan. Both policies take the race of individual applicants into account at the admissions decision stage. Their goal in doing so, the university says, is to build an entering class of students that is "diverse" in ways that contribute to educational quality.

One line of the SG's attack against the Michigan is relatively easy to understand, if a bit intellectually complicated to resolve. Put simply, the SG argued that the university has attached so much significance to an applicant's race that race ceased to be just a "factor." Instead, it has been transformed into a "predominant" input that has swamped all other criteria and turned the program into an impermissible, albeit disguised, "quota." The idea is that although the program is formally styled as a plus system, it walked, talked and squawked like a quota system.

Why, one may ask, is a "quota" system worse than a "factor" or "plus" system? As suggested above, the short answer is that Justice Powell's opinion in the Bakke case said so. According to that opinion, educational diversity, including racial diversity, are permissible governmental goals. But these goals can be accomplished only through a fluid, person-specific assessment of entirety of each candidacy.

An applicant's race thus may justify his being given a "plus," but it cannot legally justify his being awarded a slot for which other, non-minority, applicants are completely unable to compete. Two-track admissions processes (that is, those divided by race, so that minority applicants compete only against each other) and rigid set-asides (by which a certain number of seats in the class are "reserved" for minorities) are thus constitutionally impermissible.

When Bakke was itself decided, the constitutional difference between quotas and factors was the subject of some debate. But over the last quarter century, even proponents of race-based affirmative action have long since conceded that fixed quotas are not, to use the Supreme Court's lingo, "narrowly tailored" enough to pass legal muster. (A "narrow tailoring" analysis asks, among other questions, is there is less restrictive alternative? Where quota systems are concerned, one such alternative is the very kind of "plus" system envisioned by Justice Powell.)

From a policy perspective, a flexible system - such as a "plus" system - that is not committed to reserving any specific number of seats for any group of applicants certainly may make great sense. Reserving a set number of seats before one sees the depth, breadth and strength of a given year's applicant pool seems unnecessarily confining. Since diversity is but one objective an admissions policy may have, looking to see how much other objectives have to be traded off in a given year to accomplish a particular level of diversity can be quite wise.

So, as a matter of constitutional law and educational policy, the difference between a quota system and a factor, or plus, system may be quite important. But deciding when the latter has slipped over into the former is far from easy.

On the one hand, there is certainly nothing in the language of the Bakke opinion that says a "plus" awarded for a candidate's race cannot be a significant boost. For example, nowhere does Bakke suggest that race can be used only as a tiebreaker to resolve a decision as between two otherwise precisely equally attractive candidates, with, for instance, the same grades, test scores, and extracurricular activities. Plusses, even of the kind Justice Powell had in mind, can alter the results in many cases, not just the unrealistic situation of a perfect tie between applicants who are identical in every respect but race.

Nor does the Bakke opinion ever suggest that there be hundreds of factors that, like race, are taken into account for diversity purposes. A school that cares about diversity may not care about racial diversity only, but it need not pursue every conceivable kind of diversity to be permissible.

In a related vein, there is no requirement in Bakke that the plus awarded for racial diversity be no larger than the plus awarded for other kinds of diversity. All that is mandated is that race not become the overwhelming diversity factor.

On the other hand, if one is to be true to the spirit of the Bakke approach and its emphasis on individualistic assessment of the entirety of each candidate in competition with all other candidates, a plus cannot be made so large as to effectively destroy meaningful interpersonal comparison. At some point, a plus becomes so large that it can no longer be honestly called just a factor, and instead has to be recognized in the real world as the be-all and end-all.

Does the non-plus applicant have a fighting chance, or is the fight over before it begins? The SG claims the latter is the case at Michigan.

Are Michigan's Systems Really Quota Systems in Disguise? The SG's Arguments

The Solicitor General accuses the University of Michigan of making race the "predominant" input, and thus of using "disguised quotas to ensure that each entering class includes a predetermined" percentage of racial minorities. While the SG's characterization is certainly open to question, he does raise some points that require response.

This is so because the extent of the "plus" afforded racial minority candidates at the University of Michigan, especially in the college admissions process, is quite significant. In the undergraduate program, a person's African-American, Latino or Native-American status enhances her application index score by about the same amount as would a 1-point increase in high school GPA (e.g., from 2.5 to a 3.5). Overall, successful applicant needs an index score of around 100 points these days to ensure admission, and minority status automatically confers 20 points towards that end. By contrast, performance on the SAT or ACT can - even with a perfect score - can confer a maximum of only 12 points. All of this might lead a non-minority student to complain, what can I possibly do to overcome the racial diversity plus?

Meanwhile, at Michigan's law school, while the formula there is much more complex and likely much more easily defended, it is nevertheless quite clear that minority status substantially improves one's statistical chances for admission. For instance, in the year 1997, of the 22 minority applicants who had a college GPA of between 3.25 and 3.49, and who scored between a 156 and 158 (about the 75th percentile nationally) on the Law School Admission Test, 15 were accepted. Of the 45 white applicants in the same GPA and LSAT ranges, only 3 got in. (In the year 2000, for those same boxes, 10 out of 14 minority applicants were accepted, while only 2 out of 49 whites were.)

In addition, it is also true at the law school that the overall percentage of the minorities enrolled in some years is remarkably similar to other years. For instance, between 1995 and 1998 (admittedly a small sample of years), the number of African American, Native-American and Latino students fluctuated only between 44 and 47. The SG argues that is at least some circumstantial evidence that the process may be geared to implement a quota, even as it appears to confer only a plus.

The "Critical Mass" Argument, and the Permissible Use of Targets

So is the SG correct? Are Michigan's systems quotas in plus clothing? I am not yet convinced by the SG's filing, for several reasons. For starters, neither the consistency of the number of minority enrollees, nor the significant size of the plus needed to enroll them, should come as a shock.

If a school wants to ensure diversity through its affirmative action program (a goal that the Bush administration purports to accept, at least for the sake of its argument in this case), it needs to assemble a "critical mass" of students who differ along racial lines. A "critical mass" is necessary to ensure a broad range of viewpoints, as well to avoid isolation and a sense of loneliness or tokenism on the part of minority individuals.

Moreover, with a mere handful of minority students, many courses will predictably lack any minority student at all, with discussions predictably suffering as a result. The same phenomenon may happen in student organizations: If there are only ten minority law students, and only ten percent of students make law review, what if there is only a single minority student on law review? How much diversity can that lone person add?

If a school is inclined and permitted to pursue a critical mass of minority students, its admissions committee must keep its eyes on the number of minorities who are admitted and planning to enroll during each year, and also from year to year. That doesn't mean having a quota, but it does at least mean having a target in mind - a target the school might fall short of, or exceed, but a target nonetheless.

Without such targets, there is no way to ensure diversity's benefits. Thus, it is unsurprising that there is nothing in Justice Powell's "factor" approach that says a university cannot adjust the size of the factor, within a year or between years, in order to make coming close to a numerical target more likely.

Just because a school cannot guarantee reaching an exact numerical target by using a quota does not mean that it need be oblivious about how its criteria are helping achieve its target range. A school with exactly 47 minority students in its class over a ten-year period probably has a quota. But a school with minority enrollment that always hovers in the 40's may have nothing to do with quotas at all in its admissions process, and simply be using a plus system and a rough target instead.

What about the SG's complaint about the size of Michigan's plusses? Again, if one believes in a diversity justification, and a critical mass approach, a big plus - like a rough target - may be an (unfortunate) necessity, depending on the character of the applicant pool.

After all, what does it mean to a university if the plus factor given to minorities has to be large in order to put together a critical mass? It probably acts, from the university's perspective, as a reminder of how much affirmative action is still needed - how excluded minority applicants would be without any adjustments to the process.

Why Schools Should Be Honest About Big Plusses And Why They Need Them

An honest statement of the size of the "plus," and a spirited defense of the necessity of a plus of that size, is what is called for. Unfortunately, however, (and this is part of the overall problem) oftentimes there is not an acknowledgement by schools of how much they may be using race, albeit in perhaps necessary and noble ways.

Indeed, whenever litigation like the Michigan cases comes along, Americans outside of admissions offices are shocked at the size of the plusses that are being given. That's precisely because many admissions people don't like to talk openly and honestly about what they are doing.

Even the Michigan's briefs in the case, which on the whole I think are quite superb, may unwittingly fall into this tendency not to provide enough information. To illustrate that its admission's program doesn't weight race as much as detractors allege, the law school pointed out in its briefs that "71 white applicants were admitted in 2000 with grades and test scores the same or worse than minority candidates who were rejected."

This statistic, however, is at best incomplete. It might be powerful evidence that race is not predominating and that individualistic assessment is being undertaken, but I for one would need to know how many minorities with these numbers were rejected. For instance, suppose 71 whites were admitted with scores and grades lower than a single minority student (who may have had something terrible in his record that caused him to be rejected despite his credentials) doesn't mean much.

But the university isn't the only one who should be more forthcoming. In Part Two of this series, I discuss the questions raised and the intellectual honesty of the SG's other main set of arguments against the Michigan programs -- namely, that Michigan should have pursued "race-neutral" approaches of the kind that are currently used in Texas, Florida and my home state of California.

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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