In the past 2 years, state universities in California and the 5^th Circuit have been forced to cease using racial preferences in academic admissions. In California, the prohibition was Proposition 209, passed in November 1996, amending the California State Constitution (see TIP, 34(4), 57–68). In Texas, Louisiana and Mississippi, the prohibition was the 5^th Circuit’s March 1996 Hopwood decision which struck down the University of Texas law school’s racially separate admissions standards. Hopwood alarmed civil rights advocates for many reasons not the least of which was inviting litigation in other Circuits such as the challenge to the University of Michigan’s affirmative action policies.

Hopwood was the first precedent where a federal court struck down a university’s affirmative action program. Subsequently, the Supreme Court’s July 1996 denial of certiorari in Hopwood meant that although state universities in other parts of the country could presumably feel free to continue using racial preferences, state universities in Texas, Louisiana and Mississippi, the 5^th Circuit, could not. Hopwood was most noteworthy for rejecting the Supreme Court’s 1978 Bakke decision which had allowed race-conscious admission decision-making at Berkeley. Customarily, the Supreme Court reverses itself, not a Circuit court. Even more alarming, this was the Circuit in which so many discrimination precedents had been won. Probably most alarming of all, not one of the liberal Justices in Bakke remains on the Supreme Court. Furthermore, four sitting Justices are on record as opposing racial preferences such as those practiced at Berkeley prior to Proposition 209’s passage.

Enter the University of Michigan, the Washington-based Center for Individual Rights (CIR), and their "poster applicant" Jennifer Gratz. Gratz applied to the University of Michigan 2 years ago with an ACT score of 25 and a 3.76 high school GPA. She had been a student council leader, a math tutor, a cheerleader, homecoming queen and was a senior citizen volunteer in her working-class Detroit suburb. She was denied admission. CIR found Ms. Gratz, who is the named plaintiff, along with other white applicants, all of whom argued they would have been admitted had they been minorities.

Gratz’s challenge was revealed in the bright light of public scrutiny with the publication of the following minority and non-minority admission "grids" in the Washington Post and the New York Times.

The grids had been obtained by a philosophy professor under Michigan’s Freedom of Information Act and were referred to in Time (November 10, 1997) as "the kind of evidence that make a conservative litigator’s pulse race." According to an editorial in the Washington Post:

"Jennifer Gratz’s lawsuit challenging the University of Michigan’s undergraduate admissions policy is a win-win proposition for opponents of affirmative-action programs and a significant headache for their defenders. If Ms. Gratz prevails in lower courts, the university could be forced to dismantle its program, joining public universities in California and Texas that have adopted race-blind admissions policies and then seen minority enrollments plummet. On the other hand, if Ms. Gratz loses, foes of affirmative action will have the opportunity to challenge the race-conscious admissions processes before the Supreme Court at a time when the high court is notably unfriendly to affirmative action generally.

Ms. Gratz, who is represented pro bono by the conservative Center for Individual Rights, claims she was discriminated against when she was wait-listed and later turned down by Michigan 2 years ago because she is white. On its face, her case appears to be a strong one. University admissions guidelines seem to instruct admissions officers to handle minority applications differently from those of white applicants, laying out a dual set of standards that could raise a constitutional problem under the Supreme Court’s 1978 case of University of California Regents v. Bakke. In Bakke, the Court allowed race to be a factor in admissions but said it would not preclude any candidate from receiving full consideration. That is precisely what Ms. Gratz alleges happened to her, because the guidelines suggest that comparably qualified minority candidates generally should be admitted. These are disturbing guidelines, and it is significant that the university has since changed its admissions system to one that would be easier to defend under Bakke.

At the same time, it would be premature to pass judgment on a complex admissions system before all the evidence is in. It is difficult to demonstrate that any one student was rejected because of race as opposed to the myriad of other factors that influence admissions at a large university, and the University of Michigan gives preferential treatment to students on bases other than race. Students from certain counties in Michigan get preferential treatment, for example, as do students whose parents are Michigan alumni. It is not logical to suggest that race can be a factor in admissions but can never play a decisive role in an individual admissions decision. Even a program that meets the Bakke test, in other words, is going to produce certain white victims—like, perhaps, Ms. Gratz—so the mere fact that such victims exist cannot necessarily mean that the program is constitutionally deficient.

The larger question, of course, is whether Bakke even remains the law of the land. Normally, the courts wait for the Supreme Court to renounce one of its own rulings before declaring the ruling dead. But the U.S. Court of Appeals for the Fifth Circuit paid the high court no such deference when it ruled last year that the University of Texas could not use race as a factor in law school admissions. This was, in our judgment, a bad decision that jumped the gun on an important constitutional question. But it is also possible that the decision in Hopwood v. Texas correctly anticipated the direction that the Supreme Court, which declined to review the case, eventually will go on affirmative action in education. It is not obvious that this will be the case, however. While the court has narrowed the acceptable uses of affirmative action in recent years, the public university is a unique environment—constitutionally as well as culturally. Allowing a university to foster diversity by factoring race into admissions decisions under certain narrow circumstances still seems to be a constitutional approach." (Washington Post, December 22, 1977, A26).