The University of Michigan affirmative action cases and diversity

¶ … Alamo of affirmative action, the University of Michigan. The contradictory stances of Bush and Powell on this issue are dealt with. So is the position of Gerald Ford who believes like the proponents of affirmative action that affirmative action procedures lead to diversity at the educational institutions and opportunities for the minorities that are seen as a must to be offered.

Affirmative Action in Michigan

Diversity and Achievement

Is affirmative action the victim of its own success? That is one conclusion to be drawn from Gratz v. Bollinger and Grutter v. Bollinger, two cases challenging affirmative-action policies at the University of Michigan. Affirmative action has always counterposed two basic aspects of the American notion of equal opportunity. Opponents argue that taking race or gender into account in hiring or university admissions is discrimination pure and simple. Proponents counter that taking such characteristics into account redresses a legacy of discrimination; in effect, affirmative-action programs create a level playing field where certain groups historically have been denied the opportunity to compete. Legally, affirmative action has barely survived scrutiny and is far from assured of a future under the Rehnquist Supreme Court. Yet over the last thirty-five years accumulating evidence demonstrates that sociologically and economically affirmative-action programs have played an indispensable role in the emergence of a new black middle class and in opening doors to women in the university, the professions, and the corporate world ("Commonweal," 2001, 5).

The two cases involving the University of Michigan challenge the legality of the university's undergraduate admissions policies as well as those of the law school. Both actions against the university are being funded by the Center for Individual Rights, a Washington, D.C.-based public-interest law firm determined to dismantle race-based preferences. The suits have been called the Alamo of affirmative action and the most important race cases in a generation. In response, the University of Michigan has mounted a comprehensive legal defense of affirmative action, at least as the university practices it.

Trial testimony documents the fact that racial and ethnic diversity in the classroom improves the critical thinking skills and intellectual motivation of all students. Further, students who attend schools with diverse populations are more likely to later settle in heterogeneous communities and to be active in improving those communities. Businesses, once opponents, now say they have benefited from affirmative action in higher education: twenty Fortune 500 companies, including Microsoft, General Mills, Texaco, Intel, Lucent Technologies, and Eli Lilly, submitted a brief in support of Michigan's undergraduate admissions procedures. The brief asserts that diversity in higher education is so vital to the companies' efforts "to hire and maintain a diverse workforce" and to employ people "who have been educated in a diverse environment" that the government has a compelling interest in allowing public colleges to continue using affirmative action in admissions. The university won its case on undergraduate admissions in federal district court in December 2000 ("Commonweal," 2001, 5).

The Gratz and Grutter cases are noteworthy and controversial for other reasons, however, reasons that go beyond the classic justification for affirmative action as a remedy for historical and legal discrimination, most notably against African-Americans. The new justifications invoked in the Michigan cases rest on the benefits that have come from affirmative action now defined as "diversity" broadly understood. The Supreme Court in Bakke (1978) paved the way for this development when it ruled that colleges and universities could use race as one factor in selecting students. Other factors have since emerged. Initially, the University of Michigan adopted affirmative action in an effort to provide an admission boost to groups who had previously faced barriers in education and employment. Now the university defends its admissions policy to promote the benefits of diversity in the student body.

For some affirmative-action supporters, the evolution toward diversity is problematic. Will not the goal of providing opportunity to injured groups be obscured? If diversity is the good to be achieved, why not expand affirmative action to include Pakistanis, Norwegians and Arabs? Should recent immigrants benefit from affirmative-action programs originally designed to help black Americans? Certainly affirmative action opponents think the diversity-word opens a Pandora's box of racial and ethnic gerrymandering. The plaintiff in the pending suit against the University of Michigan Law School, for example, is an older, so- called nontraditional woman applicant. Might not she bring diversity benefits to the classroom too? Put on the waiting list at the law school, she argues that her scores and grades would have earned her admission had she been a member of a minority group ("Commonweal," 2001, 5).

One way for the university to address these questions is to voluntarily and periodically review its admissions policies in light of new demographic data, new sociological studies of affirmative action's impact, and the current debates on affirmative-action trends. This information is vital to the university's continual refinement of its goals in embracing affirmative action.

What is really at stake in these cases, however, is not the meaning of the term diversity, but the purpose of a university. In the plaintiffs' view, higher education is a means to individual advancement. Therefore admissions must be strictly meritocratic (a notoriously amorphous standard itself). Scores and grades, they argue, are the only things that should count. The university sees its mission in a broader context, however. Yes, it must train scholars and contribute to the expansion of knowledge. But a public university also has social and moral obligations. Extending the benefits of education to all groups within society is one such obligation. If the studies showing the success of affirmative action are reliable, the extension of those benefits will not compromise the academic integrity of the institution, but will actually contribute to its improvement ("Commonweal," 2001, 5).

Bush's Stance

In the third presidential debate in 2000, an audience member asked then-Governor Bush what role affirmative action would play in his administration. After Bush discussed some race-neutral policies he had pursued as governor of Texas, moderator Jim Lehrer asked him if he was opposed to affirmative action. Bush answered, "If affirmative action means quotas, I'm against it. If affirmative action means what I just described what I'm for, then I'm for it. (Staff Editorial, 2003)"

At that point, former Vice President Al Gore '69 asked Bush if he approved what the Supreme Court had declared "a constitutional way of having affirmative action." Bush refused to reply, and he has been largely silent on the issue ever since until he filed two briefs against the University of Michigan's affirmative action admissions policies. In the briefs, Bush does not argue that the court should overturn Regents of the University of California v. Bakke, the 1978 Supreme Court decision permitting some race-conscious policies in university admissions. But he does say that Michigan's undergraduate admissions policy which assigns points to applicants based on a wide variety of factors including GPA, SAT scores, demonstrated leadership, legacy status and race, is effectively a racial quota and is impermissible because Michigan has not tried race-neutral alternatives.

Michigan's undergraduate policy is avowedly race-conscious, but Bush's argument that it amounts to a racial quota is thoroughly unconvincing. In Bakke, the Supreme Court rightly invalidated an admissions system that set aside a certain number of seats each year for disadvantaged and minority students, who were evaluated independently of other applicants. But it upheld the ability of universities to consider race as one factor among many in admissions decisions, specifically approving of Harvard's undergraduate admissions policy, which evaluates each application individually and gives a "plus" to some racial and ethnic backgrounds. If Michigan annually manipulated the number of points it awarded to minorities in order to assure the admittance of a minimum number, then its system would be "the functional equivalent of a quota." But it does not, and so presumably if one class of applicants had very few qualified minority students, then very few would be admitted that year. While one may not necessarily agree with the way Michigan assigns its points, this system clearly does not set a quota (Staff Editorial, 2003).

Bush's second argument is even more troubling. If he believes that race-conscious policies can only be employed after an institution has exhausted all conceivable race-neutral policies to promote diversity, then he is against any meaningful interpretation of affirmative action. Even Harvard's admissions policy would be unconstitutional because the University has not searched out all imaginable ways to achieve the desired diversity by other means.

The race-neutral policies in Texas and California that Bush lauds as permissible alternatives to Michigan's system have in fact been largely unsuccessful in increasing minority enrollment, as Professor of Education and Social Policy Gary A. Orfield testified in the district court case. After California outlawed the use of any racial classifications in public university admissions, the percentage of black and Hispanic students admitted to the best law schools in the UC system declined precipitously in spite of these schools' efforts to recoup minority enrollment by supposedly race-neutral means such as socioeconomic class. At UCLA law school, the percentage of admitted students who are black declined from 10.3% to 1.4% from 1996 to 2000. Berkeley, despite scrutinizing each application for evidence of "talents that were not identified by test scores or other standardized measures," suffered a similar decline, from 9% to 3.2% (Staff Editorial, 2003).

After affirmative action was outlawed in Texas, the University of Texas system adopted a plan to admit the top 10% of students from each high school. This policy has almost brought enrollment at UT-Austin back to previous levels, but it has not had nearly the same success at Texas A&M or at UT-Dallas, and at UT-Austin minority enrollment still is not proportionate to minorities' overall representation in the student population.

It is politically smart for President Bush to avoid declaring that he is unequivocally opposed to affirmative action. But in this case, his actions speak louder than his words. Bush's conception of "affirmative action" would outlaw universities' only proven, effective way of achieving the crucial value of diversity in their student bodies (Staff Editorial, 2003).

Ford's Stance

Yes, the University of Michigan could be the Alamo of affirmative action, the place where they make their last stand. Michigan's affirmative-action programs, especially at its prestigious law school, are recognized as among the best in the country -- designed not only to produce diverse student bodies but also to withstand the sort of right-wing onslaughts, in the courts or at the polls, that have outlawed the use of racial preferences in California, Washington and other states. That is why so much is riding on two lawsuits filed by whites who claim that they were denied admission to Michigan because of their race, pointing out that some black applicants with lower test scores and grade-point averages were admitted. If affirmative action at Michigan cannot survive these assaults, it is probably doomed at every other state campus in the nation (White, 1999, 48).

Enter former President Gerald Ford, a Michigan alumnus who wrote an extraordinary opinion piece for the New York Times, defending the race-conscious admission policies that are at the core of the Michigan cases. Ford warned that if the courts forbid Michigan to use race, along with other factors that the school employs to select its student body -- including economic standing, geographic origin, athletic and artistic achievement -- they would turn back the clock to an era when minorities "were isolated and penalized for the color of their skin...or national ancestry." He recounted a revolting incident in 1934 when his black teammate, Willis Ward, voluntarily benched himself because the visiting Georgia Tech football team objected to competing against an African-American. Ward's sacrifice, Ford wrote, "led me to question how educational administrators could capitulate to raw prejudice."

Ford's surprise declaration was part of a strategy by Michigan's president, Lee Bollinger, to recapture the moral high ground that affirmative-action supporters have lost to the likes of California's Ward Connerly. Bollinger insists that for a university, racial diversity is "as vital as teaching Shakespeare or mathematics." Under a color-blind admissions system, Bollinger fears, the proportion of black undergrads would nose-dive from 9% to just 1% or 2% (White, 1999, 48).

A few prior to this, Bollinger and William Bowen, co-author of The Shape of the River, an influential book about affirmative action on campus, briefed Ford about Michigan's affirmative-action procedures, which have been reviewed to ensure that they comply with Supreme Court rulings. For example, Michigan's law school does not set numerical targets for minority students. Instead, in addition to grades and test scores, it relies heavily on letters of recommendation, the applicant's essay and evidence of leadership ability. The number of minority students who enter the law school varies greatly from year to year. Surveys show there is no significant difference in job satisfaction or the passage of bar exams between minority graduates and their white counterparts. The minorities have become part of the mainstream. That kind of inclusion is precisely what affirmative action is supposed to accomplish (White, 1999, 48). If enough people like Gerald Ford can be convinced that Michigan's way of achieving it is not only effective but fair, the Alamo of affirmative action might result in victory -- for the defenders.