A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge
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A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge
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Overview
To the plaintiffs and the feisty public-interest law firm that backed them, the suits were a long overdue assault on reverse discrimination. The Constitution, strictly construed, was color-blind. Discrimination under any guise was not only illegal, it was the wrong way to set history right in a nation that had been troubled and divided by the uses and misuses of race for more than two hundred years.
To the University of Michigan, and to other top institutions striving to expand opportunity and create diverse, representative student bodies, it looked as if most of what had been put in place since the 1978 Bakke v. University of California decision was about to be undone. Black and Hispanic students were in danger of being once again largely shut out of the most important avenue of advancement in America, an elite education. To some, it appeared likely that racial integration was about to suffer their worst setback since the start of the civil rights movement.
In A Black and White Case, veteran Supreme Court reporter Greg Stohr portrays the individual dramas and exposes the human passions that colored and propelled this momentous legal struggle. His fascinating account takes us deep inside America’s court system, where logic collides with emotion, and common sense must contend with the majesty and sometimes the seeming perversity of the law. He follows the trail from Michigan to Washington, DC, revealing how lawyers argued and strategized, how lower-court judges fought behind the scenes for control of the cases, and why the White House filed a brief in support of the white students, in opposition to a chorus of retired generals and admirals worried that the military academies would no longer reflect the face of America.
Finally, Stohr details the fallout from the Supreme Court's controversial 2003 ruling that both upheld affirmative action and upended some of the methods that had been used to effect it. And he shows how colleges and universities are reshaping their affirmative action policies—an evolution closely watched by lower courts, employers, civil rights lawyers, legislators, regulators, and the public.
A Black and White Case brings alive and brilliantly explains one of the most important Supreme Court decisions on the fundamental and divisive subject of race relations in America.
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A Black and White Case
How Affirmative Action Survived Its Greatest Legal ChallengeBy Greg Stohr
Bloomberg Press
Copyright © 2004 Bloomberg L.P.All right reserved.
ISBN: 1-57660-170-6
Chapter One
A Tale of Two Professors
Carl Cohen had the smoking gun. The document he held proved that the University of Michigan used different admissions standards for white and black applicants.
Amid the stacked books and scattered piles of paper in his home study, the longtime Michigan philosophy professor could hardly contain himself. Even on routine days, the wiry, gray-haired Cohen was easily excitable, his arms and hands seemingly in constant motion, his head prone to bobbing when he had a point to make. Today was no routine day. After months of politely but doggedly pressing the university to explain how race factored into its admissions decisions, Cohen finally had irrefutable proof that the university relied on massive racial preferences. The professor's blue eyes darted back and forth across the page as he double- and triple-checked to make sure he was reading the material correctly.
The document, titled "College of Literature, Science, and the Arts/Guidelines for All Terms of 1996," instructed admissions counselors and clerks on the proper handling of applications for the coming fall's entering class. The key page was a grid of ninety boxes that represented variouscombinations of high school grade point averages and standardized test scores. Each box, known as a "cell," gave coded instructions to admissions office staffers. Applicants in the upper right-hand corner-students with grade point averages near 4.0 and ultra-high SAT or ACT scores-were automatic admits. Those in the lower left, the worst performers, were to be rejected. In between were various shades of gray: applications that would get a closer look by an admissions counselor or would be held pending fall semester grades or some other piece of additional information.
What struck Cohen was that the instructions in the cells were different depending on the race of the applicant. According to the grid, a white or Asian American student with a combined SAT score from 1010 to 1080 and a GPA from 3.2 to 3.3 was to be rejected. An "underrepresented minority" with the same numbers got an acceptance letter. Likewise, for applicants who combined low 850-920 SATs with perfect 4.0 GPAs, whites were rejected but minorities were either accepted or deferred. In cell after cell, throughout the middle band of the grid, blacks had a better chance of admissions than whites with identical grades and scores. For Cohen, the document was confirmation of his worst fears.
Cohen was no right-winger. Since joining the Michigan faculty in the 1950s, he had rankled conservatives at least as often as liberals. In the 1950s, Michigan's "Red Squad," an arm of the state police that investigated suspected communists, opened a file on the twenty-four-year-old professor after learning about his enthusiastic classroom presentations of Marxism. Later, Cohen defended the rights of high school boys to wear long hair in class. He was critical of the Vietnam War. And in 1978 Cohen, a Brooklyn-born Jew, defended the rights of Nazis to march through the streets of Skokie, Illinois. Along the way Cohen served as the head of the local chapter of the ACLU and as a steadfast supporter of the NAACP Legal Defense and Educational Fund. At bottom, he was a feisty civil libertarian who relished a good debate and the chance to defend an unpopular cause.
Cohen broke most sharply with his liberal friends on the question of race-or, as he saw it, racial preferences. Cohen was a passionate advocate for blacks and other racial minorities so long as the issue was preventing discrimination against them. Once the question shifted toward giving special advantages to minorities, Cohen disagreed. The aim, as he saw it, was ending discrimination. That goal was the same regardless of the target of the discrimination. Cohen believed that systematic bias against whites was as foreign to the American promise of equal opportunity as discrimination against blacks and Hispanics.
Cohen had been reading, writing, and speaking about questions of race in university admissions as far back as 1973, when as a member of the national board of the ACLU he unsuccessfully urged his colleagues to support a rejected white applicant who was suing the University of Washington Law School. It was not until 1995, though, that Cohen thought to investigate what was happening at Michigan. That was when he read an article in the Journal of Blacks in Higher Education detailing the marked disparity in admissions rates for blacks and whites at some of the most selective U.S. colleges. Cohen wondered what was happening at Michigan, one of the most selective public universities in the country. If the university he had called home for forty years was discriminating on the basis of race, Cohen wanted to know about it.
Finding out didn't prove to be easy. Cohen had first sought out colleagues who were involved in the admissions process and asked them what the school's policies were. Each told him the answer was confidential. Frustrated, Cohen decided to invoke the Michigan Freedom of Information Act, known as FOIA. That law, like similar statutes in other states and at the federal level, gives private citizens broad access to government documents. As a state-run institution, the University of Michigan was subject to FOIA. Cohen crafted a series of letters, requesting documents from the law, medical, and undergraduate schools. He asked for information explaining the admissions policies for applicants of different races. He also wanted any data the university had on admissions rates by race.
At first, the FOIA process proved no more fruitful than the informal approach. Cohen was disappointed by the first package of material he received from the university's chief FOIA officer, Lewis Morrissey. The envelope contained only summary information breaking down the applicant pools and entering classes by race; it included little to indicate whether different criteria were being used depending on the race of the applicant. Cohen fired off another letter, six pages long, painstakingly detailing the types of information he was seeking and including sample documents compiled by other universities. He met with Morrissey and his assistant to discuss the new letter point-by-point. At the end, Morrissey said he understood what the professor wanted and asked Cohen for more time. Cohen readily agreed.
Now, on a cold winter evening, Cohen's patience and persistence were starting to pay off. The mail had arrived late in the day, as it always did on the quiet, woodsy street where Cohen lived with his two children, just a ten-minute walk from campus. He saw the envelope from the university right away, plopped himself in front of his desk, and eagerly began digging through the documents Morrissey had sent. When he got to the grid, Cohen caught his breath in disbelief.
The packet also included a document that showed admissions data for the fall 1994 undergraduate entering class. It indicated, not surprisingly in light of the instructions that Cohen now knew admissions clerks had been given, that minorities with various combinations of grades and test scores had been admitted at a much higher rate than white applicants with similar numbers.
Morrissey had also sent a description of the admissions criteria for the university's combined pre-med and medical school program. Again, minority candidates were subject to more lenient admissions standards than their white counterparts. Later, Morrissey would send additional information indicating the use of racial preferences at Michigan Law School as well.
Cohen pored over the documents into the night, occasionally pulling out his calculator to figure out admissions rates for particular types of candidates. By the time he went to bed, Cohen knew what his next step would be. He would put his findings into a report. He would write the university's regents and outgoing president Jim Duderstadt and ask whether they could possibly support such policies. He would spread the word that Michigan was engaging in blatant race discrimination.
* * *
While Cohen despaired about the state of his university's admissions, an old colleague 800 miles away in New Hampshire contemplated a possible future at Michigan. Lee Bollinger had been Dartmouth College's provost for only two years, but he already had higher aspirations. With Duderstadt planning to step down as Michigan's president, the handsome, charming Bollinger was envisioning himself in the job.
Unlike Cohen, Bollinger already was well-versed in Michigan's affirmative action policies-or at least the ones at Michigan Law School. Bollinger had served as dean of the school from 1987 to 1994 and engineered a comprehensive rewrite of its admissions policies, in part to protect its affirmative action efforts from a legal attack.
As a boy, Bollinger hadn't had much occasion to think about race. The oldest of six children, he was born in Santa Rosa, California, a predominantly white city in the heart of wine country, where his father was in the newspaper business. When Bollinger was young, the family moved to Baker, Oregon, a picturesque town in the Blue Mountains that once served as a supply center for gold miners. His father bought a stake in the local paper, the Democrat-Herald, and became its editor and publisher. Like Santa Rosa, Baker had only a handful of minorities.
Newspapering was a family business for the Bollingers. Lee held down a variety of jobs at the paper, from janitor to film developer. He learned to love journalism, admiring the way it could mingle the spirit of public responsibility with a fierce sense of independence, even as he realized that it wasn't his long-term calling. He became the first in his extended family to attend college when he enrolled at the University of Oregon. He dabbled in student government, but soon realized that his heart was in academics, and in 1968 he graduated Phi Beta Kappa. Bollinger went on to attend Columbia Law School in New York, where he began to develop an expertise in the free-speech clause of the U.S. Constitution's First Amendment. He performed so well that he landed a prized position as a clerk for a federal appellate judge and then for Chief Justice Warren Burger on the Supreme Court.
Bollinger decided he wanted to teach law, rather than practice it, and his Supreme Court clerkship made him an attractive candidate to top universities. He settled on Michigan Law School, whose recruitment efforts had included a dinner with fellow First Amendment scholar Carl Cohen.
Bollinger arrived in Ann Arbor having spent his entire life surrounded by other white people-and mostly other white men, at that. Yet he had come to believe that his education would have been a richer experience with a more diverse set of classmates. His wife, fellow Oregon graduate Jean Magnano, was an important influence, offering a distinctly female perspective on certain issues. Lee saw how Jean experienced the sting of gender discrimination and felt pressure to go into traditional female occupations, such as nursing or teaching. Jean also told him of her frustrations with her Catholic Church and its refusal to allow women into its hierarchy. Bollinger's teaching experience reinforced his views on the benefits of diversity. Female students, Bollinger saw, brought a special element to First Amendment debates over pornography. The growing number of African American students had a similar impact in discussions about hate speech.
In 1987, fourteen years after joining the faculty, Bollinger was named dean of Michigan Law School. He soon began familiarizing himself with the nuts and bolts of the admissions process. Bollinger discovered that decisions on applications were almost entirely in the hands of one man, law school admissions director Allan Stillwagon. Bollinger thought the faculty needed to be more involved in the process, working with the admissions office to ensure the best possible mix of students for their classrooms. Bollinger also had concerns about the legality of the law school's admissions policies. He was troubled that, by all appearances, no one had reviewed the system to determine whether it complied with the decade-old Bakke decision, or at least with Justice Powell's opinion in Bakke. More broadly, Bollinger wanted a comprehensive review of the law school's "special admissions program," which accounted for most of its minority students.
In the fall of 1991, Bollinger decided to appoint a faculty committee to draft a new admissions policy for the law school. The committee would be chaired by Professor Richard Lempert, an expert on law and sociology. Its members would include Ted Shaw, one of two blacks on the faculty and a former lawyer for the NAACP Legal Defense and Educational Fund, as well as Jeffrey Lehman, an up-and-coming professor who specialized in tax and welfare law. The new admissions director, Dennis Shields, also would serve on the committee. (Bollinger had asked Stillwagon to resign after concluding he was too inflexible.)
When the new policy was released the following April, it echoed the language of Powell's opinion in Bakke, saying that diversity, particularly with regard to race, was a paramount interest. The policy expressed "a commitment to 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." Those students "are particularly likely to have experiences and perspectives of special importance to our mission." The school would seek a "critical mass" of minority students to ensure "their ability to make unique contributions to the character of the Law School." The policy also drew a line, saying the school would not accept any applicants who couldn't be expected to graduate without any serious problems. Bollinger was pleased, and a few days later the faculty overwhelmingly adopted the policy.
The following year, in the fall of 1993, Bollinger received a visit from Samuel Issacharoff, a lawyer representing the University of Texas Law School in a suit that was challenging its admissions policies. Issacharoff asked Bollinger to testify in the Texas case. Bollinger initially was concerned that his testimony might make Michigan the next target, but after consulting with several colleagues, he agreed to take part. Bollinger testified that classroom diversity was an essential part of a top-notch legal education and that schools like Michigan cannot achieve diversity without using race in the admissions process. He also said Michigan needed to have at least 10 percent black enrollment to ensure that those students were in a comfortable learning environment.
Continues...
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Table of Contents
Litigation Timeline.Prologue.
Part One: A Gathering Storm. (December 1995–October 1997).
1 A Tale of Two Professors.
2 Getting Lawyered Up.
3 Gratz, Grutter, and Hamacher.
Part Two: Trial Court. (October 1997–April 2001).
4 Equal Protection.
5 Arguments Michigan Wouldn’t Make.
6 A Clash in Chambers.
7 Accepted on the Spot.
8 Bollinger's New Front.
9 Duggan's Distinction.
10 Preferences on Trial.
Part Three: On Appeal. (April 2001–December 2002).
11 A Court Divided.
12 Martin v. Boggs.
13 Looking to the High Court.
Part Four: The Supreme Court. (December 2002–June 2003).
14 The Most Powerful Woman in America.
15 Friends of the Court.
16 "She's Fabulous".
17 "Race Unfortunately Still Matters".
18 Hail to the Victors.
Epilogue.
Acknowledgments.
Notes.
Index.
What People are Saying About This
"An engrossing, thought-provoking, fast-paced read, A Black and White Case thoroughly and even-handedly captures both sides of an epic legal struggle that will affect American race relations for decades to come." —Debra Dickerson Author, The End of Blackness and An American Story
"Greg Stohr has found the grays in A Black and White Case. He has written a full, fair, and scrupulously balanced account of the surprising legal battle that was supposed to end the use of race as a factor in college admissions, but instead gave affirmative action its biggest win ever in the Supreme Court." —David Savage Supreme Court reporter for the Los Angeles Times
"By setting out in detail the constitutional questions posed by racial preference and the individual lives of litigants, advocates, and judges directly involved in these landmark cases, Greg Stohr's book supplies a valuable chronicle for the national discussion that necessarily continues. No one who honestly wants to reach common ground can fail to be benefited by canvassing the ground already traversed with A Black and White Case as their guide." —Douglas W. Kmiec Chair and Professor of Constitutional Law, Pepperdine University
"A Black and White Case raised my understanding of last year's Supreme Court cases on affirmative action to an entirely new level. This makes the book essential reading for college admissions professionals. The surprise bonus is that it is truly a page-turner, immensely readable, engaging in human terms, and well informed. It's a special pleasure to learn a lot from a book you also enjoy with every passing page." —William M. Shain Dean of Undergraduate Admissions, Vanderbilt University
"A fascinating and compelling account of landmark cases on an issue of enormous importance in American society. Greg Stohr's description of the University of Michigan affirmative action cases is a terrific account of litigation that will affect America's colleges and universities for years to come." —Erwin Chemerinsky Alston & Bird Professor of Law, Duke Law School
"Every major decision by the Court is but the culmination of a fascinating drama, one that may have taken years to unfold. It takes a particular gift for a writer to reconstruct such a story and to sustain a lively interest in it even though we know what its last chapter will say. Greg Stohr has given us an impressive retelling of this story, with vivid portraits of the actors and a richly detailed account of the maneuvering, manipulating, and massaging that went into each side's strategy." —Lyle Denniston Supreme Court reporter since 1958 Covered the Michigan cases for the Boston Globe