SOME OBSERVATIONS ABOUT GRUTTER
Dennis J. Shields
Associate Dean for Admissions & Financial Aid
Duke University School of Law

You can imagine that after being named as a defendant in Grutter, one of the most important civil rights cases since Brown v. Board of Education in 1954, I awaited the Supreme Court's decision with much anticipation. As the dean of admissions at the University of Michigan Law School from 1991 through 1997, and as a member of the committee that drafted and implemented the school's admission policy that was challenged in Grutter, my interest in case was more than that of a casual observer. Often prior to the Court's ruling, my thoughts ranged from concerns about whether the Court truly understood the dynamics of the law school admission process - notwithstanding the very substantial efforts on the part of our attorneys to explain in great detail how the process works - to pondering what might happen if the Court decided to bar affirmative action in admission processes. After listening to the oral arguments in Grutter, I became cautiously optimistic the Court would find constitutional our use of race as an affirmative tool in admission decision-making.

It is now just over two months since the Supreme Court decided the Grutter and Gratz cases. It is gratifying to have been vindicated by the majority of the Court. I am pleased the Court appreciated the difficulty and complexity that confronts graduate and professional schools, as well as selective undergraduate institutions, as admissions decisions are made. This is clear because Justice O’Connor’s majority opinion saw past the more extreme claims by the plaintiff, her supporters and the more rabid anti-affirmative action commentators, and recognized the special role that higher education plays in our society, and that because of their special status, our academic institutions are due some deference in making educational judgments, including admission decisions. The Court recognized that affirmative action in the educational context was a policy of inclusion and not exclusion, as the plaintiffs argued in the case.

For the record, affirmative action in admissions affects a relatively small number of institutions. The majority of our colleges and universities are not selective in that they admit nearly anyone who meets some minimum criteria. On the other hand, affirmative action potentially impacts nearly every graduate and professional school because, by their very nature, admission is selective for these programs. The hullabaloo by the political right and organizations like the Center for Individual Rights distorts the perception of the impact that race conscious admission decisions have on any given white or minority candidate for admission at these selective programs and institutions.

Selective programs receive applications from many more candidates than they can accommodate and thus, must turn away many qualified candidates. Many of the most vociferous opponents of affirmative action are none too subtle about attacking the qualifications of minority candidates admitted under race conscious admissions regimes. They want the public to believe the minority students that have been admitted to selective institutions do not have the ability to achieve in the rarified academic programs at these schools and/or are less “deserving” of admission than white candidates that are denied admission. As to the former, nothing could be further from the truth. My own experience at the law schools of both the University of Michigan and Duke University belies this contention. Most everyone who applies to these schools is qualified in the sense that they are capable of completing the degree programs and succeeding in the legal profession. The “average” candidate for admission at selective law schools presents LSAT scores and academic credentials, when compared with the national pool of candidates, would place them somewhere in the top quarter of that pool.

Many applicants for admission believe that admission is a type of direct competition. They assert that by possessing a certain standardized test score and academic average they “deserve” admission ahead of other candidates with lesser scores or academic averages. This sense of entitlement is an unnerving characteristic of many candidates for admission. This concept of the admission process does not comport with the reality. We learned, at Michigan, that LSAT and GPA are useful but very imprecise predictors of academic performance. It is particularly difficult to predict academic performance when the candidates LSAT scores and grades are very similar. Thus, even if it is assumed predicted academic performance ought to be the sine quo non of admissions, we have no criteria that assure us of reliability of prediction when we are deciding among a large group of candidates with very similar LSAT scores and GPAs.

We knew from experience at Michigan that we could be confident that everyone we admitted could and likely would be successful in performing to the high standards of the law school. This was confirmed by later studies of the careers of Michigan Law School graduates. A study of the professional careers of the Michigan law school’s alumni found the minority alumni to be every bit as successful by any measure as their white counterparts. This would not be the case if they had not been able and qualified at the point of their admission to Michigan. The evidence that this is true across the board at selective undergraduate institutions is provided by Derek Bok and William Bowen in their book The Shape of the River: The Long Term Consequences of Considering Race in College and University Admissions. This groundbreaking book investigated the experiences of minority alumni at a broad range of selective institutions over several decades.

Colleges and universities have never conceived of admission decision making solely as a competitive, and supposedly, meritocratic, selection model. Grades and test scores are never the end of the inquiry in judging individual merit. Grutter makes plain institutions of higher education have a much broader societal role than simply parceling out opportunity to the narrowly defined “entitled”. It is entirely possible a school could decide to use such a model but Grutter says that such a choice is an institutional judgment.

The Court made clear in Grutter that diversity is a compelling interest. In no uncertain terms, the Court clarified the fractured opinion in Bakke and established solid walls of protection within which academic institutions are permitted to exercise sound educational judgments. Just as significant as the finding of this deference is powerful protection for universities because, as a result, good faith is presumed unless there is clear evidence to the contrary. Due to this presumption of good faith, plaintiffs who attack race conscious admissions at colleges and universities have a heavy burden to overcome to be successful in their efforts to invalidate admissions policies and procedures.

The deference the Court grants higher education was bolstered by the circumstances presented in Grutter. The facts in Grutter gave the Court a unique opportunity to look inside the policy making process at a selective institution. What was discovered during the course of litigation was that the Michigan law school took very seriously its obligation to be thoughtful and thorough in developing its admissions policies and procedures. We spent most of an academic year constructing the policy. Faculty, administrators and students had input. We first looked to the school’s mission for a basis for the tenet that diversity was an important part of the educational results the school aspired to achieve. The full resources of the school were brought to bear on the drafting of the policy. The committee reviewed several hundred admission files to inform their judgments about the type of information available for consideration in making admissions decisions. Studies of the academic performance of previously matriculated students were done to test the predictive value of standardized test scores and undergraduate academic averages. The process by which the policy was conceived and implemented was revealed at trial and available to the Supreme Court in their deliberations. I believe it heartened the majority to see demonstrated by Michigan, a real commitment to developing and implementing a thoughtful and comprehensive admission policy. Some may disagree with us about the importance of diversity, but it is undeniable the law school did all that could be expected of an institution of Michigan’s stature in developing its educational policies with regard to admissions. There is a lesson here for all of higher education. In developing admission policies, be true to your mission and be clear about how and why diversity, or any other element of a program, is important to your institution’s educational mission and be clear about the role it plays in making admissions decisions. An outcome of such processes at a variety of institutions will show that diversity need not carry the same weight at all institutions.

Just as important as the consideration the Court’s majority gave to the drafting of the policy, was their view that the law school had adhered to the policy in its implementation. The policy is direct about the importance of racial diversity. It is just as clear that racial diversity was not the only type of diversity it hoped to encourage through its admissions policies. The application process at the Law School allows each candidate to explain how they might add to the diversity of the class. And there was clear evidence that we were moved to admit many candidates, in part, because they added elements of diversity unrelated to race. The plaintiffs attempted to make their case by dwelling on the influence race had on a relatively small number of positive decisions with regard to some minority candidates. The Court, quite reasonably, looked at the larger picture and found that race was not the predominant factor in making admission decisions at the law school. Critically, the plaintiff’s own expert admitted as much.

The Court found additional support for affirmative action expressed in the numerous amicus briefs filed by parties outside the education community. The briefs, filed by many advocates of diversity, including leaders of business and the military, gave voice to the concerns of those who seek to employ the graduates of higher education. In their arguments, these leaders explained why it is important to them that they have available to them both a diverse pool of candidates and a pool of candidates prepared to work in a diverse work force.

I am struck by how many of the people who object to affirmative action in admissions are so uninformed about the complexity of managing admission decisions. Few have ever read a single admissions application, let alone the many thousands of applications that admissions officials like my colleagues and I must read and critically assess each year. Nor do they consider the pressure that converges on the process from many disparate constituencies. They see the issue through a very myopic lens, focused solely on a single issue. My view is based in pragmatism, built on more than twenty years experience in admissions.

There are many difficult choices that must be made by selective institutions and programs. The schools must develop and continually review admissions policies and procedures. And each year they must make difficult judgments, in light of these polices, on whom to admit to their programs. Institutions work hard and in good faith in making these judgments. I know this from my experience in admissions at three different law schools. Each school had or has a slightly different mission and is answerable to different constituencies. Every year, schools must make calculated judgments about the candidates that will make up their classes. The question is never who is the “most deserving” of the candidates. Rather, what mix of individuals is most likely to maximize the educational results the school seeks, however articulated?

Opponents of affirmative action make much of the plain language of Title VI and the Fourteenth Amendment. The text of each bars the state from using race in meting out state benefits. But the opponents are being disingenuous in hewing to this narrow and a-historical interpretation of the two provisions. Both provisions came about primarily to protect minorities (most often African Americans) from the unsavory attempts of state actors to deprive them of the rights and benefits the Constitution grants to everyone. Affirmative action is meant to provide some opportunity for inclusion in the fullness of American life to historically disadvantaged people of color.

There are many serious concerns that go begging for attention in America today. Nowhere is this truer than in higher education. A few examples of important issues that need the attention of higher education include: assuring that our students receive the education for which they come to our campuses; working harder to assure access to higher education for students from less-advantaged backgrounds; and, addressing the rising cost of college attendance which puts college out of reach for many competent would-be students. Affirmative action is not a problem, but a useful tool in higher education’s quest to meet one of our society’s urgent needs.

September 5, 2003