JULY 19: READINGS

AA at the Michigan Law School


Description of Situation
The plaintiff in Grutter v. Bollinger claimed reverse discrimination on the part of the University of Michigan, based on her being waitlisted in preference to at least three minority applicants with parity of qualifications. It does seem like a case of sour grapes. Jennifer Grutter no doubt had other opportunities open to her even after being waitlisted and chose, instead, to make a federal case out of her academic misfortune of having applied to a school that was committed to a fairly unobtrusive flavor of affirmative action. After all, there were no racial quotas as in Bakke that violated the principle of nondiscrimination. In fact, the Michigan AA program was structured according the findings set down in Bakke. The Michigan admission policies, for example, were narrowly tailored to serve academic and not societal outcomes (though those are also stated as a goal of the policy.) Furthermore, it is essential to point out that the Michigan policy was not intended to redress historical wrongs, but rather to serve the University's urgent need for diversity in admissions that would create a "critical mass" of black and hispanic students so as to reduce tokenism. However, the question is whether the use of race as a contributing factor, a plus as in Justice Powell's decision and not a deciding factor per se, is still discriminatory on some level. Stare decisis would seem to have foreclosed that issue long before Grutter. The question, then, is why bring such a case if it had little merit or chance of success? The answer would seem to be that the case was latched onto by the conservative forces as fodder for the battle against affirmative action. A test case of this kind would naturally generate intense media interest. This might help whip up the conservative base and bolster efforts to legislate affirmative action out of existence at the state level where it is most vulnerable.

Ethical Issues
The plaintiff and the amicus tried to frame the dispute as a case of individual civil rights being trampled by an outdated discriminatory practice. The idea implied is that government cannot reconcile the somewhat divergent policies of nondiscrimination and affirmative action if the ultimate goal is a racially blind society. Nondiscrimination by government funded institutions (and other spheres of society) entails that race should never influence opportunities in education, employment and so on. This is a first principle in a just and equitable society. Affirmative action, on the other hand, requires these same institutions take steps to ensure that protected minority rights are not abridged. These policies are the law of the land and have been for decades. Few would deny their past utility and the that countless benefits have accrued to society since their adoption. Bakke clarified the meaning of affirmative action in relation to nondiscrimination--it did not outlaw the influence of race in decision making. As Sandra Day O'Conner so rightly points out, context matters when it comes to the influence of race in certain spheres, such as in higher education admissions. Therefore, the consideration of race is not "equally objectionable" in that context. Thus, Powell's prudent construction of strict scrutiny allows for minimally intrusive influence of race in cases where compelling government interests exist. Strict scrutiny offered a perfectly proportional response to the apparent inconsistency between the letter and the implementation of the law. This rational, utilitarian approach to racial injustice, however, is now under attack using a strict absolutist interpretation of Titles VI and VII and it just may succeed, given the unrelenting assault by the right on the judiciary. The question are: Is Michigan's admission policy proportional to the problem? Are its effects and duration sufficiently narrow for the context? If nondiscrimination is the moral minimum, is affirmative action (as implemented) a logicaland equitable response? If not, what are the options for the University?


Rational Alternatives

1. When faced with the challenge of Grutter, maintain the status quo policy, hoping to win or to reach a settlement
2. Admit the plaintiff, abandon race as a plus and stick to race neutral qualifications, along with geographical, economic or political characteristicsthat would tend to enhance diversity
3. Consider race only in cases of economic and social disadvantages
4. Phase out race as a plus over a seven-year period, offer a civil rights track, and hire minority faculty to help attract minority law students
5. Reduce weight of academic standards for admission, such as undergrad GPA and LSAT scores, for ALL applicants
6. Convert to race neutral qualifications and provide tutoring and remediation assistance for minority applicants to help improve their LSAT scores and better prepare the applicants for law school

Discussion
Number 1 is attractive, simply from the perspective that the program works, why fix it? Furthermore, it is in keeping with the letter and spirit of the law as it is now understood. That seems appropos for a program dedicated to the study of law. However, without policy changes, further challenges may be brought by those applicants whom the policy impacts. Furthermore, the slippery slope argument suggests that there ought to be some kind of exit strategy for the future. Number 2 is attractive since it would probably not impact applicants with particularly deep pockets. However, that would be an immoral rationale. Minority applicants would be impacted instead. Still, there is something to be said for race neutral qualifications--they can perform much of the same function when given the proper weight and combined with recruitment efforts. Number 3 simply burdens poor nonminority applicants a little too much. They deserve an advantage in consideration as well. Number 4 seems measured and proportional. However, it really does little to lead to the goal of a critical mass if the pool of qualified minority candidates is already weak. Number 5 seems out of place. However, for whatever reasons, the fact is that black and hispanic applicants generally have lower GPAs and LSATs than their white counterparts. Thus, lowering standards may tend to lead to more successful minority applications by increasing their proportion. Of course, the faculty and administration would likely bristle at such a suggestion. Very little in academia do you hear calls for reducing standards. That just leaves Number 6.

Recommendation
Number 6 makes sense for a number of good reasons. First, helping minority applicants prepare themselves and improve their scores does not create a separate admission track for these students, nor does it insulate them from competition. Second, it is compatible with the existing policy, meaning it can help to bridge the program to race neutral qualifications in the future. Third, it is simply not enough to say that race is no longer a consideration. The result of that change by itself would be to lock in economic and social inequalities that have existed for many years. Wishing that society is race blind does not make it so. Only affirmative action toward that goal will make it so. Unless the arrow of social progress has been totally turned back by the conservative tide, the pool of qualified minority candidates will eventually reach its potential in our society. In the meantime, institutions of higher learning have an obligation to maintain high standards and give qualified candidates a hand up so as to increase their numbers in law schools and in the legal profession. These role models will inspire black and hispanic students who will increase the qualified pool of minority candidates. Who knows what might happen in 25 years?