Dec. 6, 2006

Proxies for Race

When voters abolish affirmative action programs, universities seeking to preserve diverse student bodies frequently look for criteria that are race neutral, but that may help a disproportionate number of minority applicants. That’s how Texas ended up with the 10 percent plan that guarantees admission to those at the top of their high school class.

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With last month’s vote in Michigan to abolish affirmative action in public higher education, that state’s universities are looking for new approaches to admissions. One of the first concrete plans — by the law school at Wayne State University — is already setting off controversy. The faculty there will vote on a plan that would replace its current admissions policy with a race-neutral one. However, preferences would be added for students who are Native Americans, have overcome discrimination or prejudice, or live in Detroit.

Professors who developed the plan believe that they have come up with a way to preserve diversity, although they still expect minority enrollments to fall. But other professors — including some who opposed the vote to ban affirmative action — say that the new plan will quickly land the university in court. And anti-affirmative action lawyers are promising to sue Wayne State if its faculty approves the plan.

The Michigan Civil Rights Initiative, known as Proposition 2, is a ban on granting “preferential treatment” in public college admissions based on race, ethnicity or gender. The measure, based on similar initiatives in California and Washington State — won 58 percent of the vote.

Up until now, Wayne State’s law school — currently with a minority enrollment of about 17 percent — has had a fairly typical admissions policy. College grades and Law School Admission Test scores are the top criteria, but the law school has considered race and ethnicity among other factors in attempting to attract a diverse student body. About a year ago, faculty members started planning for what they would do if Proposition 2 passed. Jonathan Weinberg, a professor of law who helped lead the effort, said that if decisions were made just on grades and LSAT scores, the minority share of enrollment would be “sharply lower” than it is now.

Weinberg’s panel wants the law faculty to approve the use of a variety of factors beyond race that he said are legal, even under Proposition 2. Some of the factors have been used elsewhere, without serious legal challenges. For example, the plan would encourage the admissions committee to look at socioeconomic background so that students who are the first in their families to go to college, or who grew up in poverty, would receive an admissions boost.

Other criteria are raising eyebrows. But Weinberg defended them. For example, he said that several Supreme Court decisions have distinguished American Indians from other racial and ethnic groups. So he said it was legitimate to continue to favor them. On helping those who have overcome discrimination, he said that this would be legal because it was not restricted to any one kind of discrimination or victim. Anyone who could demonstrate having overcome bias would be eligible and no one would be eligible for this preference only based on being a member of a particular racial or ethnic group.

Favoring Detroit, he added, was appropriate given that Wayne State is located in the city, although the majority of students come from the suburban counties outside of Detroit. The black population of Detroit makes up more than 80 of the city’s residents and about two-thirds of Detroit applicants to Wayne State are from minority groups.

“The Wayne State law school has always been acutely aware of its urban mission,” Weinberg said. “We are in Detroit and of Detroit.”

Weinberg predicted that the law faculty would approve the new admissions plan today. But the vote won’t be unanimous.

Laura B. Bartell, a professor of law, is a backer of affirmative action. But now that the state’s voters have disagreed, she said, the measure must be applied. She said she did not believe the consideration of past discrimination or tribal status could survive a court challenge. And she said that even if law professors believe in affirmative action, they need to follow the voters’ will. “I was a vocal opponent of Proposition 2, but it passed,” Bartell said. “We’re a law school. One of the things we teach our students is that they must comply with the law.”

Bartell said that she’s less certain about the legal issue with regard to favoring Detroit residents, but she thinks such a preference is unwise. She noted that the law school has always factored in geographic diversity — so if few people from Detroit apply, they could get admissions help, but so could applicants from some largely white parts of the state. More important, she said: “We are a Michigan taxpayer supported institution. Every resident of Michigan should have an equal opportunity to attend.”

The Pacific Legal Foundation is an anti-affirmative action legal group that has vowed to sue if necessary to enforce Proposition 2. Paul Beard, a lawyer for the foundation, said that extra help for Indians would be “a blatant violation” of the measure. “There is no exception for Indians,” he said. “If they are discriminating on the basis of race and ethnic, there will be a lawsuit.”

The provisions on experiencing prejudice and living in Detroit are “awfully suspicious,” he said. The foundation would look “very carefully” at how they are used, he said. “I’ll bet you anything that they’ll weight these for minority applicants.” If so, he said, “we will investigate and see if we have grounds for a lawsuit.”

But James Britton, a third-year law student at Wayne State who is president of the Student Bar Association Board of Governors, praised the faculty effort. “I think people still want to recruit a diverse and well qualified class,” he said. “We can’t explicitly use race or gender in the criteria, so we need to find other ways of doing that.”

— Scott Jaschik

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