The Michigan Affirmative Action Cases

by Nancy Bekavac

On April 1, 2003, the United States Supreme Court heard oral arguments in two cases that may have important implications for Scripps College admission and other College operations. The two cases are Grutter v. Bollinger, challenging school admission policies at the University of Michigan, and Gratz v. Bollinger, challenging the University of Michigan’s undergraduate admission policy on the grounds that, by explicitly permitting the award of 20 points of a possible 150 points for racial diversity, the University’s policy violates the 14th amendment to the Constitution.

In the prior history of both cases, the Sixth Circuit Court of Appeals ruled that the University of Michigan had the right, under Bakke v. CaliJornia (decided in 1978), to take racial dversity into account in a non-quota process as part of seeking an overall educational goal: namely, preparing students for a diverse society.

The Supreme Court has been asked by the complaining parties to find that the explicit “weighing” of race as a factor in favor of admitting a student violates the holding in Bakke. However, if the Supreme Court agrees with the Sixth Circuit, reasoning goes, why would it decide to review the Michigan case at this time?

You may wonder why Scripps College, which is private, small, and which has no procedures remotely like those of the undergraduate program at Michigan, has a direct interest in the outcome of these cases? We do have an interest in three ways:

  • First, it is likely the Court will rule that its determination will apply not only to public colleges and universities that are branches of government, but also to all colleges and universities that receive federal money through any of the major student grant programs (Pell, SEOG, etc.). Because Scripps participates in such program-as do virtually all private colleges and universities-it would be bound by law to follow what the Supreme Court holds. That means Scripps College would be legally bound to comply with the ruling or risk losing all federal student aid, as well as be liable to any private party wronged by the College’s actions.
  • Second, the College’s commitment to diversity in higher education means that it has an interest in preserving the widest array of means to help achieve diversity in all aspects of education. So the College has a public policy interest in the outcome for higher education.
  • Third, the College has a more general interest in the social policy goals ofcivil rights and equal access that goes beyond higher education.

Now, you may ask, what has Scripps College, or higher education in general, done about its interest in these cases? Like many other educational institutions, Scripps, through various organizations, is participating by filing amicus curia-“friend of the court”- briefs in the U. S. Supreme Court. Generally speaking, higher education, coordinated through the American Council on Education (ACE), filed a single brief on behalf of all its membership-such as Scripps and the other Claremont Colleges. Scripps belongs to several other organizations (National Association of Independent Colleges and Universities, Association of Independent California Colleges and Universities, Women’s College Coalition) that have combined to file a single brief. The briefs are available for you to view at http://www.urnich.edu/-urel/admissions/legal/arnicus.html. Over 40 briefs were filed in favor of the University of Michigan’s position.

Ths is an important case in the history of civil rights, particularly for higher education, arguably the most important since Bakke. The Michigan cases have prompted serious discussion in many forums, and the outcome of the cases will affect Scripps and other colleges. These cases, and the movement to eliminate any use of racial categories or to take race into in any programs in higher education, have already had an effect. Recently, Woodrow Wilson School has announced that, effective next year, it ‘will discontinue its 17-year-old program for minority students, which is limited to “students of color from historically underrepresented backgrounds.” Princeton, contacted by two “watchdog” groups, has determined the program probably would not survive a legal challenge and emphasized that it was dropping the program in part to forestall a broad inquiry by the Office of Civil Rights into all of its admission policies. In February, MIT announced that its summer teenage “outreach” program in math and science, limited to African-American, Hispanic and Native American students, is being cancelled because it may not pass legal scrutiny.

These announcements signal a remarkable change in the legal climate, if even Princeton is concerned about the cost of litigating its own procedures. Part of this stems from the vigilance, determination, and resourcellness of an ongoing national movement to challenge the use of “race conscious” categories in all aspects of civic life. If the movement is successful, some of what we now do in higher education will change. But what is ahead of us immediately is what the Supreme Court decides in the Michigan cases. That opinion will be published, almost certainly, by early summer of this year.

There are plans already in the making for the major higher education associations to convene discussions this summer around the opinion to try to develop a shared consensus and understanding of its consequences. Let me be clear: Scripps College does not have or use quotas for any group of students; it follows an approach that can be termed “holistic” in that each applicant is judged on a variety of criteria-academic achievement, teacher recommendations, strength of academic preparation, standardized test scores, her essay, as well as on her other achievements, whether in art, music, athletics, theater, community service, dance, bird watching, or any other endeavors. Many have on-campus interviews, sometimes with faculty members. We seek to admit and enroll a truly diverse, energetic, talented, and varied group, one that, as Dean Goldsmith puts it, will teach each other as much as they learn in class. Our process therefore resembles the process used by the law school at the University of Michigan, which says explicitly that it seeks racial, economic, and ethnic diversity but does not quantify that goal. If the Supreme Court were to rule that colleges and universities could not in any way consider race, it would be difficult to know how to interpret that ruling in a way that might not lead to real difficulties.

If a student wrote an essay about her admiration for a great-great-great grandmother who had been a slave, would that not raise the question of that applicant’s race? How could any decision maker prove that knowledge of the student’s race had not weighed in the judgment to admit her? These are the questions that no one can answer until there is a ruling by the Supreme Court, and until we know the dimensions of what is constitutionally permissible.

I want to emphasize that we cannot know in advance how Scripps will be affected, but I do want to emphasize the complexity and range of the issues now before the Supreme Court in these cases. Discussion on the Scripps campus and in Claremont has been vigorous and impassioned, serious and concerned. That is as it should be. As Gunnar Myrdal noted in his landmark 1944 work, An American Dilemma, race is a continuing challenge to American democracy; race is an American dilemma, now as it has been for more than 300 years. The decisions in these cases will set the rules for discussion for the next few years, as all of us continue the work of the American experiment.