Sept. 24 (Bloomberg) -- A decade ago, the University of Michigan waged a successful U.S. Supreme Court fight to save affirmative action. Now Michigan is learning to live without it.
Three years after the court allowed race-based admissions, Michigan voters blocked them at state schools through a ballot initiative. The result is fewer black students crisscrossing the Diag, the wide space that cuts through the heart of the university’s Ann Arbor campus. Black enrollment is down about 30 percent at the undergraduate and law schools.
The constitutionality of that 2006 ballot initiative is now before the U.S. Supreme Court, which holds arguments next month. With even affirmative action supporters predicting the court will uphold the measure, a university that has long prided itself on its racial diversity may have to achieve what it can through less direct means.
“I don’t think anybody accepts the numbers,” Mark Bernstein, one of eight elected regents who govern the university, said at Cafe Zola, a half mile from campus. “We are, as a campus, as a university, committed to diversity, and we’ll just have to soldier on using less-effective tools.”
The Michigan dispute is one of the Supreme Court’s top cases for the nine-month term that starts next month. The justices are set to hear clashes over campaign finance, recess appointments, housing discrimination and legislative prayer. They may also take up a new case over President Barack Obama’s health-care law, on whether for-profit corporations can claim a religious exemption from the requirement that employer-provided insurance plans include contraceptive coverage.
Michigan was also the Supreme Court’s focus in cases over the university’s law school and undergraduate admissions policies in 2003. The court ruled that admissions officers could use race to foster campus diversity as long as they did so as part of a holistic review of an applicant’s file. The decision didn’t preclude states from barring racial preferences through their own laws.
In recent years, the effectiveness of alternatives to traditional affirmative action have come under increasing scrutiny from courts, policy makers and voters. Michigan is one of 10 states where race-conscious admissions are barred as a matter of law.
In most of those states, top universities have maintained their racial diversity, said Richard Kahlenberg, a senior fellow at the Washington-based Century Foundation. Some states have increased socioeconomic affirmative action, which Kahlenberg favors. Others base some admissions solely on class rank, giving slots to top students at predominantly minority high schools.
In Michigan, by contrast, minority enrollment dropped after the ballot initiative, Proposal 2, was enacted. In 2006, the last full year in which race could be directly considered in admissions, blacks accounted for 6.4 percent of the freshman class, a number that excludes foreign students. Last year, black enrollment was 4.6 percent. Hispanic enrollment fell from 5.3 percent in 2006 to 3.9 percent in 2012.
At Michigan State University in East Lansing, black enrollment was already falling when Proposal 2 kicked in. Blacks represented 10.5 percent of the entering class in 1999, 8.8 percent in 2006 and 6.2 percent in 2012. Preliminary numbers for 2013 show blacks constitute 7.5 percent of freshmen.
The University of Michigan Law School enrolled 25 black students, or 6.8 percent of its first-year class, in 2006. The number was 14 black students, or 3.9 percent, in 2008, and the school hasn’t topped 18 since then. Hispanic enrollment is about the same as it was in 2006.
Michigan Law School’s admissions director, Sarah Zearfoss, sighs when asked in her office what steps she has taken to bring in more black students in the aftermath of Proposal 2.
“So many things, so many things, and -- spoiler alert -- none of it really has helped,” Zearfoss said.
She pointed to a list of efforts to recruit more black applicants and persuade more admitted students to enroll. The school has enlisted black students, professors and alumni to help -- all to no avail.
Part of the problem is that virtually every accepted black student also has offers from a half-dozen or more other top-flight law schools, guaranteeing that Michigan will enroll only a fraction of them.
“These are all people who anyone would want to admit,” Zearfoss said. Unable to consider race, she said she can no longer bolster minority enrollment with “hidden gems” who escaped the attention of other schools.
Michigan Law School also considers family educational background, engaging in a form of socioeconomic affirmative action. One thing the school doesn’t do is directly weigh family wealth, a consideration that Kahlenberg says could make an impact because it is highly correlated with race.
“If you’re looking for a way that is really going to boost African-American and Latino enrollment, then wealth is an important factor to consider,” Kahlenberg said.
Michigan also has eschewed the percentage plans adopted by Texas, California and Florida, which guarantee university slots to students finishing near the top of their high school classes.
In its last nine-month term, the Supreme Court considered whether the University of Texas could supplement its “top 10 percent” rule with race-based admissions. The justices reached a compromise, telling a lower court to scrutinize the policy more closely.
Proposal 2 was spearheaded by Jennifer Gratz, whose reverse-discrimination lawsuit against Michigan became one of the two 2003 Supreme Court cases. Michigan voters approved Proposal 2, a constitutional amendment, 58 percent to 42 percent.
The day after the vote, University of Michigan President Mary Sue Coleman vowed to resist and delivered a defiant speech, telling a cheering crowd on the Diag that “we will fight for what we believe in.”
Gratz, who has been tussling with Michigan for 16 years, says the speech showed how far university officials would go to continue using racial preferences.
“Even if the Supreme Court ruled tomorrow that race preferences are unconstitutional and could not be used in college admissions at all, universities would still be trying to find ways around the law,” Gratz said.
Carl Cohen, a University of Michigan philosophy professor opposed to racial preferences, says the ban on them freed minority students from suspicion that they gained admissions by reason of race, rather than merit.
“When you don’t have preferences, the atmosphere is healthier,” said Cohen, whose Freedom of Information Act requests in the 1990s forced the university to reveal it considered race in admissions. “You just don’t hear any expressions of resentment that you did hear from time to time in the old days.”
Kevin Gaines, a Michigan professor who specializes in U.S. and African-American history, questioned that assessment, saying the fight against affirmative action “poisoned” the climate on campus.
Gaines said he noticed the impact of Proposal 2 in his own classrooms. Shortly after the initiative passed, his 15-student freshman seminar on the Civil Rights movement had only two black students out of 15 in the class -- not enough to sustain a productive dialogue, he said.
Such low numbers leave black students feeling as though they have to serve as representatives of their race, he said. “You really need a group of five or even a half-dozen African-American students,” Gaines said.
Proposal 2 bars preferences the basis of gender or race in public education, contracting and employment. The university admissions aspect of the law is the only part that is before the Supreme Court.
A federal appeals court, voting 8-7, said the measure put racial minorities at a political disadvantage compared with other groups. The lower court pointed to decades-old Supreme Court decisions barring government actions that restructure the political process along racial lines.
The Supreme Court has grown more skeptical of affirmative action since upholding it in 2003. That’s largely because of Justice Sandra Day O’Connor’s 2006 retirement and the appointment of Justice Samuel Alito to fill her seat.
Bernstein, a lawyer and a former member of the Michigan Civil Rights Commission, says he expects the court will uphold the ballot initiative.
“I’m not very optimistic,” he said. “The writing is on the wall there.”
The case is Schuette v. Coalition to Defend, 12-682.
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