MICHIGAN'S MINORITY POINT SYSTEM “COMPENSATED” MINORITY STUDENTS FOR INFERIOR PUBLIC EDUCATION
Professor Leonard M. Baynes
St. John’s University School of Law

In its two recent rulings in the Michigan affirmative action admissions cases, the U.S. Supreme Court found that diversity is a compelling governmental interest satisfying the strict scrutiny test. Prior to these rulings, Justice Lewis Powell’s plurality opinion in Bakke provided wobbly support for diversity’s efficacy. Writing for a 5-4 majority in Grutter v. Bollinger, Justice Sandra Day O’Connor provided a sweeping analysis proclaiming the benefits of racial diversity to education, business, and society. Moving beyond her previous flinty skepticism concerning affirmative action programs, Justice O’Connor refrained from answering whether Justice Powell’s plurality opinion in Bakke was the narrowest holding, making it the opinion of the Court. Instead, without much support, she boldly enunciated that diversity is a compelling governmental interest.

Unlike any previous Supreme Court affirmative action opinion, Justice O’Connor described the beneficiaries of the Michigan affirmative action program as “qualified.” In fact, those students scored better than seventy percent of all test takers. Remarkably, she also addressed the irony of the lawsuits: high GPAs and LSATs provide no guarantee of admission. In fact, Justice O’Connor acknowledged that Michigan admitted white students with lower GPAs or LSATs than those of the students of color it rejected.

In Gratz v. Bollinger, Chief Justice Rehnquist, writing for a 6-3 majority, found that Michigan’s undergraduate affirmative action program failed strict scrutiny review. The Court found Michigan’s undergraduate policy, which automatically awarded twenty points to applicants of color, was not narrowly tailored. The two opinions, read together, provide a roadmap for universities to confidently pursue race conscious admissions. As such, universities cannot use quotas, cannot provide points automatically for minority status, and cannot perform racially segregated reviews of the applicants by separate review committees. Instead, universities can make individualized determinations of applicants for admissions, considering a variety factors including the race of the applicant.

Justice O’Connor’s opinion was more expansive than expected. Importantly, she affirms diversity as a compelling government interest. And her description of the minority students as qualified has made Justice O’Connor’s analysis more encompassing of the minority perspective. But neither Justice O’Connor nor the rest of the Supreme Court deserve a standing ovation for the Grutter decision because they missed the point in Gratz. Universities should be free to experiment with a variety of procedures to implement affirmative action programs. Relying solely on individualized determinations to implement affirmative action programs can cause several problems. First, an individualized determination is a standardless process, which can lead to arbitrary results. Second, universities will incur extra costs by hiring additional staff to make these individualized judgments. Budgetary constraints may discourage some universities from implementing these programs. Third, as Justice Ruth Bader Ginsburg pointed out in her dissent in Gratz, individualized determinations may lead to covert behaviors in favor of minority applicants. Conversely, and unrecognized by Justice Ginsburg, individualized determinations may also lead to minority disadvantage. The university administrators may perform a superficial individualized review of minority applicants and, supposedly in the name of affirmative action, admit only those applicants who may have been admitted anyway.

The Supreme Court failed to recognize (or consider) that the American educational system discriminates against children of color who receive separate and unequal educations and that society- imposed stereotypes deleteriously affect high-performing minorities’ performance on standardized tests. Michigan’s affirmative action programs (and others like them), by granting “specific points” to minority applicants, should be constitutional because they provide a fixed standard for all applicants of color. Moreover, these programs “compensate” African American and Latino(a) students for the generally inferior educations that American society provides them and for externally imposed stereotypes that inure to the detriment of high ability minority students.

Despite the Supreme Court’s decision in Brown v. Board of Education outlawing “separate but equal” public schools, many African American and Latino(a) children still attend segregated schools and receive inferior educations. Rev. Jesse Jackson, Sr. recently highlighted this disparity when he elicited reciprocal visits between and among students from a suburban Chicago school and a nearby inner-city urban school. From the visits, each group of students learned that the urban schools were dilapidated, and the suburban schools were not only pristine, but offered their students country club-like amenities. Because educational segregation still exists, the students (and their parents) were blind to the inequalities.

Educational inequality stems from housing segregation, which causes funding disparities between affluent white suburban and poor minority urban schools. In their path-breaking book American Apartheid, Douglas Massey and Nancy Denton examine how many African Americans and Latinos(as) live in “hyper-segregated” neighborhoods with a low probability of encountering whites. This hyper-segregation is caused by income disparities between people of color and whites, exclusionary zoning practices that tend to limit the quantity of affordable housing in the suburbs, blatant housing discrimination against racial minorities, and “white flight” from integrated communities.

The U.S. Supreme Court has found educational funding disparities constitutional and has been reluctant to authorize transportation of students to achieve integration between affluent white suburbs and lower-income minority urban areas unless discriminatory intent can be proved. Establishing such intent is next-to-impossible because modern society distains racial intolerance. Therefore, most rational individuals will not admit such intolerance even to their closest friends. Moreover, the necessity of proving intent fails to proscribe other actions-unconscious racism and pure ambivalence --that may have racially discriminatory outcomes, but as such are not actionable.

Even if urban students of color are not intentionally excluded from suburban schools, they attend racially segregated urban schools, which are inadequately funded. Nationwide, seventy percent of African American children attend public schools with primarily minority populations. In New York City, students of color comprise eighty-four percent of the public school enrollment, students with limited English proficiency comprise sixteen percent of the public school enrollment, students who are recent immigrants comprise nine percent of the public school enrollment, students receiving welfare payments comprise forty percent of the public school enrollment, and students participating in the free school lunch program comprise seventy-three percent of the grade school enrollment. The urban schools often lack sufficient textbooks and computer terminals. The school buildings are dilapidated and dirty with crumbling infrastructure. Uncertified and inexperienced teachers are disproportionately assigned to public schools with the most at-risk students, placing their education further at risk. And poor results follow: only sixty percent of New York City high school students receive a diploma, thirty percent drop out of school, and ten percent receive GEDs.

In Dismantling Desegregation, The Quiet Reversal of Brown v. Board of Education, Gary Orfield notes that suburban public schools offer three times more high ability classes than low ability classes. In contrast, poor urban schools offer an equal proportion of high ability and low ability courses. So a high performing student of color attending a poor urban school is deprived of the opportunity to take as many high ability courses as her white suburban counterpart. Regardless how hard the urban student works, she will cover less advanced material than her white suburban counterpart. As a consequence, when it comes time for the minority student to take the all-important SAT, she will often (and sometimes unknowingly) be less prepared, through no fault of her own, than her white suburban neighbor.

Most white students attend schools that are predominantly white. Poor white children are not hyper-segregated and, as a consequence, are more likely to attend middle class public schools that have sufficient funding and programs.

The academic performance of African American and Latino(a) students who attended high performing suburban schools may be deleteriously affected by externally imposed stereotypes. In an article entitled Thin Ice, “Stereotype Threat” and Black College Students, Professor Claude M. Steele has said that as a result of discrimination many African American and Latino(a) college students face what he calls the “stereotype threat, which is the threat of being viewed through the lens of a negative stereotype, or the fear of doing something that would inadvertently confirm that stereotype.” As a result of this situation, Professor Steele found that minority students sometimes “choke” on tests described as measuring their abilities, but perform as well as white students on other tests not so described. Professor Steele observed that the “stereotype threat” was externally imposed on the minority students by society that still tells African Americans and Latinos(as) that they are inferior.

At St. John’s I recently observed how an African American student was externally confronted by this “stereotype threat.” While walking through the law school cafeteria, I observed (and overheard) three students - two white and one black - talking about their post-graduation jobs. The black student mentioned that he was going to work for a very prominent local district attorney’s office. Despite the fact that the black student recently won a national trial competition heralded by the Law School, the white male student told the black student that he only received the job because of affirmative action. The black male student’s face became contorted in anger. He had just been told by one of his peers that he wasn’t qualified, despite his obvious qualifications. In my experience, these types of incidents are not random or necessarily a commentary on St. John’s environment. These are experiences that African American and Latino(a) students confront on a regular basis wherever they go to school, and according to Professor Steele, these experiences are the reasons why these minority students might have weaker academic performance than their white counterparts. Their weaker academic performance is not the result of weaker academic identity and ability, but, as a result of all these negative experiences, they distrust the way the system evaluates them, which negatively affects their performance .

Michigan’s undergraduate affirmative action program, allocating up-to-twenty points to minority students or students who have attended predominately minority high schools, was designed to redress this educational disparity. Michigan’s undergraduate affirmative action program had a 150-point system in which a maximum of 110 points was awarded for academics. Of these 110 points, up-to-eighty points were awarded for grades and up-to-twelve points were awarded for standardized tests. Michigan added or subtracted up-to-ten points based on the rigor of the applicant’s high school and added or subtracted up-to-eight points based on the rigor of the applicant’s curriculum.

It seems obvious that the automatic twenty points provided to applicants of color was designed to “compensate” for the eighteen points that the University deducted from the student’s overall point total for attending less rigorous high schools with less rigorous curricula. In addition, the additional points may have been designed to compensate those minority students who attended high performing schools, but whose academic achievement was compromised by “stereotype threat” as outlined by Professor Steele.

Too many minority students attend inferior public schools and many others face externally imposed questions about their abilities, i.e., “the stereotype threat.” Until our public school system provides an equal opportunity for a superior education to all our students and until we eliminate the negative stereotypes that confront people of color, affirmative action programs like Michigan’s compensate minority undergraduate students for these educational disparities. Michigan’s system also provided a uniform standard, preventing university administrators from going through the motions of an individualized determination when actually admitting students who would have been admitted anyway. Consequently, the Supreme Court in Gratz should have found Michigan’s undergraduate affirmative action program constitutional.

September 5, 2003