SEVEN SECRETS TO SUCCESSFUL COMPLIANCE WITH GRUTTER

from Blend It, Don't End It: Mexican American Legal Defense and Educational Fund (MALDEF) in partnership with Americans for a Fair Chance, a project of the Leadership Conference on Civil Rights Education Fund, Equal Justice Society, Society of American Law Teachers

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A.        Individualized Review: Looking Beyond the Numbers

For undergraduate, graduate, and professional school admissions programs not governed by the Texas Ten Percent Plan, it is essential that all applications undergo individualized review.  The same recommendation applies to applicants to UT-Austin and Texas A&M that are not automatically eligible under the Ten Percent Plan.  Individualized review refers to a holistic assessment of the applicant’s entire file, as well as a holistic evaluation of the candidate.  An institution should consider all of the applicant’s qualities, including any “plus” factors that indicate the student would contribute to diversity, and judge those factors in totality.  A decision of whether to admit the applicant should be based on this complete evaluation. 

In Grutter the Court explained, “As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, nonmechanical way.”[1]  Accordingly, no single factor should dominate the admissions process, including race.  For example, an institution should not give an applicant’s race such undue weight that all other qualities of the applicant are subsumed under that single consideration.  In practical terms, this means that an applicant’s race should not automatically allow the applicant to gain admission, without considering other factors of that applicant or other applicants.  In addition, the size of the “plus factor” accorded for race should not be uniform, but should vary from applicant to applicant as schools also seriously consider a host of other plus factors like geographic diversity, socioeconomic background, athletic ability, special talents, and so forth.  Thus, while race may effectively be an influential factor in some individual admission decisions, constitutionally sound affirmative action policies do not operate as a two-track program where underrepresented minorities are automatically admitted based on race.[2] 

It is instructive to contrast Grutter (and Bakke) with the UTLS admissions policy of the early 1990s that struck down in Hopwood.[3]  The old admissions program at UTLS separated applicants into three categories based upon LSAT/UGPA index scores: presumptive admits, discretionary zone, and presumptive denials, and it had different cut-offs based on race and ethnicity.[4]  In contrast, while race was a substantial plus factor for a large number of applicants in the program upheld at the University of Michigan Law School, it was also true that the applicants admitted with the lowest UGPAs were frequently White.[5] 

Not only would UTLS’ prior policy fail on narrow tailoring grounds, it also would go against the guidance of the LSAC, which recommends, “Schools currently using the [presumptive admissions method] are encouraged to modify it because such methods may be using the LSAT score incorrectly.”[6] 

            Institutions must take measures to ensure their admissions programs are faithful to the narrow tailoring framework in Grutter, including “truly individualized consideration” and using race in a “flexible, nonmechanical way.”[7]  We recommend that one important step in this process is not giving standardized tests unwarranted weight in admissions and financial aid.  For example, professor Michael Olivas, an expert in higher education law, cautions:

The heavy reliance on test scores and the near-magical properties accorded them inflate the narrow and modest use to which any standardized scores should be put.  Accepted psychometric principles, testing-industry norms of good practice, and research on the efficacy of testing all suggest modest claims for test scores, whether standing alone or combined with other proxy measures.[8] 

The Law School Admission Council (LSAC), and other standardized test producers make similar cautionary statements.[9]

This suggestion is important on a practical level.  In terms of the mechanics of the admissions process, institutions practicing affirmative action are much more vulnerable to legal challenge if they make admission decisions almost entirely on the basis of test scores or index formulas that combine tests and grades.  In such a scenario, a court is more likely to find that the institution is not making a good faith effort at individualized review.  If test scores and/or index scores truly dominate the admissions process, a court would be more likely to find that institution’s use of affirmative action is not narrowly tailored, since race would then function as a substantial departure from “regular” admissions (i.e., race as the decisive factor).   Framed more positively, the lesson of Grutter is that there is a deep connection between the goal of treating all applicants fairly by individualized review, and the goal of admitting a class with racial and ethnic diversity. 

In addition to pragmatic concerns over making sure that affirmative action is narrowly tailored, ensuring that standardized tests are not given undue weight also helps to minimize the adverse impact such tests tend to have on students of color.  This is a point about which there is a solid consensus among the Texas Ten Percent Plan authors, [10]  MALDEF leaders,[11]  and psychologists.[12]  Disparate impact is a concern in part because racial and ethnic disparities on the SAT are larger than the gap in high school grades.  Nationally, it is equally difficult for White college-bound seniors to rank in the top ten percent of their class as it was for them to obtain 600+ scores on the SAT Math or Verbal sections.[13]  In contrast, for African Americans and Chicana/os, obtaining a 600+ score on either section of the SAT is twice as difficult as ranking in the top tenth of the class.[14]  Likewise, the students intervening in Grutter established that students of color are substantially disadvantaged on the LSAT even among law school applicants who earned equivalent grades in the same selective universities and in the same majors as Whites.[15] 

Standardized tests like the SAT and ACT also limit opportunities for low-income students to a greater extent than other admission criteria.[16]  For example, Crouse and Trusheim, in the most extensive scholarly critique of the SAT, conclude, “[E]very measure of socioeconomic background is more strongly correlated with SAT scores than with high school class rank.”[17]  More recently, the College Board studied a national sample of SAT test-takers and found that socioeconomic status correlated more strongly with SAT scores than did high school GPA or high school rank.[18]  While much of this is due to segregated high schools, the College Board authors also conceded that differences in grading standards between high schools could not adequately explain the greater association between SAT scores and socioeconomic status compared to high school grades.[19]

Less reliance on standardized testing also neutralizes the well-documented and persistent disparate impact these tests have against women,[20] and women of color in particular.[21]

Texas Education Code § 51.842, passed in 2001, was a positive step toward individualized review by limiting reliance on standardized tests at public graduate and professional level programs.[22]  Likewise, the Texas A&M Medical School dropped reliance on the MCAT for students who successfully complete required premed courses.[23]  However, admission data from the period just prior to Grutter suggests that law schools in Texas have further improvements to make to ensure that all applicants are given a good faith individualized assessment. We analyzed LSAT/UGPA grid data for the 2002 admissions cycle, paying careful attention to the cells with the highest applicant volume (i.e., most representative).  The following examples, involving differences of five points on the LSAT, may suggest that a significant number of applications are only given cursory review rather than the good faith comprehensive review now required by Grutter:

• At the SMU Dedman School of Law, among applicants with 3.25-3.49 UGPAs, those with 160-164 LSATs are offered admission 94.7% of the time, whereas applicants with 155-159 LSATs are offered admission 14.8% of the time.[24] 

• At Texas Tech, among those with 3.25-3.49 UGPAs, applicants with 150-154 LSAT scores are admitted 72.9% of the time, but applicants with the same UGPAs and 145-149 LSATs are admitted 11.9% of the time.[25] 

• At UTLS, among applicants with a 3.75+ UGPA, those with 160-164 on the LSAT have a 56.9% chance of admission but those with 155-159 LSAT scores have a 14.0% chance of admission.[26]  Among UTLS applicants with 3.50-3.74 UGPAs, those with LSAT scores of 165-169 have a 74.0% chance of admission, but those with 160-164 LSATs have a 32.7% chance of admission.[27] 

• At the University of Houston Law Center, applicants with 3.25-3.49 UGPAs and 155-159 LSATs are offered admission 67.2% of the time, but applicants with the same grades and 150-154 LSATs are admitted 13.7% of the time.[28] 

• At Baylor, among applicants with 3.75+ UGPAs, those with 155-159 LSATs are admitted 89.9% of the time, but those with equivalent grades and 150-154 LSATs are admitted 34.1% of the time.[29] 

B.        Articulate  a Diversity Admissions Policy Statement

In Grutter, the University of Michigan Law School was able to thoroughly document the origins and development of its Admissions Policy Statement, which laid out the rationale for enrolling a “critical mass” of underrepresented minority students.[30]  For example, in Grutter the Court describes Michigan’s policy as follows:

The policy aspires to "achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts."  The policy does not restrict the types of diversity contributions eligible for "substantial weight" in the admissions process, but instead recognizes "many possible bases for diversity admissions."  The policy does, however, reaffirm the Law School's longstanding commitment to "one particular type of diversity," that is, "racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers."  By enrolling a " 'critical mass' of [underrepresented] minority students," the Law School seeks to "ensur[e] their ability to make unique contributions to the character of the Law School."[31]

We recommend that each institution’s formal admissions policy statement describe the goals and objectives of the admissions policy and should be closely aligned with the overarching mission of the institution.[32]  The policy statement should thoughtfully articulate how diversity plays a part in the admissions process.  Specifically, the statement should explain how diversity furthers the educational goals of the institution and advances the mission of the school.  Some examples of the benefits of diversity include:

·         Helping students break down stereotypes by providing a range of experiences and viewpoints within a particular racial or ethnic group;

·         Promoting cross-cultural understanding and helping students develop interpersonal skills for a multiracial world;

·         Challenging students to consider multiple perspectives and to engage in higher-level thinking;

·         Preparing students with the human relations and analytic skills needed for a racially diverse workplace;

·         Training and educating a diverse group of leaders;

·         Contributing to more effective decision-making on issues affecting our multicultural society;

·         Creating a diverse group of civic and business leaders with legitimacy in the eyes of the public;

·         Overcoming the chilling effect of students of color encountering isolation, tokenism, and a hostile campus climate.

In Grutter, the Court announced that institutions of higher learning should be afforded a presumption of “good faith” regarding the selection of their student bodies unless there is a showing to the contrary.[33]  If the program at your institution is challenged, a well articulated diversity policy helps overcome allegations of bad faith by assisting a judge and other individuals in understanding the goals of the program.  In addition, a clearly articulated policy helps to harmonize and coordinate the admissions procedure for all admissions officers and the people reviewing applicant files. 

C.        Document the Need for and Benefits of Diversity

            As discussed throughout this report, in Grutter and Gratz the University of Michigan, as well as many civil rights and educational groups, provided the Court with ample empirical evidence of the educational benefits of diversity.  For example, a study of 1970-1996 alumni of the University of Michigan Law School found that minority graduates were equally successful in legal practice despite lower average LSAT/UGPA index scores, and that Michigan’s minority attorneys made greater civic service contributions, including time dedicated to pro bono cases and serving on the board of non-profit organizations.[34]  University of Michigan psychologist Patricia Gurin, a pivotal expert witness in Grutter and Gratz, also found, based on extensive research at Michigan and nationally:

Colleges that diversify their student bodies and institute policies that foster genuine interaction across race and ethnicity provide the first opportunity for many students to learn from peers with different cultures, values, and experiences.  Genuine interaction goes far beyond mere contact and includes learning about difference in background, experience, and perspectives, as well as getting to know one another individually in an intimate enough way to discern common goals and personal qualities. [35]

In addition, researchers with the Civil Rights Project at Harvard University surveyed law students at the University of Michigan and Harvard, and found that racial diversity had an impact on how students thought about legal issues in class, and that about 90% of students found racial diversity was a positive aspect of their law school experience.[36]  These examples were merely the tip of the iceberg.

An institution seeking diversity should document that it has made the judgment similar to that of the University of Michigan, and that it has a clear concept of the meaning of diversity and how diversity is essential to its educational mission.  It should expend the effort to understand what diversity is and how it improves the institution, and record what it has learned. 

The studies referenced throughout this report are a good starting point but are far from exhaustive.  Several leading American law firms just released a detailed manual entitled Preserving Diversity in Higher Education: A Manual on Admissions Policies and Procedures After the University of Michigan Decisions, which has a much more extensive collection of relevant educational research.[37] 

D.        Develop Broad Diversity Goals and Sound Admission Criteria

In Grutter, the Supreme Court held that setting goals for minority enrollment and making a “good faith effort” to reach those goals is distinguishable from a quota system.  The Court explained:

Properly understood, a "quota" is a program in which a certain fixed number or proportion of opportunities are "reserved exclusively for certain minority groups."… Quotas " 'impose a fixed number or percentage which must be attained, or which cannot be exceeded,' " and "insulate the individual from comparison with all other candidates for the available seats."  In contrast, "a permissible goal ... require[s] only a good-faith effort ... to come within a range demarcated by the goal itself," and permits consideration of race as a "plus" factor in any given case while still ensuring that each candidate "compete[s] with all other qualified applicants."[38]

  The goal of admitting a “critical mass” of minority students is aspirational rather than guaranteed.  In a quota system, the outcome is predetermined and admissions decisions are based on the desire to satisfy that outcome.  In a “critical mass” system, however, there is a desired outcome, but that outcome is not predetermined.  As a result, a school will not necessarily reach the desired outcome from year to year, and in some years a school may even exceed its targets. 

In Grutter the Court did not define “critical mass,” though it did state that it would grant universities some deference in this area.  Many institutions may wish to set their target goals for minority admissions based, in part, on the composition of the community from which they recruit (or hope to recruit) students.  For example, large state institutions like UT-Austin and Texas A&M overwhelmingly admit Texas residents.  Rice University, on the other hand enrolls about half of its freshmen class of 660 from outside Texas.[39]  At the same time, it is important that the racial composition of a state or region not be presented in such an inflexible manner as to be vulnerable to accusations that such figures serve as de facto quotas. 

Developing admissions criteria is an integral part of the admissions process, since the criteria assist in shaping the class of admitted students.  Along with grades and test scores, other factors that may play a part in admissions are personal statements, essays, activities, recommendations, and interviews.  In addition, certain characteristics may give an applicant a “plus,” including race, gender, socioeconomic background, geography, leadership qualities, athletic ability, unique talents, and how well the applicant has utilized the opportunities available at her high school or undergraduate institution. 

The Society of American Law Teachers (SALT), the nation’s largest membership organization of law professors, recently analyzed law school admissions and found, “Notwithstanding the claims in glossy law school catalogues that admissions is a ‘personalized,’ ‘holistic’ process, studies demonstrate that 70-80% of all admissions are determined strictly on the numbers.”[40]  SALT concludes that this overreliance on numerical indicators harms the legal profession by neglecting other vital criteria:

[L]aw schools ... fail to give appropriate consideration to other attributes and skills that are important to success in law school and, ultimately, in the delivery of legal services.  The LSAT does not measure motivation, perseverance, character, interpersonal skills, problem-solving skills, oral communication, empathy for clients, commitment to public service or the likelihood that the applicant will work with underserved communities.  Law Schools, by neglecting these important qualities, do a disservice to the legal profession and its clients, and they limit the legal profession’s ability to provide meaningful access to legal services to all segments of society.[41] 

In order for individualized review to be a realistic outcome, more than an inspirational policy statement is needed.  Formulating questions that will solicit important information will help an institution achieve its diversity goals. Since schools are evaluating the individual, it is important to know who the applicant is. Many schools discover more about the applicant by asking short essay questions.  The information provided in essays may reveal qualities and attributes that the school feels will contribute highly to the diversity of its student body.  

E.         Carefully Examine the Effects of Legacy Policies

We recommend that colleges and universities that favor the relatives of alumni carefully review whether such policies have a disparate impact on applicants from communities historically excluded from higher learning in Texas.  For example, legacy policies are one factor contributing to low diversity at Texas A&M both before and after Hopwood.  Recently the Houston Chronicle estimated that that in 2002 and 2003 about 350 freshmen were ultimately admitted to A&M because their family members had attended that institution.[42]  By comparison, A&M enrolled an average of 180 African Americans in 1998-2002 out of an average freshman class of about 6,400.[43]  Latina/os and African Americans combined were only 8.6% of the pool of 2002-2003 A&M legacy beneficiaries.[44] 

MALDEF shares University of Houston professor Michael A. Olivas’ concern that legacy policies too often correlate with family wealth and racial/ethnic background.[45]  For instance, since Texas A&M began decades ago essentially as a White, all-male military institution,[46] it is not surprising that its policy toward the children and siblings of A&M alumni largely benefited Whites.   We suspect legacies partly explains why Asian Pacific Americans are at a disadvantage relative to Whites applying to Texas A&M even with equivalent credentials, in contrast to UT-Austin, which does not employ legacy policies.[47]  

It was only in response to recent public criticism from politicians and civil rights groups, including MALDEF, the League of United Latin-American Citizens (LULAC), the Urban League, and the Texas Civil Rights Project, that Texas A&M president Robert Gates announced that legacy policies will be discontinued at the university.[48] 

F.         Periodically Review Affirmative Action Programs

and the Efficacy of Race-Neutral Alternatives

In accordance with Grutter, when race-conscious policies are no longer needed to further the interest of student diversity, the institution should stop considering race in the admissions process.[49]  Grutter requires that universities engage in “serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.”[50]   However, “Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative.”[51] 

In this report we presented our assessment of the efficacy of many race-neutral efforts.  For example, in Section II we found that the Texas Ten Percent Plan in combination with other race-neutral efforts, while contributing a great deal, nonetheless were not effective at promoting racial diversity at UT-Austin, and particularly at Texas A&M.   In Sections III and IV, we documented the troubling decline in diversity in legal and medical education in Texas, especially at flagship institutions like the UT Law School.

This “Blend It, Don’t End It” policy report, however, is far from an exhaustive analysis of the myriad race-neutral programs in Texas.  We applaud research efforts like that at UT-Austin to measure the racial and ethnic composition of each classroom in order to gauge whether race-conscious measures are necessary.[52] 

There are also a vast number of undergraduate, graduate, and professional programs that, for reasons of time and space, were not assessed in this report, but that nonetheless indicate that race-neutral efforts are inadequate.  For example, in the arts, sciences, humanities, and social sciences graduate school programs at UT-Austin, the applicant pool for the fall 2003 class included a paltry 6.2% Latina/os, African Americans, and American Indians combined.[53]

Grutter mandates that universities adopting race-conscious admissions programs periodically review their programs.  On the other hand, the Court’s language about periodic review indicates that Grutter did not impose a 25-year sunset clause on affirmative action in higher education.  As long as Grutter remains the law of the land, institutions of higher learning will continue to have a compelling interest in a racially and ethnically diverse student body.  Although the Court in Grutter was not specific about the frequency needed for periodic review, we recommend that it be conducted at least every few years.

In addition to evaluating race-neutral alternatives, there are other reasons an institution should undertake periodic review.  Because so many different factors play a part in an individualized review of an applicant, reevaluating an admissions program will allow an institution to reassess its diversity goals and to tailor its admissions program to meet those goals.  A school should seek to periodically reassess the different factors that will create a diverse student body, the criteria for admissions, and the different relative weights given to “plus” factors.  An institution should also review its target goals for admitting minority students at the school.  This type of periodic reevaluation will help an institution ensure that its diversity goals are advancing the educational mission of the school.

G.        Eliminate Other Artificial Barriers to Inclusion

In recent months the Center for Equal Opportunity, a conservative think tank, filed complaints with the U.S. Department of Education’s Office for Civil Rights (OCR) against Rice University, Texas Tech University, and threatened to do so against UT-Austin, all in an attempt to block the reintroduction of affirmative action.[54]  Given these scare tactics, we are obliged to remind private and public colleges and universities of their obligations under the U.S. Department of Education’s disparate impact regulations promulgated pursuant to Title VI of the 1964 Civil Rights Act.[55] 

Several federal courts recognize that Title VI disparate impact regulations can still be enforced via Section 1983[56] even after Alexander v. Sandoval,[57] and OCR can also enforce these regulations when a complaint prompts an OCR investigation.[58]  In Title VI disparate impact cases, once the plaintiff has demonstrated a cognizable disparate impact[59] and identified its causes, the defendant has the burden of demonstrating the “educational necessity” of the admissions practice at issue.[60] 

            The admissions program at UTLS that was struck down in Hopwood is telling example of how certain admission practices can have an unwarranted disparate impact on low-income and minority students.  Cheryl Hopwood’s 3.8 UGPA was downgraded, causing her to drop to the discretionary zone where she was eventually placed on the waitlist, because she graduated from California State University Sacramento and attended community college.[61]  This is an area of concern because, as MALDEF pointed out in Grutter, a high proportion of Latina/os attend less prestigious institutions or begin their higher education journey in community college.[62]  A study by the Pew Hispanic Center reports among the college age population (18-24), 44% of Latina/os attend community college, compared to less than 30% of Whites and African Americans.[63]

In Hopwood, UTLS professor Wellborn provided an expert report and testimony indicating that at UTLS “even though the LSDAS [Law School Data Assembly Service] treats all GPAs alike for purposes of calculating the [Texas index] score, file reviewers customarily take cognizance of . . . the mean LSAT score for the applicant’s college . . .”[64]  Wellborn also assured the court that “comparing the colleges’ mean LSAT scores is the best way of evaluating the various colleges and universities in terms of the caliber of their respective student bodies.”[65] 

Unfortunately, when the LSAT is used as a yardstick for evaluating the “caliber” of an undergraduate student body, schools that have a high proportion of Black, Latina/o, and low-income students tend to be downgraded and wealthy elite schools are boosted.[66]  Thus, Sturm and Guinier persuasively argue, “Cheryl Hopwood may well be the victim of a class bias in the admissions process that mirrors the bias confronting applicants of color.”[67]

A law school would have a difficult time meeting its burden of establishing the educational necessity of UGPA adjustments.  UTLS officials acknowledged that the LSAC did not adjust UGPAs in calculating LSAT/UGPA index scores on behalf of UTLS.[68]  More importantly, LSAC has repeatedly studied the issue and found that UGPA adjustments do not improve prediction of law school grades.[69] 

As this example illustrates, at times colleges and universities use criteria and procedures, often with little forethought, that negatively impact admission opportunities for students of color.  The more that the admissions office is cognizant of the effect such factors have on admissions, the more effectively it can take steps to counterbalance this adverse impact.  Therefore, an admissions office should rigorously evaluate all factors used in its admissions program and determine what effect they may have on minority applicants.  We recommend that institutions take care to avoid criteria that place an undue burden on students of color and applicants from disadvantaged backgrounds.