Courts Confront 'Diversity'

By Thomas White | Monday, February 12, 2001

'A racially diverse and ethnically diverse student body produces significant educational benefits such that diversity, in the context of higher education, constitutes a compelling government interest,' wrote Judge Patrick Duggan of the U.S. District Court for the Eastern District of Michigan. Consequently, Duggan ruled in December, the University of Michigan may justifiably employ racial preferences in its admissions policies.

Duggan was careful to note that Michigan's current policies, adopted in 1999, are 'narrowly tailored' to avoid illegal discrimination against white applicants. The University's previous admissions system, which was in place from 1995 to 1998—when the lawsuit was filed—are unconstitutional, Duggan said. 'It is often a fine line that divides the permissible from the impermissible.' Despite Duggan's middling position, his ruling points to a serious legal controversy among the federal courts that may soon be resolved by the nation's Supreme Court.

In 1996, the U.S. Court of Appeals for the Fifth Circuit struck down race-conscious admissions policies at the University of Texas at Austin Law School as unconstitutional, holding that diversity is not a compelling government interest and cannot justify racial discrimination in university admissions. The decision outlawed affirmative action in the entire Fifth Circuit, which includes Texas, Louisiana, and Mississippi.

Just last month, however, a three-judge panel of the Ninth Circuit Court of Appeals held that the Washington University Law School was legally justified in using tactics similar to that of the University of Texas in order to engineer a more racially diverse class. Thus, the nations' penultimate courts have articulated two distinct opinions over the same issue, setting the stage for an opinion by the highest court.

The University of Michigan's admissions system involves a complex point system. Applicants are rated on a 150-point scale and are awarded 20 extra points if they are black, Hispanic, or Native American. Those additional points are equivalent to the advantage that a student with a 4.0 GPA would have over someone with a 3.0 average. Only 12 points are given for top scores on standardized tests, and only 10 points are given to students that have an outstanding essay, distinguished individual achievement, or other notable item on their résumé.

Moreover, the university seeks out students of a particular minority group and 'flags' their applications—giving them special consideration by the admissions committee. What has caused the most controversy, however, is that in weeding out applicants early in the process, the admissions office uses higher point thresholds for white and Asian applicants than for other groups, causing students to be excluded solely on the basis of their race.

Two white applicants to the University of Michigan at Ann Arbor—Jennifer Gratz and Patrick Hamacher—filed the class action lawsuit against the university in 1997, charging that they had been rejected from Michigan's College of Literature, Science, and the Arts because of their race—a violation of Title VI of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment. Duggan issued a decision in the case, Gratz v. Bollinger, in the form of a summary judgment. Because the case's basic facts were not in dispute, he did not hold a trial.

Though Michigan is not part of the Ninth Circuit, Duggan relied heavily on the Ninth Circuit opinion in his own. Additionally, Duggan heard extensive testimony about the educational benefits of diversity for university students. Scholars supporting affirmative action practices offered what Duggan deemed 'solid evidence' showing that students work better in a racially diverse environment. Similar findings were supported by amicus briefs submitted by a number of higher-education groups across the country. The NAACP Legal Defense and Educational Fund, Mexican American Legal Defense and Educational Fund, and American Civil Liberties Union represented student-intervenors in the case and applauded the controversial decision.

The plaintiff's lawyers did not confront the issue of whether diversity is educationally beneficial. Instead, they argued that the goal of diversity is too vague and poorly defined to constitute a compelling government interest—and that such an interest would justify racial preferences in admissions in perpetuity. Duggan agreed, calling diversity a 'permanent and ongoing interest,' rejecting the notion that affirmative action should stop once the legacy of racial discrimination is overcome.

'Taken together, the decisions in Michigan and Washington show that the pendulum is swinging back in support of maintaining a diverse and integrated student body at our top universities,' wrote Kary Moss, executive director of the Michigan Civil Liberties Union in a statement released after news of the decision.

'The decision of the court today supports the admissions policies of virtually every selective university in the nation,' cheered Lee Bollinger, Michigan's president and a former Provost of Dartmouth College.

Duggan's decision has received widespread criticism, however, from opponents of racial preferences. Writing in the Wall Street Journal, Thomas Bray, a governor of Cranbrook Schools in Bloomfield Hills, Michigan, and former editorial page editor of the Detroit News, called the social science evidence 'dubious' noted that 'the study was conducted by one of the university's own professors who is interim dean of the liberal arts program. Meanwhile, the judge simply brushed aside countervailing testimony submitted by the National Association of Scholars, an independent group that has been critical of preferences and political correctness.'

Other critics have pointed out that, under current guidelines, a college may simply increase the racial point entitlement from 20 to 30 or 40 points simply to achieve whatever quota it wishes. 'Skin color quotas are just quotas by another name,' wrote Kenneth Smith of the Washington Times. Duggan's decision guarantees 'that henceforth judges will be looking over the shoulders of school administrators to determine when the skin-color bonus is too high or, perhaps, not high enough.' The question then arises as to the legality of a two-tiered system for college admissions: one set of criteria for whites and Asians, and another for other minorities.

The Supreme Court will ultimately need to clarify the meaning of its landmark 1978 decision in Regents of the University of California v. Bakke. Both Duggan and the Ninth Circuit emphasized Justice Lewis Powell's support for racial preferences to achieve racial diversity in that case. The Fifth Circuit has noted, however, that four of the five justices in the Bakke majority did not agree with Powell's reasoning. Other analysts note that the Court's ruling that the admission system previously in place at the University of California at Davis' medical school violated the Constitution by attempting to establish a particular racial mix of students by setting aside seats for minority applicants and by evaluating minority applications according to separate standards and procedures.

Most legal experts predict that the Supreme Court will, in all likelihood, want to clarify what the scope of the Bakke decision will be, and how the legal doctrine put forth by the case will apply to college admissions specifically. Undoubtedly, campuses across the country will be following the case very carefully.

Courts Confront 'Diversity'

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