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 "Affirmative Action - Is This the Final Answer?"

THE SEVENTH ANNUAL
TEXAS HIGHER EDUCATION CONFERENCE
MARCH 3-4, 2003

  “AFFIRMATIVE ACTION – IS THIS THE FINAL ANSWER?”
BY
R. YVETTE CLARK
GENERAL COUNSEL,
STEPHEN F. AUSTIN STATE UNIVERSITY
P.O. BOX 13065
NACOGDOCHES , TEXAS 75962-3065
(936) 468-4305

 “AFFIRMATIVE ACTION – IS THIS THE FINAL ANSWER?”  

On December 2, 2002, the United States Supreme Court granted two petitions for writ of certiorari in two University of Michigan cases involving the use of race in admissions policies within the undergraduate program and the law school.

Help! You’re talking legal jargon?!

Definition Alert: A writ of certiorari is derived from the Latin term “to be more informed.” Blacks Law Dictionary defines the term as follows: “An extraordinary writ issued by an appellate court, at its discretion, directing the lower court to deliver the record of the case for review. The U.S. Supreme Court uses certiorari to review most cases that it decides to hear.”

I. The Case on Appeal before the U.S. Supreme Court

A. Undergraduate Case –

Gratz v. Bollinger was filed in October 1997 and involves two white applicants rejected by the University of Michigan’s College of Literature, Science, and the Arts (one rejected in 1995 and the other in 1997). The Undergraduate admissions selection process used in the College of Literature, Science, and the Arts is based on a 150-point selection index, with underrepresented minorities (rate related factor) earning up to 20 points. Other criteria included in the point process include: up to 80 points on GPA, up to 12 points on SAT or ACT scores, up to 10 points for attending a competitive high school, up to 8 points for challenging curriculum, up to 20 points for being economically disadvantaged, attending a high school serving a predominate minority population, or being a scholarship athlete, among others. Points are also awarded for personal achievement, essays, leadership and service, and for being an alumni legacy.

A legal twist in the Gratz case is that the only ruling on the lawsuit has been from the District Judge John Duggan, issuing his decision that diversity is a compelling state interest and the University’s current undergraduate admissions program meets the standards of the U.S. Supreme Court ruling in Bakke. He further ruled that the undergraduate admissions policies from 1995-1998 were unconstitutional. Both sides appealed to the 6 th Circuit Court of Appeals. The 6 th Circuit has yet to rule on the lawsuit, but the U.S. Supreme Court decided to accept this case along with the law school admissions case, Grutter v. Bollinger, for a long awaited determination on affirmative action in higher education admissions from the U.S. Supreme Court.

B. Law School Case –

Grutter v. Bollinger was filed in December 1997 and involves a white applicant rejected by the University of Michigan Law School. A different District Court Judge Bernard Friedman was assigned to hear this case. Unlike Judge Duggan in the Gratz case, Judge Friedman found that the law does not permit the use of race in admissions. Even if the law allowed race-conscious admissions, he concluded that the Law School’s policy weighted race too heavily.

The Law School appealed to the 6 th Circuit. In a five to four decision in May 2002, the 6 th Circuit ruled that the Law School’s admission policy was permissible under the U.S. Constitution, overruling Judge Friedman. The 6 th Circuit relied on the U.S. Supreme Court Bakke holding that the school has a compelling state interest in a diverse student body and that a narrowly tailored admissions policy could be used to achieve diversity. The 6 th Circuit determined that each applicant was individually treated, and that the Law School’s admissions policy of achieving a “critical mass” of minority students was not an illegal quota, but instead a means of achieving the educational benefit of a diverse student body.

II. Previous U.S. Supreme Court Cases on Affirmative Action

A. Regents of the University of California v. Bakke –

Bakke is the last U.S. Supreme Court case that addressed the issue of race in college admissions. It was decided in 1978 by a plurality opinion. Justice Powell wrote the plurality opinion deciding that the admission policy of setting aside 16 out of 100 seats for certain minorities to be admitted into the University of California at Davis Medical School violated the Equal Protection Clause. But, Justice Powell went on to explain that race could be used as one of many factors (not a determining factor) to achieve a compelling state interest of educational diversity. A plurality opinion does not reflect the majority view of the Court, but this opinion has been consistently relied upon by colleges across the country since 1978 as the only standing U.S. Supreme Court ruling directly on point.

B. United States v. Fordice –

Fordice is a 1992 U.S. Supreme Court case involving the need to dismantle the effects of dejure segregated systems of public higher education. The Court ruled that if a state perpetuates policies and practices traceable to its prior dejure segregated system that are without sound educational justification and can be practicably eliminated, then the state violates the Constitution even if the policies are race neutral. The Court thus established a requirement that affirmative steps must be taken beyond mere racial neutrality. This whole case revolved around the practices of the Mississippi higher education system and questioned policies on entrance requirements, programmatic missions, duplication of programs, the possible need for institutional mergers and a review of statewide funding of higher education. Only recently have the Courts released Mississippi from the affirmative requirements to dismantle the effects of its previously segregated educational system. The Fordice opinion was almost unanimous, with only Justice Scalia dissenting on the grounds that the Court’s standards were vague. Justice Thomas issued a concurring opinion expressing concern that Fordice should not be interpreted to require dismantling traditionally black colleges as vestiges of a segregated system. It would be ironic is such institutions were eliminated, thereby lessening the opportunity for African Americans, in an effort to end former discriminatory practices which prohibited or diminished African American students’ access to higher education.

Help! You’re using legal jargon again!

Definition Alert: Dejure segregation is defined by Black’s Law Dictionary “as segregation directly intended or mandated by law or otherwise issuing from an official racial classification, or in other words, segregation, which has or had the sanction of law. The term comprehends any situation in which the activities of school authorities have had a discriminatory impact contributing to the establishment or continuation of a dual system of schools, while “defacto” segregation is limited to that which is inadvertent and without the assistance or collusion of school authorities. ( State ex rel. Citizens Against Mandatory Bussing v. Brooks, 492 P.2d 536.)”

C. Wygant v. Jackson Board of Education –

Wygant is a 1986 U.S. Supreme Court case addressing the use of race in an employment-related setting to remedy the effects of societal discrimination. The Jackson Board of Education had an agreement with the teacher’s union to protect African American and other minority teachers by requiring that a sufficient percentage of more senior Caucasian teachers be terminated in the event of a layoff in order to maintain the racial balance of the staff so that minority teachers could serve as role models to the students. The Court ruled that remedying the broad effects of society discrimination did not constitute a compelling state interest.

D. City of Richmond v. J.A. Croson, Co. –

Croson is a 1989 U.S. Supreme Court case involving governmental contracting quotas for minority owned businesses. The City of Richmond required primary contractors who were awarded a city construction contract to meet a quota of at least 30% of the dollar amount of each contract to “Minority Business Enterprises.” Similar to Wygant, the Court ruled that generalized discrimination in the construction industry was insufficient to support a race-based set-aside. Remedying the effects of societal discrimination clearly does not create a compelling state interest.

E. Adarand Constructors v. Pena –

Adarand is another U.S. Supreme Court case involving governmental contracting preferences for minority subcontractors. The government regulations gave a financial incentive to contractors who subcontracted with certified small businesses owned by “socially and economically disadvantaged” individuals. Adarand was not certified, so the subcontract was awarded to a certified subcontractor with a higher bid. The Supreme Court ruled five to four that “all racial classifications, imposed by whatever federal, state, or local actor, must be analyzed by a reviewing court under strict scrutiny.” The Court overruled a prior U.S. Supreme Court case ( Metro Broadcasting) that had set a lower standard of review for federal agencies’ minority preferences.

Help! Legal jargon once again!

Definition alert: Strict scrutiny is the highest standard of legal review. Black’s Law Dictionary defines strict scrutiny as “the standard used in Constitutional law as applied to suspect classifications such as race. It is used in equal-protection analysis and in fundamental rights.” Under strict scrutiny, the state must establish a compelling state interest for the government action in question, and it must be narrowly tailored to meet the stated interest.


III. Federal Circuit Court Cases on Affirmative Action

A. 5 th Circuit ( Texas, Louisiana, Mississippi)

Hopwood v. Texas –

The lawsuit was initiated in 1992 by four Caucasian students who were denied admission to the University of Texas Law School. The admissions policy at issue started with an analysis of LSAT scores and GPA. Students who fell into a middle group for discretionary admittance were forwarded to a committee for review. Hispanic students and African American Students submitted for a committee review required a lower threshold and were send to separate committees. The 5 th Circuit finally ruled on the case in March 1996, and rejected the Bakke U.S. Supreme Court analysis. Instead, the Court used other more recent Supreme Court decisions cited above which involved affirmative action in employment and government contracting as a basis for ruling that diversity is not a compelling state interest on the grounds that societal discrimination is insufficient. While the UT Law School was able to show historical discrimination against African Americans by the school, recent history did not show a correlation to current practices, and there was no evidence of discrimination presented as to Hispanics. The Texas Attorney General issued Opinion 97-001that the Hopwood holding applied to all government actions allocated on the basis of race or ethnicity. Specifically, Morales indicated that Hopwood applied to financial aid, scholarships, fellowships, recruitment, retention or internships. The U.S. Supreme Court denied certiorari on two separate Hopwood appeals in 1996 and 2001.

B. 6 th Circuit ( Michigan, Ohio, Kentucky, Tennessee)

Gratz v. Bollinger –

University of Michigan undergraduate case cited above.

Grutter v. Bollinger –

University of Michigan law school case cited above.

C. 9 th Circuit ( California, Arizona, Nevada, Idaho, Montana, Oregon, Washington, Alaska, Hawaii)

Smith v. University of Washington –

This lawsuit was initiated in 1997 by three Caucasian applicants who were rejected by the University of Washington Law School. The admissions policy at issue ranked applicants by their LSAT scores and GPAs. Admissions personnel reviewed other factors including race, but did not use a particular formula in doing so. The 9 th Circuit Court of Appeals ruled in December 2000 that racial diversity on college campuses was a compelling governmental interest in accordance with the Bakke ruling cited above. The U.S. Supreme Court declined certiorari in the Smith case,

leaving the 5 th Circuit and 9 th Circuit with opposing rulings. The 9 th Circuit sent the Smith case back to the trial court for a determination of whether the admission policy at issue was narrowly tailored to achieve the compelling state interest of educational diversity. Washington State then adopted Proposition 200 in 1998 to amend the state’s constitution and banned the use of racial preferences.

D. 11 th Circuit ( Alabama, Georgia, Florida)

Johnson v. University of Georgia –

This lawsuit was brought by three Caucasian applicants denied admission to the University of Georgia in 1999. University of Georgia’s admission policy at issue admitted 85% of its freshman class based on academic qualifications only. The remaining 15% were reviewed under a formula called a “total student index.” Race was included as a factor in the index with non-Caucasian students receiving a bonus to their score. The 11 th Circuit Court of Appeals ruled that the admissions policy was not narrowly tailored to promote diversity, because Caucasian students did not receive bonus points for their potential contributions to campus diversity. The 9 th Circuit Court refused to rule on whether diversity was a compelling state interest, suggesting that was a decision for the U.S. Supreme Court.

IV. The Pending Arguments in Gratz and Grutter

A. The Petitioners’ Arguments –

The Petitioners’ arguments in the Gratz and Grutter appeals question the constitutionality of using race-based admissions under the Equal Protection Clause of the U.S. Constitution. Specifically, they assert that strict scrutiny has not been properly applied and that racial preferences are not a compelling state interest. Use of racial preferences by government, they assert, should be limited to remedying the present effects of past discrimination. Racial diversity as a compelling state interest is too nebulous and can be perpetuated for an indefinite period of time. They also argue that the Michigan admissions policies are not narrowly tailored and are notoriously ill-defined.

B. The University’s Argument –

The University of Michigan relies on the premises of Bakke, that educational diversity is a compelling state interest, especially in light of the new global economy. Many global corporations, including General Motors, Microsoft, and others, have filed amicus briefs in support of this premise. Instead of simply relying on Bakke, a major strategy of the University was presenting evidence that diversity is a compelling state interest. The 6 th Circuit accepted the Bakke precedent on educational diversity as a compelling state interest in the Law School admission case, Grutter. In Gratz, Judge Duggan states that the University presented “solid evidence regarding the educational benefits that flow from a racially and ethnically diverse student body.”

The University further argues that its admissions policies are narrowly tailored to achieving the goal of a diverse student body. Race is but one of many factors considered in admission as proscribed by Judge Powell under Bakke. Each student is individually reviewed with no numeric goals or quotas. Michigan argues that all students admitted are well qualified to succeed in their competitive institution.

Help! More jargon!

Definition alert : What is an amicus brief? Amicus curiae is a latin term for “friend of the court.” Black’s Law Dictionary defines the term as follows: “A person who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. Often shortened to amicus.”

C. The United States’ Amicus Briefs –

The President’s position in this highly political debate on affirmative action has been closely watched by those following the Michigan cases. The briefs filed on behalf of the United States were developed by the Justice Department and reviewed by the Solicitor General, Ted Olson, who happens to be the attorney who represented the plaintiff in Hopwood. It was reported that the executive branch was highly divided on the government’s position in this all important appeal. With Condeleeza Rice as National Security Advisor in the Whitehouse, her experience as the former Provost at Stanford likely weighed into the debate. In the end, the U.S. Government under the President’s leadership filed briefs on the two cases which attempted to side-step the critical and fundamental question of whether diversity should be considered as a compelling state interest. The United States’ briefs focused on attacking the University of Michigan admissions policies as not being narrowly tailored in light of existing race-neutral policies that can achieve diversity. They refer to the Texas, Florida and California plans of admitting top percentages of high school graduating classes automatically.

D. Other Amicus Briefs –

The deadline for filing amicus briefs in these cases was February 18, 2003. Many briefs have been filed with the U.S. Supreme Court in both cases under consideration from a large variety of interests. Some amicus briefs are in support of the petitioners, some in support of the University, and some in support of neither side. A summary of the amicus brief filings can be reviewed on the University of Michigan web site tracking these admissions lawsuits.

V. Top Percent of Class Automatic Admissions Policies

A. Texas Top Ten Percent Rule –

Soon after the Hopwood ruling in the 5 th Circuit, Texas scrambled to find race neutral means of maintaining a diverse student population. Texas Education Code Section 51.803 created an automatic top 10% admission policy for undergraduate students in state universities, which is summarized as follows:

Recent legislative bills have been filed in the current 78 th Session of the Texas Legislature to modify or extend the top 10% rule. Representative Ron Wilson, D-Houston, has filed House Bill 484, which would require state graduate and professional schools to admit undergraduates who graduate in the top 10% of their class regardless of scores on graduate admissions exams.

Senator Jeff Wentworth, R-San Antonio, filed Senate Bill 86, which would require students to complete the more rigorous recommended college bound or honors with school curriculum to be eligible for the automatic top 10% admission into a state university.

Representative Joaquin Castro, D-San Antonio, filed House Bill 612, which would require high schools to notify families that their children qualify for admission to any state university in Texas.

B. Florida’s Talented Twenty Program –

Florida Administrative Code R. 6C-6.002(7) guarantees undergraduate admission to the top 20% of students from Florida high schools. It also establishes a 2+2 program, which guarantees students who complete a community college degree admission as transfer students to any state university in Florida.

C. California Policy –

Since California adopted Proposition 209, prohibiting the use of race in admissions, a top 4% rule on guaranteed state college admissions was adopted, similar to Florida and Texas.

VI. Reading the U.S. Supreme Court and Possible Implications

A. Reading the Court –

The legal doctrine of stare decisis will be a founding principle in determining how the U.S. Supreme Court may rule on the question of affirmative action. We must first look to the U.S. Supreme Court cases that address affirmative action issues.

Help! More legal jargon!?

Definition Alert: Stare decisis is a latin phrase meaning “to stand by things decided.” Black’s Law Dictionary defines it as “the doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation.”

Fordice tells us that affirmative action continues to be permitted to cure a specific finding of discrimination against the entity that is sued. Societal discrimination is not enough to create a compelling state interest allowing the use of racial classifications by government actors, as determined and Croson and Wygant. Any use of racial classifications by government actors will be subject to strict scrutiny, the highest standard of review imposed by the courts, as learned in Adarand. Quotas are not a narrowly tailored plan for achieving a compelling state interest, as seen in Croson. But, will an individualized approach of using race as one of many factors for determining admission to achieve a “critical mass” goal for educational diversity pass constitutional muster by the current U.S. Supreme Court? This is the question at hand. Will Bakke’s plurality be upheld as a longstanding legal doctrine permitting educational diversity as a compelling state interest?

Questions to look for:

1. Is educational diversity a compelling state interest?

2. Or is educational diversity simply another term encompassing general societal discrimination, which the U.S. Supreme Court has said is not enough to be a compelling state interest?

3. Are race-neutral plans like the Texas top 10% rule a more narrowly tailored means of achieving educational diversity?

4. Are admissions plans which use race as one of many factors constitutional under any circumstances? (Often a fact specific inquiry.)

5. Or are the “race as one of many factors” plans simply a soft quota for racial preferences?

The U.S. Supreme Court does not always adhere to previous decisions, as they may overturn a prior decision and establish new law. The Justices in Bakke could not agree as a majority on the very issue under review. A long time has passed since the Bakke decision in 1978, and the Court has been reluctant to take up the question. Much confusion has developed amongst the differing opinions within the Circuits. The 5 th Circuit in Hopwood dismissed Bakke as good legal precedent and instead looked at the more recent U.S. Supreme Court rulings on affirmative action in other areas. The 6 th Circuit ruled in Grutter that a diverse student body was a compelling interest. The 9 th in Smith also agreed with the 6 th Circuit that diversity was a compelling interest. But the 11 th Circuit side-stepped the diversity as a compelling interest question by merely ruling that the University of Georgia admissions policy was not narrowly tailored enough to pass the strict scrutiny standard. Much of the confusion created by these differing circuit court rulings should soon be cleared.

However, the courts look at decisions to only address the narrow issues at hand. A decision often creates new confusion over the possible implications of the decision for scenarios which differ slightly from the circumstances under review.

B. Possible Implications –

Will the decision of the U.S. Supreme Court regarding affirmative action in admissions affect the application of racial preferences in other areas such as scholarships, employment, and government contractors?

What about the Texas Historically Underutilized Business (HUB) Program? State agencies are asked to make a good faith effort to improve HUB subcontracting, but there are no rigid quotas or requirements beyond reporting efforts to the state.

Will multicultural centers still be allowed to operate on University campuses, and what student groups will be permitted to fall under the umbrella of such programs? You likely cannot use race.

What about private institutions? Recently, MIT and Princeton have cancelled summer orientation programs geared only to minority students. Private institutions are not traditionally considered government actors per se, but they do accept a great deal of federal funds for financial aid and research grants. Can you imagine Yale accepting the top X% of graduating high school students?

How can graduate schools accept students on an X% basis to adhere to race-neutral diversity plans? Could a Liberal Arts student who graduated in the top 1% of their college class go to medical school without ever taking organic chemistry or any science for that matter?

What about alumni legacy programs? Is preference given to children of alumni just a different form of affirmative action preference on the part of select universities? Do such preferences have a disparate impact on minorities?

Too many questions, and never enough answers. We simply know that it will be those of us gathered in this conference on the front lines of making new decisions on how to respond to the pending decision of the U.S. Supreme Court.

VII. Is this the final answer? – Yes and No.

How’s that for a lawyerly response?! In summary, the U.S. Supreme Court decision in the Gratz and Grutter cases will definitely end the current confusion between the Circuits, but no opinion is ever final. It will set precedent to guide us all through the months and years ahead, but there will always be new challenges to the implications raised by any ruling. We must wait and see how far-reaching this decision will be. The U.S. Supreme Court is set to hear the Michigan cases on April 1, 2003, with a ruling from the Court likely to come by June.

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