In 2003, two cases came before the Supreme Court that presented the stiffest challenge to affirmative action in decades. A White applicant to the University of Michigan’s law school sued the school, insisting that she had been rejected on the basis of her race. Similarly, two White applicants to the University of Michigan’s undergraduate school also sued, arguing the point system used by the university to assess applicants was unconstitutional.
Though the Supreme Court struck down the University of Michigan’s undergraduate point system in Gratz v. Bollinger, the court upheld in Grutter v. Bollinger the law school’s more informal “holistic” method of reviewing applications, which considers grades, test scores and recommendations, as well as race.
Using Grutter as a framework, universities have sought to strike a delicate balance between recruiting a diverse pool of applicants while adhering to the legal guidelines drawn by the High Court.
Since Grutter, universities have experimented with various methods of recruiting minority students, says Richard Kahlenberg, a senior fellow at the Century Foundation. Some schools automatically admit students from the top 10 percent of their class, which tends to indirectly produce diverse students since most high schools are fairly segregated, he says. Another option is the “socio-economic model,” in which preference is given to low-income and working-class students of all races.
“This notion has no legal impediment to it,” Kahlenberg says. “It’s clear that even the most conservative justices like Scalia and Thomas are supportive of the socioeconomic model. And also it has a lot more political support than racial or ethnic-based affirmative action.”
Kahlenberg points out that a recent survey found that Americans oppose race-based affirmative action by a 2-1 margin but support income-based affirmative action by the same margin.
But talk of socioeconomic preferences masks the fact that racial preferences are still alive and well in college admissions, says Richard Sander, a professor at UCLA’s school of law who specializes in the legal issues surrounding affirmative action.
“A lot of schools talk about socioeconomic preferences, but they’re still not used by most schools, and the schools that do use them tend to put very little weight on socioeconomic factors,” Sander says. Since the Gratz and Grutter decisions, he says, universities actually have increased the use of race-conscious affirmative action in admissions decisions.
“They moved in the opposite direction than O’Connor was implying,” he says.
Many institutions simply interpreted the ruling as a covert endorsement, rather than repudiation, of race-based affirmative action.
“Grutter and Gratz collectively were interpreted by university administrators as saying, ‘Don’t worry, we’re not going to actively oversee what you’re doing,’” Sander says.
Since the Grutter decision, many states have passed ballot initiatives outlawing the use of affirmative action. California’s Proposition 209, passed in 1996, amended the state’s constitution to prohibit public institutions from using race or gender preferences.
But even if such initiatives pass, many universities don’t feel legally bound to comply, according to Sander.
“Nowhere in the country has there been a suit enforcing these propositions against a particular university’s policies,” he says.
Many universities, Sander says, rather than relying on strict quotas, still rely on what he calls “informal” point systems.
“At some of the larger universities, they’ve adopted what they call a holistic system that in theory takes a lot of different factors into account,” Sander says. “But, in reality, they rely heavily on race.”
Some universities may look at White or Black applications separately, without directly comparing the two, Sander says. “If you just look at applicants’ credentials and predict who gets admitted, when you add race into the analysis, you can predict 95 percent of admissions,” he says.
Roger Clegg, president of the Center for Equal Opportunity, or CEO, is deeply skeptical of self-described “holistic” application processes, which often mask the tangible role that race plays in admissions.
“What is labeled a holistic process either smuggles race into the equation, as what’s happening at places like UCLA, or it makes race much more than simply a tiebreaker or a minor plus factor. It’s making race a huge determinant in who gets in or who doesn’t get in,” he says.
Recently, Clegg raised the ire of many affirmative action advocates by publishing a study that stated that the University of Wisconsin-Madison admitted Black and Hispanic applicants with lower grades and test scores than their White counterparts. UW-Madison released a statement reaffirming its commitment to recruiting diverse applicants through a holistic method.
“That process takes into account a range of factors, including grades, standardized test scores, recommendations, extracurricular activities, leadership and written statements,” the statement read. But Clegg says that the Gratz and Grutter decisions are often misconstrued by universities, which interpret the decisions as a “blank check” for race-based admissions.
“[Gratz] actually struck down the undergraduate policies at the University of Michigan because the use of race was so mechanical,” Clegg says. “And when you see race and ethnicity being weighed so heavily at UW-Madison, then it starts to look mechanical, too.”
For its part, the Center for Equal Opportunity would prefer that race not be factored into college admissions at all, which they consider to be a form of racial discrimination. Sander says it’s inevitable that the Supreme Court will revisit Grutter.
“If the Court doesn’t change its political composition at some point, these new practices will be challenged,” he says.
Universities should expect fresh challenges to affirmative action within the next decade, Kahlenberg says.
“Over time, as our student population is becoming increasingly diverse, the goal of creating a critical mass of students of color on campus is more manageable,” he says. “It’s easier to achieve.”
In the Grutter decision, Justice O’Connor predicated that affirmative action may become obsolete if diversity can be maintained by using race-neutral policies. Recent challenges to affirmative action seem to echo this belief. Fisher v. Texas, a case that is making its way through appellate courts, hinges on the argument that the University of Texas’ meritocratic system—automatically admitting students from the top 10 percent of their high school class—creates a critical mass of minority students without resorting to the use of race.
Even so, says Clegg, the “top 10 percent” plan employed by many universities has faults of its own.
“I’m actually not a great fan of the top 10 percent plan because I think it was motivated by a desire to achieve a particular racial and ethnic result,” he says. “I think it’s better to have admissions policies that are at least racially neutral than racially discriminatory.”
For its part, UW-Madison is in no rush to re-evaluate its admissions policies. Damon Williams, the university’s vice provost for diversity, says that other universities should have a right to choose which admissions policies best serve their institutional goals.
“There are always different types of techniques that other institutions can choose,” he says. “Each institution has the right to determine how they want to conduct admissions decisions within the boundaries of the law.”
Should the Supreme Court choose to revisit Grutter, says Williams, then it would be in the best interest of many universities for the decision to be upheld, since it provided clear guidelines on how to incorporate the use of race in admissions decisions.
“I believe [Grutter] creates a context for institutions to use race and ethnicity as a factor among many,” Williams says.