MORE ON U.S. SUPREME COURT AFFIRMATIVE ACTION DECISION:
STILL UNCONSTITUTIONAL
 Peter Kirsanow

 It's a new academic year. Millions of applications will soon be flowing into college admissions offices.

 As in previous years, administrators will comb through applicant files separating those who make the grade from those who don't. This year reviewers will have a powerful new tool at their disposal - Supreme Court license to discriminate on the basis of race.

 Sure, many schools were doing it long before Grutter. Now, however, the Court has provided not just a green light but guidance, however scrambled, as to how to discriminate lawfully.

Over the summer colleges consulted with legal counsel to craft admissions policies that would comply with Grutter. Michigan, the school at the center of the preference debate, recently rolled out its new undergraduate-admissions policy. UM revised the undergrad-admissions program that the Court held unlawful to more closely track the law-school program upheld by the Court. Yet its new policy reveals that Michigan hasn't critically evaluated Grutter's implications. Indeed, the new policy evinces the kind of hubris displayed by a teacher's pet who lazily ignores homework instructions believing that, just as in the past, he'll get a passing grade nonetheless.

 There are several infirmities with the new policy, not the least of which is contained in the instructions to admissions officers on how to consider an applicant's race and ethnicity. The policy states that "the University will continue to seek a critical mass of students from these underrepresented groups . . . (i.e., black, Hispanic, native American)." (Emphasis added.) The problem is that Michigan is seeking that which its own  admissions  people   cannot  find.   And  that exposes UM to litigation under the strict scrutiny analysis.

 Consider: Racial classifications must survive "strict scrutiny" to pass constitutional muster. Strict scrutiny requires two things: that a classification further a compelling state interest and be narrowly tailored to serve that interest. The Grutter Court found that the educational   benefits  flowing from  a  diverse  student body qualify as a compelling state interest. But the Gratz Court struck down Michigan's undergrad admissions program because it awarded 20 points to applicants from underrepresented groups. The Court found such a system violated the narrow tailoring prong of strict scrutiny. The Court upheld the law school's admissions program because it conducts a "holistic, individualized review" of applicant files to reach a "critical mass" of underrepresented minorities rather than assign raw point values to minority applicants.

So just what is Michigan's critical mass of minorities? A review of the trial-court testimony of the individuals charged with formulating and implementing UM Law's admissions program shows that, well, they know it when they see it.

Dennis Shields, who, as director of admissions, helped design UM Law's admissions program in 1991, testified that he couldn't say just what percentage of minorities constitutes a critical mass. He acknow-ledged that 5 percent was probably not enough; 10 percent might be enough, but he didn't know for sure because it depended on the assessment of others in the law school.

 Erica Munzel replaced Shields in 1998. She testified that critical mass isn't a number or percentage, nor is it a range of numbers or percentages. Rather, critical mass means "meaningful numbers" of minorities - enough that they'll contribute in the classroom and won't feel isolated. Munzel asserted that she asks law-school professors for feedback to determine if a critical mass has been reached and if it hasn't, the dean will let her know.

 Okay. So let's see what the professors and the dean had to say about critical mass.

 Despite Munzel's contention that critical mass isn't a number or percentage, those to whom she defers have different ideas (especially when pressed on cross-examination). Kent Syverud (now dean of Vanderbilt Law School) testified that a class that's 7 percent black represents a critical mass of blacks, although even 5 percent may work in some settings. In fact, 1-3 (blacks/minorities) per class could, in theory, get the job done.

 To be sure, Syverud agrees with Munzel that critical mass means "meaningful numbers" but on cross he was more specific about what that means: A law-school class that's 16 percent black, over 5 percent Hispanic, 1 percent native American, almost 5 percent Asian, 2 percent foreign, and 69 percent white could have "meaningful numbers."

 The testimony of professor Richard Lempert who chaired the faculty committee that authored the admissions policy was also at odds with Munzel's contention that critical mass isn't a range of percentages. On direct Lempert maintained that critical mass wasn't a range of percentages. But on cross he noted that the benefits of critical mass are associated with classes in which the percentage of black, Hispanic, and Native-American students ranges between 11-17 percent of the overall student population.

 Dean Jeffrey Lehman (now president of Cornell) doubted that 5 percent constitutes a critical mass but opined that a school can begin to get "benefits" at 10 percent.

 Associate professor Frank Wu of Howard Law School was much more precise. He conceded on cross that a minority population of 14.5 percent could constitute a critical mass.

 Despite these inconsistencies, Michigan's hierarchy all agreed that critical mass was the point at which there were enough minorities that they'd be comfortable participating in class without feeling as if they were spokesmen for their respective races. This is quite under-standable. After all, who would want the burden of presenting the Hispanic stance on the Heisenberg uncertainty principle? Or the Native-American perspective on gradient derivatives? Or even the black position on Gilgamesh? And imagine the clash of cultures regarding the value of pi.

 Perhaps the best description of critical mass was provided by Dean Lehman:

 You know when you have a critical mass when you see the kind - it is connected to context. And in a given context, sense a critical mass when you have - what we might think of as a kind of break-through movements in the class, break-through conversations where people say I heard something new today that shook a preconception of mine. Or I heard a perspective that I might not have had any preconceptions at all, but I learned something different. I learned a different perspective on a legal problem or a legal issue that now going forward I am going to incorporate into my tool kit so that I can try now to see the world through now the eyes of a different classmate in a different way. (Emphasis added.)

 In other words, it's the point at which shouts of "Eureka!" can be heard throughout campus.

 This neatly illustrates the absurdity of the critical-mass rationale. Especially illuminating is Lehman's reference to "context." Lehman's analysis may arguably apply to classes in law, political science, history, sociology, and the like; blacks might have a different take than whites on, say, the residual effects of black codes on black-literacy levels post-Reconstruction. But the curricula of elite schools consist of much more than traditional liberal-arts disciplines. Racially inspired Eureka! moments are rare enough in American-history classes. Their occurrence in oceanography, statistics, organic chemistry, or electrical-engineering classes would be nothing less than miraculous.

 It should be noted that, notwithstanding Lehman's definition of critical mass, many preferences proponents contend that one of the objectives of a diverse student body is to demonstrate that there isn't a Native-American or Hispanic viewpoint on a given subject. But this is a straw man, and also presumes that only the social sciences are taught in college. Where are all of these benighted souls who actually think there's a black viewpoint on the speed of light?

 Moreover, as former Yale Law School student Jonathan Kay observes, one of the unintended consequences of the use of preferences to produce a "critical mass" of minorities is that it sometimes yields a result completely opposite of the one Lehman describes. Writing in the June 2003 issue of Commentary, Kay notes that the purported benefits of diversity rarely emerged: "Whites became increasingly reluctant to offer any comment that might be interpreted as threatening to blacks, while classroom comments by black students on any race-charged issue would almost always go unchallenged. Among my white peers, there was a feeling that sentiments expressed by black students had to be treated as correct for blacks, and therefore immune from refutation. In general, most students were terrified at being accused of racism; and when a subject connected to race came up, they either uttered platitudes or kept their mouths shut."  It should be noted that Kay does not  argue  that “diversity" per se causes this phenomenon;  rather,  the means by which the critical mass is achieved (i.e., lowering of standards and the stigma associated therewith) can produce perverse results.

 While the testimony of Michigan's witnesses suggests the definition of critical mass is, to say the least, nebulous, the trial court found that in practice Michigan's critical mass has been much more precise, i.e., a quota. Michigan's 1992 draft admissions policy explicitly set 11-17 percent minorities as a goal. Law-school documents as far back as the 1970s set 10-12 percent as the desired number. And the testimony of Shields, Lempert, and Lehman all suggest the percentage hovers around  10-12 percent.  In  fact,  since  implementation of the critical-mass policy, minority enrollment has, just coincidently, never fallen below 11 percent.  The dilemma inherent in Michigan's critical-mass formulation is that if it consistently yields a 10-12 percent minority population, it's a de facto quota; but if it's as imprecise as Lehman's description, it's not narrowly tailored and may even demonstrate that the policy hasn't been enacted in good faith - especially when the admissions officer keeps running back to the dean to see if they've gotten "enough" minorities (again, a quota). Either way, it's unconstitutional.

 Numerous other questions remain in Michigan's policy. For example, it's unclear whether the policy will be periodically reviewed or sunsetted as suggested by the Court. It's also unclear what weight race will be given in the evaluation process. And there's no evidence that the educational benefits allegedly derived in the lawschool context are transferable to the undergraduate experience. All of these things suggest that even aside from the questions regarding the mystical critical mass, Michigan may be courting litigation on a number of fronts.

 Guest comment, National Review Online, September 30, 2003.

 Peter Kirsanow is a member of the U.S. Commission on Civil Rights.

Newsletter, January 2004 -Text