The Trump administration is preparing to redirect resources of the Justice Department’s civil rights division toward investigating and suing universities over affirmative action admissions policies deemed to discriminate against white applicants, according to a document obtained by The New York Times.
The document, an internal announcement to the civil rights division, seeks current lawyers interested in working for a new project on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”
The announcement suggests that the project will be run out of the division’s front office, where the Trump administration’s political appointees work, rather than its Educational Opportunities Section, which is run by career civil servants and normally handles work involving schools and universities.
The document does not explicitly identify whom the Justice Department considers at risk of discrimination because of affirmative action admissions policies. But the phrasing it uses, “intentional race-based discrimination,” cuts to the heart of programs designed to bring more minorities to university campuses.
Supporters and critics of the project said it was clearly targeting admissions programs that can give members of generally disadvantaged groups, like black and Latino students, an edge over other applicants with comparable or higher test scores.
For entire story: NYT’s
Is it legal for colleges and universities to use race as a deciding factor for purposes of admission?
In 1997, one brave student took on the University of Michigan and their unfair practice of making the race of the student applicant a much higher priority than the accomplishments of the student when making admission decisions. Meanwhile, a second lawsuit on behalf of Barbara Grutter against the University of Michigan Law was also filed. Both Gratz and Grutter’s cases ended up in the US Supreme Court.
Here’s what happened:
In 2003, the Supreme Court decided the landmark cases of Gratz v. Bollinger and Grutter v. Bollinger. Several years after CIR’s historic victory in the Fifth Circuit, Hopwood v. Texas, which struck down the use of racial preferences in all states in the Fifth Circuit, the Sixth Circuit court of Appeals upheld the use of the racial preferences program at the University of Michigan. Because of the contrary conclusions of law reached by the Circuit Courts, the Supreme Court agreed to hear the case.
CIR successfully urged the Supreme Court to strike down the racial preferences system at the University of Michigan’s College of Literature, Science, and the Arts, but the Court left the door open for universities to continue using racial preferences under narrow circumstances and allowed the University of Michigan’s law school to continue its practice of utilizing race-based admissions.
Jennifer Gratz applied to the University of Michigan’s undergraduate College of Literature, Arts, and Sciences in 1994, when she was still a high-school senior in a suburb of Detroit. In high-school, she worked as a math tutor, a cheerleader, and served as her Class Congress Representative. She scored 25 on the ACT (in the 83rd percentile) and graduated high-school with a 3.765 GPA. Despite these accomplishments, Gratz was put on a waitlist before ultimately being denied admission to the University.
At the time Gratz applied, the University analyzed prospective applicants under a grid system. Gratz combined ACT/GPA scores placed her just outside the “presumptive admit” portion of the grid used to analyze her results. However, the University had a separate grid for analyzing potential applicants it considered “underrepresented minorities.” On this second grid, Gratz’s score placed her far above the minimum threshold of automatic admission.
On their own merit, Gratz’s achievements gave her a competitive chance of gaining admission. But if the University had considered Gratz as a favored minority applicant, she would have had a 100% chance of gaining acceptance. For Gratz, race was the difference between rejection and acceptance.
Two years after Jennifer Gratz was rejected from the University of Michigan undergraduate program, Barbara Grutter applied to the University Of Michigan School Of Law. Barbara Grutter had graduated from Michigan State University in 1978 with high honors and a 3.81 GPA. Even though she scored a 161 on the LSAT, Grutter postponed a Law School career to start a successful health care information firm.
In 1996, at age forty-three, Grutter returned to pursue her ambitions of attending law school. Despite a life-long record of achievement, Grutter was wait-listed and eventually denied admission to the University of Michigan Law School.
Like the undergraduate admissions process, the Law School used a grid system to evaluate potential candidates for admission. A white female applicant with Barbara Grutter’s scores had less than a 9% chance of admission on the grid. However, under the same system, a favored minority applicant with the same scores had a 100% chance of gaining admission. As with Gratz, Grutter’s race was ultimately the difference between automatic acceptance and automatic rejection.
In 1997, CIR filed a lawsuit on behalf of Jennifer Gratz against the University of Michigan’s undergraduate admission system, and a second lawsuit on behalf of Barbara Grutter against the University of Michigan Law School. Combined with CIR’s recent victory in Hopwood v. Texas, these challenges made it substantially more likely that the Supreme Court would take the case.
CIR argued that the University violated the Fourteenth Amendment’s promise of equal protection by discriminating against Gratz and Grutter. Neither institution could profer a compelling justification for the discrimination, nor could they argue that the system of racial preferences was narrowly tailored to avoid harming students like Gratz and Grutter.
In light of the ongoing lawsuits, the University of Michigan changes its admission system. The undergraduate school abandoned the grid system in favor of a points system. Under the new system, an application to the school could score a maximum of 150 points. The higher the number of points, the more likely an applicant would be admitted.
The method in which points were allotted made race a decisive factor in the admission process. If the University considered an applicant an underrepresented minority, the applicant was awarded an automatic twenty points, or one-fifth of the total points needed to guarantee admission. The University did not weigh any other factors or considerations as heavily as race. The resulting method meant that an applicant with extraordinary artistic talent could only be awarded a maximum of five points for his talent, while another applicant could receive twenty points by virtue of belonging to a certain racial group.
This mechanical method of assigning points based on outward characteristics alone, is a prime example of what Shelby Steele called “the disappearance of the black individual.” In his classic essay for Harper’s magazine, Steele lamented that institutions, like the University of Michigan, failed to treat African Americans as individuals with real accomplishments. These institutions, Steel argued, cared more for their own image than they did for helping individual African-Americans.
District Court Victories
CIR’s two cases were heard by different judges in the District Court. In Gratz, Judge Duggan ruled that the grid system under which Jennifer Gratz had been rejected was unconstitutional, but that the points system in place since then was a justified means of attaining a diverse student body.
In Grutter, Judge Bernard Friedman issued a more direct and clear cut victory for CIR and Barbara Grutter. Judge Friedman held, in accordance with Hopwood v. Texas, that diversity is not a compelling government justification for discrimination. The court accordingly struck down the Law School’s race-based admissions system.
The University of Michigan appealed both cases, and a divided en banc panel of the Sixth Circuit Court of Appeals reversed Grutter’s victory at the district court and held that the University was justified in using racial preferences to achieve diversity. The Sixth Circuit never issued a ruling in Gratz.
The Supreme Court
After the Sixth Circuit loss in Grutter, CIR petitioned the Supreme Court, asking them to hear both cases as they presented an urgent question of constitutional law. The Court agreed and handed down decisions in June of 2003.
Chief Justice Rehnquist, writing for the Court in Gratz, struck down the University of Michigan’s undergraduate admissions system. Justice Rehnquist reasoned that the points system, assigning points based on outward characteristics, treated applicants in a manner that prized their race over their individual accomplishments. The failure of the University to treat applicants as individuals constituted a violation of the Fourteenth Amendment.
In Grutter, however, Justice Sandra Day O’Connor upheld the Law School admissions system and reasoned that fostering diversity in higher education is a compelling government interest. Justice O’Connor argued that a distinction could be made between the mechanical racial preferences used in the undergraduate system and the racial preferences employed by the law school. Essentially doing away with the strict scrutiny analysis that racial classifications require, Justice O’Connor deferred to the law school to determine whether racial preferences are necessary. The Court did, however, limit the legality of racial preferences to a period of twenty-five years, when the government will no longer have a a compelling justification to foster diversity.
Justice Clarence Thomas, who dissented from the ruling, agreed that racial preferences would be unconstitutional in twenty-five years. However, he also argued that what is unconstitutional twenty-five years from now is also unconstitutional today. Either the Constitution forbids the use of racial discrimination or it does not.
While the combined cases of Gratz and Grutter failed to end the government’s use of racial preferences, it achieved the minor victory of placing limits on when and how the government may use such preferences.
Gratz and Grutter are not the end of the story. CIR’s client, Jennifer Gratz, was later able to end racial preferences at the University of Michigan by leading the effort to pass an amendment to the Michigan constitution that banned the use of racial preferences. When an activist group challenged the constitutionality of the amendment, CIR once again came to the aid of Jennifer Gratz. In Schuette v. Bamn, CIR successfully defended the amendment before the Supreme Court. Read more about that case here.
Furthermore, almost twelve years after the Supreme Court decided Gratz and Grutter, the issue is once again back before the Supreme Court in the case Fisher v. University of Texas. CIR has filed two amicus briefs before the Supreme Court in that case that urge the Supreme Court to apply the strict scrutiny that Justice O’Connor failed to apply in Grutter. In an initial opinion, Justice Kennedy agreed with CIR and ruled that even after Grutter courts may not punt on applying rigid constitutional analysis. After being remanded to the Fifth Circuit, that case is once again before the Supreme Court. Read more about CIR’s ongoing efforts to challenge racial preferences in Fisher here.
Case Status: Partial Win: The Supreme Court struck down the UM undergraduate admissions system but upheld the law school system.