June 29, 2007

Mixed Messages on Affirmative Action

The first reaction to Thursday’s U.S. Supreme Court ruling for many officials at colleges that practice affirmative action was relief. The ruling, as expected, rejected programs under which schoolchildren in Louisville and Seattle have been assigned to schools based on race. While the case didn’t involve college affirmative action, many of the legal briefs in the case cited Grutter v. Bollinger, the Supreme Court’s landmark 2003 ruling involving the University of Michigan’s law school, which upheld the right of colleges in some circumstances to consider race in admissions.

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With Sandra Day O’Connor, the author of that opinion, retired, and with a seemingly bolder conservative majority on the Supreme Court, some feared that there could be an opportunity to attack the Grutter decision.

Instead, the Supreme Court’s ruling Thursday cited Grutter and used it to distinguish affirmative action that was constitutional from that which isn’t. Hence the initial relief.

But as lawyers spent more time with the decision, many said its message to higher education was not a clear endorsement of affirmative action as practiced by many in academe. Rather, the justices seemed to be clarifying just what colleges need to do to comply with Grutter — namely be sure that all applicants are evaluated individually, that no blanket assistance or obstacles are set based on race or ethnicity, and that where race is used it must be part of a broad diversity agenda that focuses on a range of factors.

“I think one of the most important aspects of the decision is that it both limits and clarifies Grutter,” said William Thro, solicitor general of the Commonwealth of Virginia and former general counsel for Christopher Newport University.

The justices “made it clear that the diversity that was approved [in Grutter] was a diversity that included much more than race. The clear message for colleges and universities is that if you continue to use race in admissions or in the allocation of financial aid to achieve diversity, that diversity needs to be far more than just race.” Thro said he was concerned that in the wake of the 2003 ruling, “many schools were assuming that diversity meant racial diversity and not the broader diversity.”

Thro also noted tough language in the decision about the justifications for promoting diversity, with at least four justices extremely skeptical of the justifications frequently put forth, and one justice moderately skeptical. “To the extent colleges and universities want to talk about diversity, diversity must be framed in terms other than race, and at many institutions you have diversity offices and task forces that are concentrated exclusively or almost exclusively on race and gender issues and not the total panoply of issues that might go into consideration,” he said.

Civil rights groups were quick to condemn the Supreme Court’s ruling impact in elementary and secondary education. “At a time when school segregation is increasing, in the half-century since the Brown decision, a plurality of the current court has condemned minority children to a back seat in the race for life’s chances,” said a statement from Julian Bond, board chair of the NAACP.

Not surprisingly, some of the groups that oppose affirmative action are now salivating at the prospect of more suits, and think many colleges are vulnerable. “People forget that the Michigan decisions were split,” said Roger Clegg, president of the Center for Equal Opportunity, a group that opposes affirmative action. He noted that when the justices ruled in Grutter, they also ruled in Gratz v. Bollinger, rejecting the way Michigan at one time considered race in undergraduate admissions. Clegg said that what the opinion Thursday did was integrate Grutter and Gratz, setting limits on affirmative action that he believes colleges are violating.

He said that colleges are going to be “vulnerable any time that race appears to be not just a factor, but a determinative factor,” and he noted that research by his group — showing large gaps in the the average grades and test scores of various racial groups admitted to top colleges — are just the evidence that foes of affirmative action will need.

While many colleges officials stressed that Thursday’s ruling could help them, by giving them clear parameters on what they could and couldn’t do, even some strong supporters of affirmative action said that they were not confident that their view would prevail. Beverly Daniel Tatum, an expert on race relations among students and president of Spelman College, asked if she thought affirmative action would be around in a decade, said “unfortunately, No.” She added, “I really think we are in danger of moving backwards in our society.”

Experts on education law warn against assuming that rulings involving elementary and secondary issues can be neatly applied to the law of higher education, and Thursday’s rulings could illustrate why. In Seattle and Louisville, students’ race alone was used in some cases to assign them to specific schools and in some other cases to accept or reject requests to change schools. In the K-12 context, of course, most students are assigned schools, while in higher education, no one is forced to attend any specific college. Likewise, colleges consider a range of factors in admissions.

In addition, colleges are historically given more leeway than schools (and much of the rest of society) to set their own paths. Justice John G. Roberts Jr. noted in the court’s decision that the Supreme Court in Grutter “relied upon considerations unique to institutions of higher education, noting that in light of ‘the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.’ “

The Roberts decision not only rejected the Seattle and Louisville systems’ desegregation plans, but generally barred school systems for making race-based assignments of schools. Three justices joined Roberts in affirming all aspects of his opinion: Samuel A. Alito Jr., Antonin Scalia, and Clarence Thomas.

Another justice — Anthony M. Kennedy — joined their conclusion that the Louisville and Seattle plans went too far, but suggested that the justices went too far in ruling out all use of race. The dissenting justices in the more liberal wing of the court said that the majority decision was effectively undoing numerous rulings — including Grutter and going back to Brown v. Board of Education — on which school districts have relied to promote desegregation.

But the majority repeatedly treated Grutter as established precedent, while distinguishing it from the school cases that were decided. “The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group,” Roberts wrote. “The classification of applicants by race in Grutter was only as part of a a ‘highly individualized, holistic review review,’” the decision continued. “In the present cases, by contrast, race is not considered as part of a broader effort to achieve ‘exposure to widely diverse people, cultures, ideas, and viewpoints.’“

In another part of the decision, Roberts questioned several justifications frequently given to justify affirmative action — justifications that were put forth by defenders of the Seattle and Louisville districts. For example, he said that the Supreme Court did not believe race-based distinctions could be made to remedy “societal” discrimination. And he rejected the idea of promoting diversity as a justification in itself. “The principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’”

Ada Meloy, general counsel for the American Council on Education, said that she believed colleges have been “trying carefully to do what is permissible” within the Grutter framework. She said that most colleges have realized that focusing programs “on race alone was extremely questionable” after the Gratz decision. (In the law school admissions plan that the justices favored in 2003, applicants were reviewed individually, but in the undergraduate program that they rejected, points were awarded for various factors, including race and ethnicity.) After a thorough review of the decision, Meloy said, the ACE would offer any additional guidance needed so “we can continue the very important pursuit of a diverse student body.”

Clegg of the Center for Equal Opportunity is no fan of the Grutter ruling, thinking that the Supreme Court shouldn’t have let colleges consider race at all. But he predicted that it would be easy to show that colleges aren’t using race just as one factor among many, but as a factor that trumps others — violating the principles that Thursday’s ruling set out. Clegg cited studies that his center did about the University of Michigan’s admissions in 2005 — after the Gratz and Grutter rulings.

The center used Freedom of Information Act requests to find that the SAT median for black students admitted to Michigan’s main undergraduate college was 1160 in 2005, compared to 1260 for Hispanics, 1350 for whites and 1400 for Asians. High school grade point averages were 3.4 for black applicants, 3.6 for Hispanics, 3.8 for Asians, and 3.9 for whites.

Further, black and Hispanic applicants in 2005 with a 1240 SAT and a 3.2 GPA had a 9 in 10 chance of getting in — while white and Asian applicants with the same scores had a 1 in 10 chance of getting in. “Race was more of a factor after [the 2003 rulings] than before,” he said, adding that it was hard to believe that other types of diversity — removed from race and gender, but of the sort the court endorsed in Grutter — were really having the same impact as race. (Michigan officials said that the numbers released by Clegg’s group distorted the realities of admissions by leaving out many factors beyond test scores and grades that go into admissions decisions.)

Sheldon E. Steinbach, a lawyer in the higher education practice at the Washington firm Dow Lohnes, said that a key question looking ahead may be exactly how colleges are using race and other factors in admissions. “The admissions process can be opaque,” he warned, especially in the absence of state FOIA laws such as those used to obtain the Michigan data.

Over all, he said, “the message is that Grutter lives, and that using race as a specific qualification is not going to pass muster, but that when it is part of the totality of things, there is latitude.”

Steinbach noted that many colleges changed policies in the wake of Grutter, but that he suspects many may be vulnerable for not changing sufficiently. “Some colleges are certainly vulnerable,” he said, even though many groups such as the ACE — where he was formally general counsel — provided plenty of post-Grutter advice. “One would hope word to the wise would be sufficient, but my experience is that it’s hard to ensure everyone gets the right message,” he said.

For Tatum, the Spelman president, the decision and the possibility of tougher scrutiny for college affirmative action have all sorts of implications. If she focuses on institutional interests, “this is a boon,” she said, because she thinks the trends the Supreme Court has set in place will make historically black colleges like hers more attractive to top black students. By making it more difficult for school districts to desegregate, or to promote diverse student bodies in areas that are racially segregated in terms of housing, Tatum said, more students are going to grow up without meaningful interaction with students from other racial and ethnic groups.

“What this means is that their views are going to be based on stereotypes,” she said, and that’s the kind of ignorance that leads to all kinds of insensitivities and incidents on college campuses.

Tatum, the author of Can We Talk About Race, and Other Conversations in an Era of School Resegregation and of Why Are All the Black Kids Sitting Together in the Cafeteria?, said that colleges are going to need to do “remedial work” with students who don’t know how to interact with those who are different from themselves. And she predicted that predominantly white institutions will become “less hospitable” to black students. While that may seem great for Spelman, she said that with 10 applicants for every spot in its freshman class, the college doesn’t need more applicants. And her fears relate to American society, not just her college.

At some level, she said, the decision and its impact should surprise no one. “The country elected George Bush,” she said, and the views expressed by the justices he has put on the Supreme Court are consistent with the president’s record. In fact, she noted that affirmative action may be vulnerable far more quickly to the referendums being organized (so far with success) by Ward Connerly to ban it on a state level than to federal court rulings, which tend to take years to work their way through courts.

“The Ward Connerly’s of the world need to be counteracted, and who is going to the states and telling them that they are shooting themselves in the foot when they ban affirmative action?” she said. One of Tatum’s sons is a Ph.D. student at the University of Michigan right now, she noted, asking why he or another minority professional would want to build a career in a state that had overwhelmingly rejected affirmative action. States that decide that it’s OK not to have a diverse, well educated work force, she said, will suffer.

So too, she said, will the low-income, minority students whose reality isn’t reflected by the Supreme Court’s talk of a race-neutral society. “It’s such an ahistorical perspective,” she said. “If you look at the history of education in the United States, we have never educated everyone, and for a good portion of the time, we made it illegal to educate everyone. There is so much at risk now to students of color in K-12 who are concentrated in low-income areas.” On the same day that the U.S. Senate rejected immigration reform legislation, Tatum asked: “What are we going to do? Import our talent?”

Tatum said that colleges may need to put more emphasis on class-based affirmative action or consider other approaches in the current legal and political environment. Even if she wasn’t shocked by Thursday’s ruling, she said it saddened her. “This is going to open the door to opponents of affirmative action in higher education to chip away at it,” she said. “For those of us who grew up in an era of increasing opportunity, of increasing cross-racial interaction, we could find ourselves going backwards.”

— Scott Jaschik

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