By Bob Needham
Michigan Law
The Supreme Court’s decisions in Students for Fair Admission v. Harvard and Students for Fair Admission v. University of North Carolina effectively prevent colleges and universities from considering race in the admissions process—a practice often employed to advance goals of a diverse and inclusive student body. While the full effects may take years to play out, the history of the issue in Michigan—specifically at Michigan Law—offers perspective.
In the 2003 Grutter v. Bollinger decision, the Court ruled 5-4 that the Law School was justified in considering race in admissions, as the school had a "compelling interest in achieving diversity among its student body." However, in 2006, Michigan voters passed Proposal 2, which amended the state Constitution to ban affirmative action in admissions. Several other states enacted similar bans.
Senior Assistant Dean Sarah Zearfoss, ’92, has led the Law School’s admissions and financial aid offices since 2001. Dean Emeritus Evan Caminker, the Branch Rickey Collegiate Professor of Law, became the Law School’s dean in 2003, just months after the Grutter decision, and served in the role until 2013.
Zearfoss and Caminker are well versed in the real-time effect of affirmative action laws and policies, including the fallout from Proposal 2.
1. In the wake of Proposal 2’s passage in 2006, what has Michigan Law learned about the challenges of achieving diverse student bodies without being able to consider race? What advice would you give to other institutions?
Zearfoss: My main piece of advice to other institutions is: Breathe. This will be a long process—a marathon, not a sprint. The most critical initial step is to gather together the people in your institution most attuned to its mission and most interested and invested in the cohort of students you enroll. Start by thinking big: What are your institutional goals? What is it you’re trying to achieve? And from there, you can design a new and, one hopes, effective admissions policy. I remember vividly going through that process here, and the incredible
contributions many of our con law faculty made over the course of many long meetings as well as one-off conversations—Don Herzog, Daniel Halberstam, Richard Primus, and others, including our then–dean, Evan Caminker. Their expertise in the field of constitutional law was useful, but their knowledge of and commitment to the University of Michigan Law School is what made the difference.
We considered many different approaches to rewriting the admissions policy and landed on one that was very similar to our original policy: holistic, taking into account not just test scores and grades but every contextual bit of information we can glean about those achievements, as well as non-contextual information about character and personality—while omitting data on race as information we consider. It has enabled us to be flexible and non-mechanical in our assessments, and it has worked well in helping us carry out our mission and achieve our goals. Other similarly situated schools have taken quite different approaches, and there’s no one path that is correct.
That said, while I’m satisfied that our policy and process work the best for our goals within the limits of the law, there is no question that omitting race as a data point meant that we struggled for many years with enrolling a racially diverse student body. And that’s why I say “breathe” as my advice to other institutions—reading files will take longer as you adjust to a new system, and your results are, at least initially, not likely to be what you want them to be. But if having a racially diverse population is important to your institutional mission, you have to keep at it. There will be an understandable sense of hopelessness in some folks at any institution, a sense that there’s no point in trying anymore; for the sake of our students and our missions, we need to resist and push back on that. If I were no longer able to use the LSAT or undergraduate record in my evaluations of candidates, I would view that as a deeply unfortunate problem that makes my job a lot harder—but I wouldn’t stop trying to figure out how to get students with tremendous academic potential. Over time, you’ll figure out small things you can do that help, and you will stop doing small things that hurt—and all the small things accumulate for results you can be proud of.
I’ll note that we had one advantage: The passage of Prop 2, which necessitated our transition to race-blind admissions, came more than three years after the conclusion of the Grutter lawsuit, in which the Court affirmed the constitutionality of our use of race in admissions. So when Prop 2 was enacted, we had already accumulated many years of research and investigation on the question of how best to move forward in a race-blind environment, given our uncertainty as to how Grutter would be decided. In other words, we had a lot of warning about the change that eventually came. While UNC and Harvard have likely been going through a similar process in the course of their litigation, most other schools have not, and that will be an added challenge.
2. What are the immediate effects of the new SFFA rulings?
Caminker: The decision is narrowly focused on affirmative action in the university setting, and the immediate effect is to preclude race-conscious decision-making in admissions (and presumably in related programs such as allocation of financial aid whether based on need or merit). The Court didn’t say anything about whether schools may still seek some level of racial diversity through race-neutral means. But experience in Michigan and California and studies show that there are no race-neutral proxies that can produce nearly the same levels of racial diversity, and those proxies tend to crowd out a school’s ability to also consider important merit-based factors such as an applicants’ leadership skills, work ethic, ability to overcome obstacles, and the like.
3. How will this ruling affect Michigan Law, if at all, given a race-blind process since 2007?
Zearfoss: The Harvard and UNC decisions will have no immediate impact on the University of Michigan, given that we have long had a race-blind schema and have spent many hours (well—years) and put a lot of thought into how best to adjust to that; indeed, we might even have some temporary recruiting advantage, in light of the expertise we have accrued.
That said, the effect of race-blind restrictions on our feeder undergrad institutions has been limited until now—Berkeley, UCLA, and, of course, our own Michigan undergraduate programs have all had race-blind restrictions, but no private schools have been so constrained, nor have the vast majority of our public feeder schools. In five more years, though, all undergrad institutions will have graduating classes that were produced under a race-blind system, and it remains to be seen exactly how that will affect the population of people applying to professional school–but I’ll be astonished if the overall undergraduate population is not a lot less racially diverse than it is today, and that will have knock-on effects for the makeup of the pool of people applying to law school, and thus to the makeup of our community, over and above the effects of the race-blind restriction itself.
4. What tools will colleges and universities still be able to use?
Zearfoss: To be frank, we have some techniques that we’ve developed over the course of the almost two decades in which we haven’t been able to use race as a factor in admission, and I’m not going to share all of that. My consolation for our many years of struggling is that for a few minutes now, we may have a slight advantage. I think of admissions processes as falling into three buckets: the pre-admit stage of assembling a pool of applicants; the admissions stage, where we make decisions about whom to admit; and the post-admit stage, where we endeavor to persuade those whom we admitted to accept our offer. The SFFA decision addresses only the admissions process itself, which means that schools can attend to the other two stages without falling afoul of the Court’s opinion.
To endeavor to assemble a racially diverse applicant pool, schools should travel broadly and look for events that are specifically aimed at a racially diverse population. Likewise, providing online workshops and other virtual offerings that allow potential applicants to get familiar with a school without investing in a campus visit is critical. Schools should reach out to and waive fees for a wide variety of candidates who register with the Law School Admission Council’s candidate referral service—in doing so, I’ve always felt it was important to be very clear about the limitations of our race-blind system, while nonetheless being encouraging about our interest in receiving their applications, and I continue to think that is a critical mark of integrity. Also, including the voices of current students in communications and publications is certainly something applicants will hope to see.
At the post-admit stage, we interpret state law as foreclosing us from using special gatherings (e.g., diversity weekends) where the invitation list is delineated by race, or offering scholarships or other inducements in a race-based manner. Whether other institutions will think the logic of SFFA requires that remains to be seen. But we make sure to use lots of people to help with outreach, whether that’s alumni, administrators, or particularly friendly, socially adroit faculty, along with students—and that will certainly continue to be permissible. I am always leery of asking too much of students, of course; their first obligation is to themselves and their learning.
Finally, there is the admissions stage. The Court made clear that “nothing in this opinion should be constructed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise”—although it cautioned that schools cannot simply use essays as an end-run around their race-blind mandate. But schools should experiment with different sorts of essays, of different lengths, and with and without specific prompts, so that students have the opportunity to tell their stories.
Likewise, schools need to make sure they are adequately encouraging applicants to explain the context of their achievements—if they got a 3.5 while working 30 hours per week, that might very well be more impressive than a 4.0 earned without any outside activities.
Schools can also expand whatever efforts they’re already making to enroll students who are socioeconomically disadvantaged—a form of diversity important for its own sake, although opinions differ as to whether it results in any increase in racial diversity. Schools should consider asking, if they don’t already, about parental education and employment, about an applicant’s first-generation status, about whether an applicant has ever received Pell Grants, and so on.
While many of the more unusual efforts employed in the undergrad realm won’t work for law schools—think Texas's 10 percent plan—there is room for thinking broadly and creatively.
Some law schools utilize comprehensive financial questionnaires; others have implemented pipeline programs or specialized curricula on race and law; still others have partnered with HBCUs or other minority-serving institutions.
Finally, it is critical to think about after a class is enrolled. Preserving, developing, and enhancing the sense of belongingness and inclusion for all segments of the student body was important before this decision was issued, and now it is more so.
5. Do you think the case was correctly decided?
Caminker: Given our nation’s sordid history and experience with rank racial discrimination against Blacks and other minority, ethnic, and other groups, any use of race by significant societal institutions presents a tricky issue. Both supporters and opponents of race-conscious admissions have the same long-term goal: getting to the point where race no longer matters, either in institutional decision-making or in daily life. The question is how best to get from here to there and, more specifically, whether our Constitution and federal laws permit the careful and modest use of race-consciousness in important settings as a transitional path. In my view, at this point, the benefits of affirmative action that Justice O’Connor valued in her Grutter opinion—including improved learning environments, diffusion of racial divisions and stereotypes, and promotion of overall democratic legitimacy by ensuring a racially diverse group of national leaders—outweigh the concerns emphasized in today’s majority opinion.
The Court places a lot of emphasis on the fact that it is difficult to measure or quantify the precise impact and contribution of any particular modicum of racial diversity. But study after study shows that racial diversity helps people learn from one another, improves group decision-making, and breaks down racial stereotypes. Just because a benefit cannot be measured with precision doesn’t mean the benefit isn’t significant.
6. This decision is likely to leave a lot of people feeling dispirited. What message do you have?
Zearfoss: I would say something similar to the advice I would give institutional actors: Don’t throw in the towel, don’t assume it’s hopeless. There are many, many aspects to what makes a candidate successful—think about all the ways you can demonstrate your strengths in your application materials.
Being a lawyer is an incredibly important leadership role in our society, and if you’re inspired to be a lawyer, you can get there. This decision might make it more challenging in the short run, but law schools will still want to admit you; give them that opportunity.
Caminker: I co-sign what Dean Zearfoss said! Also—there are 200 law schools in this country, and all of them confer JDs and enable you to practice law and change the world.
Follow your own path: Wherever you attend, you’ll be introduced to the skills and experiences that can enable a lifetime of fulfillment and accomplishment.
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