Grutter v. Bollinger
Supporting Grutter, the National Association of Scholars as amicus curiae (pp 4-11 and 15-21): Most professors and students, and most minority group members, oppose racial preference in university admissions. This Court's precedent in Bakke, properly understood, permits racial preference to remedy past identifiable discrimination, but not to promote diversity. The emphasis on racial identity by educators has led to less, not more, campus integration. (The complete brief is online here.)
Comments by Curtis Crawford,* indented in italics.
The Law School’s claim below2 that racial preferences are supported by a national consensus of educators is, in the first place, of dubious relevance. An individual’s right to equal treatment under the Constitution cannot be at the mercy of the shifting views of a small group of academics or hostage to popular opinion. Rather than looking to faculty and student opinions, this Court should instead be guided by the text of the Fourteenth Amendment and well-established constitutional norms that forbid a state, [-5-] absent the most extraordinary circumstances, to deal with people differently because of their membership in this or that racial group.
In any event, the national consensus invoked by the University simply does not exist. Empirical data reveal that most university faculty and students oppose racial preferences in student admissions. Further, African-Americans and Hispanic-Americans – the groups that are the primary intended beneficiaries of racial preferences – overwhelmingly oppose their continuation.
NAS [The National Association of Scholars] has sponsored two faculty opinion surveys regarding the use of racial preferences in student admissions. The first survey, in 1996, was conducted by the Roper Center (now known as the Center for Survey Research and Analysis ("CSRA")) at the University of Connecticut and covered colleges and universities throughout the country.3 The second survey, in April 2000, conducted by the same center, questioned faculty in the Connecticut public-university system.4 Both surveys elicited responses on an unattributed basis so that faculty members could express their views freely.
When college and university faculty were asked in the 1996 nationwide survey whether their schools "should or should not grant preferences to one applicant over another for admission on the basis of race, sex, or ethnicity," they decisively rejected the use of such preferences in admissions: 56 percent replied that their schools should not use such [-6-] preferences, while only 32 percent said that they should. National Faculty Survey 1996, Roper Center for Public Opinion Research, University of Connecticut (emphasis added) 5 ; see also Stanley Rothman, Seymour Martin Lipset & Neil Nevitte, Diversity and Affirmative Action: The State of Campus Opinion, ACADEMIC QUESTIONS (forthcoming Fall 2002) *(manuscript at 18, Table 5) (finding that 56 percent of faculty oppose racial preferences "in jobs or college admissions")*, available at nas.org.
The opposition to racial preferences was found to be even stronger in the part of the 1996 survey focusing exclusively on public universities such as the University of Michigan. Sixty-one percent of public-university faculty said that their universities should not grant race- or sex-based preferences in admissions, and only 29 percent said that they should. See National Faculty Survey 1996.
The April 2000 CSRA survey of Connecticut faculty produced results similar to those of the 1996 survey. Faculty at Connecticut’s public institutions of higher education were asked whether their school should grant racial preferences in student admissions. Opposition to racial preferences in student admissions ranged from 73 percent [to 58%] to 47 percent of faculty at the [three kinds of] educational institutions surveyed [Community Colleges, State Universities, and U. of Connecticut campuses], while support for such preferences ranged from 9 percent [to 23 percent] to 35 percent. See Connecticut Ass’n of Scholars Survey (Apr. 2000).
In sum, the premise that faculty view racial preferences as essential to the basic purposes of higher education, or even as desirable, is unfounded. Instead, most university faculty oppose the use of racial preferences in student admissions. I Thomas E. Wood, Who Speaks for Higher Education on Group Preferences?, [-7-] ACADEMIC QUESTIONS, Spring 2001, at 31-45 (summarizing survey research on attitudes toward racial preferences in higher education).
Two recent nationwide surveys of students concerning the use of racial preferences found most students decidedly opposed. See Zogby Academic Life Survey (Apr. 7, 2000), available at gofast.org/academiclifesurvey.htm; Rothman, et al, State of Campus Opinion, supra (manuscript at 14-15). *In the Zogby survey, when asked on an "agree" or "disagree" basis whether universities should "give minorities preferential treatment in admissions," 77.3 percent of students polled responded that minority students should not receive such preferences.* Zogby Academic Life Survey, supra; see also Rothman, et al., State of Campus Opinion, supra (manuscript at 14-15) (finding that 85 percent of students oppose racial preferences "in jobs or college admissions").
The Zogby survey concluded: "The issue of ethnic diversity stands out as an area where students disagree with current trends in college education. *While 84.3% of students said ethnic diversity on campus is important, 86.4% oppose racial preferences in admissions, favoring fairness instead.* Almost all (95.7%) said diversity of ideas (56.8%) and high academic standards (38.9%) are more important to a quality education than achieving ethnic diversity (2.9%)." Zogby Academic Life Survey, supra (emphasis added); see also Rothman, et al., State of Campus Opinion, supra (manuscript at 14-15) (finding that 75 percent of students oppose relaxing academic standards to admit more minority undergraduates; 76 percent oppose relaxing academic standards to hire more minority faculty).
In other words, students on campus are quite aware of, and overwhelmingly opposed to, the use of racial preferences in admissions. As we will discuss below in Part III, rather than being "essential" to education, the continued [-8-] use of racial preferences in the face of overwhelming student opposition may actually foster racial balkanization, and stereotyping, on campus.
Most African-Americans and Hispanic-Americans
Even the intended beneficiaries of racial preferences overwhelmingly oppose their use. A spring 2001 public-opinion poll conducted by the Washington Post, Kaiser Family Foundation, and Harvard University asked:
Of African-American respondents, 86 percent answered that decisions should be based purely on merit, compared to 12 percent who said race should be a factor. Hispanic-American respondents were equally opposed: 88 percent answered that decisions should be based purely on merit, compared to 7 percent who said race should be a factor.
Similarly, a 1991 Gallup Poll found that 69 percent of African-Americans rejected the proposition that, "to make up for past discrimination, women and members of minority groups should be given preferential treatment in getting jobs and places in college," and instead answered that "ability, as determined by test scores, should be the main consideration." The Gallup Poll (June 13-16, 1991), question 11.
[-9-] This opposition holds even when the poll states that the white and minority
college applicants are equally qualified. In December 1997, a New York Times/CBS
News Poll found that 63 percent of African-American respondents said that "race
should not be a factor" in deciding how "equally qualified college applicants"
should be treated. Only 25 percent of African-American respondents voted to "accept
[the] minority to achieve racial balance." New York Times/CBS Poll (Dec. 6-9,
1997), available at nationaljournal.com/
In a book published last year by Princeton University Press, two researchers, one from Stanford and one from the University of California, confirmed these results. See PAUL M. SNIDERMAN & THOMAS PIAZZA, BLACK PRIDE AND BLACK PREJUDICE (2002). The authors conducted a variety of opinion-survey experiments with African Americans, including a so-called "SAT experiment." Id. at 143-54. Interviewers provided black survey participants "with a description of two young men who are applying to college: George, who is black, and Sam, who is white." Id. at 145. The survey continued that "both [applicants] took the same ‘college entrance exam.’ Sam scored 80 out of a possible 100 points – a high enough score to establish him as a good candidate, but not so high for him automatically to be admitted. Sam’s score always [was] the same." Id.
The researchers varied George’s score "by increments of 5, from a low of 55 to a high of 75," the result being "a whole span of differences: at the largest, the white candidate does overwhelmingly better than the black, outscoring him by 25 points; at the smallest, the white candidate does barely better than the black, outscoring him by only 5 points." Id. The survey respondents – all African-Americans – were then asked the following question:
Id. at 146. The authors explain that the question was phrased to pose directly the following dilemma: "On the one side, every one is reminded that the score of the white applicant on the entrance exam was higher. . . . On the other side, the case for admitting the black applicant because of the continuing burden of discrimination and disadvantage that blacks bear is driven home directly, unambiguously, without a possibility of misunderstanding." Id.
Contrary to the researchers’ expectation – "that when the difference between the two [students] in their entrance examinations was small, blacks would disregard the scores" and choose the black candidate, id. at 146 – "[b]lacks overwhelmingly choose the candidate who scored higher, even though the higher-scoring candidate always is white, and they choose the white candidate over the black however small the difference between the scores," id. at 149. In fact, more than 75 percent of the African-American survey respondents chose the white applicant with the higher score when the difference in scores was at its lowest, 5 points. See id.
These studies demonstrate that when respondents are squarely presented with the issue of whether colleges should employ racial preferences in their admissions – as distinguished from vaguer questions concerning the merits of such undefined concepts as "diversity" or "affirmative [-11-] action"6 – even the purported beneficiaries of a policy of racial preferences are overwhelmingly opposed.
sum, there is no consensus in favor of the type of racial preferences the Law
School seeks to defend in this case. The cited studies indicate that most faculty
members, most students, and most African-Americans and Hispanic-Americans oppose
an admissions policy that awards preferences to members of minority groups.
THIS COURT HAS FORECLOSED THE LAW SCHOOL’S
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The Law School’s Reliance on Justice Powell’s Diversity Rationale
The Law School cannot claim any reasonable expectation that its racial-preference policy is constitutional based on the "diversity" rationale in Justice Powell’s opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), because that rationale has never been adopted by this Court. When this Court’s analysis of fragmented decisions in Marks v. United States, 430 U.S. 188, 193 (1977), is applied to Bakke, the Court’s holding in that case becomes clear: a racial classification may be used only to [-16-] remedy identified acts of past racial discrimination by the institution proposing the remedy.
The Sixth Circuit erred in ruling that, under Marks, "the rationales [of the separate opinions] supporting the Court’s judgment need not overlap on essential points in order to provide a holding that binds lower courts. Indeed, if the Justices agreed on essential points, the Marks analysis would be unnecessary." Pet. App. 14a. On the contrary, Marks directs that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds." Marks, 430 U.S. at 193 (internal quotation marks and citation omitted).
"It is important to realize that the Marks test does not look for the ‘narrowest opinion’ or the ‘narrowest analysis,’ but rather the ‘narrowest grounds’ for the judgment. That is, if only one aspect of the analysis in Justice Powell’s opinion overlaps with one aspect of the analysis in Justice Brennan’s opinion, then only that one aspect constitutes the ‘holding’ of the Court." Brian T. Fitzpatrick, Strict Scrutiny of Facially Race-Neutral State Action and the Texas Ten Percent Plan, 53 BAYLOR L. REV. 289, 341 (July 2001).
Justice Powell’s opinion discussed several different rationales for the use of race in admissions, but the Justice found a state’s use of race appropriate in only two instances. First, he found that "[t]he State certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination," based on specific findings and "subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the [same position]." Bakke, 438 U.S. at 307-08. Second, and separately, he found that the university had a compelling interest in the "attainment of a diverse student body." Id. at 311.
[-17-] Justice Brennan’s opinion, for himself and three others, addressed only the first set of circumstances -past racial discrimination -in which Justice Powell found that the use of race was permissible. Justice Brennan opined that racial preferences could be used to remedy "past and present" "societal discrimination" for which there had been no identified acts of past discrimination by the state actor. See id. at 369. Justice Brennan’s opinion overlapped with Justice Powell’s diversity rationale only to the extent that Justice Powell’s rationale was restricted to a remedy for past or present societal discrimination. See id. at 326 n.1 ("[T]he Harvard plan [upon which Justice Powell heavily relied to justify his ‘diversity rationale’] . . . is constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination.") (emphasis added).
In this regard, "the circumstances in which Justice Powell would have permitted the use of race in admissions - whenever the past discrimination had been identified by governmental findings -were a subset of the circumstances in which Justice Brennan, et al., would have permitted the use of race in admissions -whenever there had been past discrimination without regard to governmental findings." Fitzpatrick, supra, at 341-42. Accordingly, a correct application of the Marks analysis does yield a "holding" of the Court regarding when race can be used in admissions - i.e., whenever there are identifiable acts of discrimination committed by the state institution that itself now seeks to employ racial preferences.
The Law School thus had no reasonable expectation that its use of race to achieve "diversity" was legal under Bakke. When that decision is analyzed the way this Court in Marks directed that such a fragmented decision should be analyzed, it shows that the Court held that race could be used only when there were identified acts of past discrimination [-18-] by the state actor employing the racial classification. And that is not claimed to be so in this case. As the district court noted, "no party in this case has alleged, or offered any evidence to suggest, that the law school or the University of Michigan has committed any acts of discrimination against any minority group which might warrant a race-based remedy." Pet. App. 293a n.64.
This Court’s holdings rejecting the allocation of benefits and burdens by the state based on membership in a racial group, or because such membership is assumed to carry with it certain desired attributes or experiences, are well founded. The alternative – as the current state of our nation’s campuses shows – is racial balkanization and separation in an environment that suppresses individual liberty.
In justifying its opinion, the court below relied, in particular, on the Law School’s proffered theory of "critical mass" – i.e., that there "is a number [of underrepresented minority students enrolled] sufficient so that under-represented minority students can contribute to classroom dialogue and not feel isolated." Pet. App. 28a. The court of appeals went on to say that the role of critical mass was to ensure "sufficient numbers" such that "under-represented minority students do not feel isolated or like spokespersons for their race, and feel comfortable discussing issues freely based on their personal experiences." Id.; see also supra n.7. As the court of appeals put it, quoting the Law School with approval, "students from under-represented minority racial and ethnic groups" are "‘particularly likely to have experiences and perspectives of special importance to [the Law School’s] mission’." Pet. App. 27a (alteration in original).
Such fostering of group over individual identity by universities has led to more,
not less, racial balkanization on our nation’s campuses. In a report recently
released by the New York Civil Rights Coalition, the authors concluded that "[t]he
same schools8 that use race as a factor to achieve inclusionary
admissions will also permit its use as a factor in the selection of roommates
and preferences for living quarters in campus housing, for scholarships, and even
for the remediation and counseling of ‘at risk’ students. Race and ethnicity considerations
permeate almost every facet of campus life." Ramin Afshar-Mohajer & Evelyn Sung,
The Stigma of Inclusion: Racial Paternalism/Separatism in Higher Education
(Sept. 9, 2002), available at nycivilrights.org/reports/pdfs/ nycrc_
The chapter of the report on "special-interest" or "theme" housing is instructive. Id. at 21-23. The authors recount how university-sponsored "cultural" housing has led to "self-segregation" on campuses. Id. at 21. Accordingly, "[t]hese houses divert minority students from random housing assignments." Id. at 22. And "[m]any of these racially-based houses make it very clear in their mission statements that their goal is racial consciousness and identity, thus precluding the concept of a unified campus." Id. The Civil Rights Coalition authors could have been writing about the University of Michigan. For example, the University provides minority undergraduates with segregated advising services to aid in "the retention of minority students."9 The University’s "minority peer advisor assistants" help "African Americans, Native Americans, Asian Americans, and Hispanic/Latino/Latina Americans" adjust to college life. They are instructed to "identify[ ], be[ ] [-21-] accessible to, and establish[ ] ongoing communication with students of color in the[ir] hall," "assist[ ] in orientation of students of color to the hall and campus," and "assist[ ] with various aspects of academic advising in order to assist students of color in making academic decisions."10 The University likewise runs special, race-specific "leadership retreats" for African-American, Native American, Asian-Pacific, and Hispanic-American students.11
The University explains that its programs are designed not to integrate students, but to further "racial/ethnic identity development."12 Accordingly, minority peer advisers are instructed to "assist[ ] in the education of students and staff to promote differences particularly those associated with race, ethnicity and culture."13 Similarly, the University’s Multi-Ethnic Student Affairs program lists one of its goals as "community development" through "ethnic specific community task forces."14 Thus it is that the ideal of diversity, when achieved by racially conscious admissions policies, turns into the reality of segregation.
* * * *
3. The results of this survey appear at Appendix A to NAS’s court of appeals brief and are available at nas.org. . [return to text]
4. The results of this survey appear at Appendix B to NAS’s court of appeals brief and are available at nas.org. . [return to text]
5. The remaining respondents either did not know or refused to answer (and are listed as "DK/REF" in the results of the survey). . [return to text]
6. As Professor Sniderman and another collaborator, Edward G. Carmines, explain, the definition of affirmative action makes a tremendous difference. See PAUL M. SNIDERMAN & EDWARD G. CARMINES, REACHING BEYOND RACE 23-27 (1997). In this survey experiment, the researchers asked one group of white respondents whether, "because of past discrimination, qualified blacks should be given preference in university admissions," and asked a second group whether, "because of past discrimination, an extra effort should be made to make sure that qualified blacks are considered for university admissions." Seventy-five percent of whites opposed the "preferential treatment" program, compared to 65% who supported the "extra effort" program. Id. at 23-26. This, the researchers concluded, shows a consistent adherence to a fairness principle. When "special attention is necessary and appropriate to make sure [blacks] are judged by the same standards as everybody else," a majority of respondents favors "affirmative action." Id. at 27. But, "an even larger majority object[s] to affirmative action when it means that blacks will receive not special attention, but special treatment." Id. . [return to text]
7. The court below also relied heavily on the notion that the Law School had a compelling interest in using racial preferences in order to enroll a "critical mass" of "underrepresented" minority students. See Pet. App. 7a-8a, 28a. The lower court’s endorsement of "underrepresentation" to achieve certain levels of racial representation in its student body is a mask for racial balancing for its own sake. "Underrepresentation is merely racial balancing in disguise -another way of suggesting that there may be optimal proportions for the representation of races and ethnic groups in institutions," Wessmann v. Gittens, 160 F.3d 790, 799 (1st Cir. 1998) (citing Freeman v. Pitts, 503 U.S. 467, 494 (1992)); see also Lutheran Church-Mo. Synod v. FCC, 141 F.3d 344, 352 (D.C. Cir. 1998). . [return to text]
8. The study profiles thirty-two colleges and universities: Amherst College, Boston College, Boston University, Brown University, Buffalo State College, Columbia University, Cornell University, CUNY Brooklyn College, CUNY Queens College, Emory College, George Washington University, Georgetown University, Haverford College, Massachusetts Institute of Technology, New York University, Northwestern University, Oberlin College, Pennsylvania State University, Princeton University, Smith College, Stanford University, SUNY Cortland, Swarthmore College, University of California at Berkeley, University of Pennsylvania, University of Massachusetts at Amherst, University of Wisconsin-Madison, Vanderbilt University, Vassar College, Wesleyan University, Williams College, and Yale University. . [return to text]
9. See housing.umich.edu/resed/mpa.html (visited Dec. 20, 2002). . [return to text]
10. Id. . [return to text]
11. See housing.umich.edu/~salead/main.html (visited Jan. 14, 2003). . [return to text]
12. Multi-Ethnic Student Affairs: Mission, available at umich.edu/~mesamss/About%20MESA/about2.htm (visited Jan. 14, 2003). . [return to text]
13. See housing.umich.edu/resed/app/positions/mpa_assistant.pdf (visited Dec. 20, 2002). . [return to text]
14. Multi-Ethnic Student Affairs: Mission, available at umich.edu/~mesamss/About%20MESA/about2.htm (visited Jan. 14, 2003). . [return to text]