Transcript Slide 1

Affirmative Action
Experts in Grutter v. Bollinger and Gratz v. Bollinger
March 21, 2007
Viral Gandhi
Affirmative Action
Grutter v. Bollinger
The Facts
• Barbara Grutter is a white, Michigan resident who graduated summa cum laude
with a 3.8 GPA from Michigan State University and received a 161 on the LSAT
• She was waitlisted and ultimately rejected at the University of Michigan Law
School
• The Law School has a policy which attempts to “achieve…diversity which has
the potential to enrich everyone’s education and thus make a law school class
stronger than the sum of its parts.”
– Special focus on African-Americans, Hispanics, and Native Americans
– Attempt to enroll a “critical mass” of these students in order to ensure that these underrepresented
minorities are able to make a contribution
– Race was a factor in the admissions process, but UM did not quantify it or have a quota system
• Grutter files suit alleging her application was rejected because the Law School uses race as a
“predominant” factor
– Gives applicants who belong to certain minority groups “a significantly greater chance of admission
than students with similar credentials from disfavored racial groups.”
• In 1995, 100% of “preferred” minority applicants with similar statistics to Grutter were admitted to the
Law School (3/3). Only 9% (13/138) of other applicants with similar statistics were admitted
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Affirmative Action
Grutter v. Bollinger (cont’d)
Supreme Court Analysis
• All racial classifications imposed by government “must be analyzed by a
reviewing court under strict scrutiny.”
• Such classifications are constitutional only if they are narrowly tailored to
further compelling governmental interests.
• Two step frame-work: 1) Is the Law School’s use of race justified by a
compelling state interest? 2) If so, are the means chosen to accomplish the
asserted purpose specifically and narrowly framed to accomplish that
purpose?
–Only justification provided: the educational benefits that flow from a diverse
student body
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Affirmative Action
Grutter v. Bollinger (cont’d)
The Holding
• Framework:
– 1) Is the Law School’s use
of race justified by a
compelling state interest?
– 2) If so, are the means
chosen to accomplish the
asserted purpose
specifically and narrowly
framed to accomplish that
purpose?
• The Law School has a compelling interest in attaining a diverse student body
• The Law School’s admissions program bears the hallmarks of a narrowly
tailored plan
–To be narrowly tailored, a race-conscious admissions program cannot use a
quota system
–A university may consider race or ethnicity only as a “plus”
–May not insulate individual applicant from comparison with all other
candidates for the available seats
–Admissions program must be flexible enough to ensure that each applicant
is evaluated as an individual and not in a way that makes an applicant’s race
or ethnicity the defining feature of his or her application
–The importance of this individualized consideration is paramount.
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Affirmative Action
Evidence: Social Science Experts
Summary
Claude Steele
Thomas Sugrue
Eric Foner
• Professor of psychology
who questions usefulness of
standardized tests
• Professor of history who
describes the patterns and
costs of racial separation
– Tests do not measure
innate ability or
achievement
– Whites and minorities live
in segregated residential
areas
• Historian who describes
history of race relations as a
struggle of continual
struggles in which rights
were sometimes won and
sometimes lost
– SAT not a good predictor
of academic success
– Different life experiences
of groups results in
varying political and
social views and gaps in
health, wealth, & poverty
• Believes that differences in
outlook and perception of
issues between whites and
nonwhites results from this
distinct historical experience
– Stereotype threat could
result in depressed scores
from minority students
Kent Syverud
• Law professor who thinks
racial heterogeneity in the
class room:
– Improves the Socratic
method
– Produces better lawyers
– Enhances class room
discussions, and
– Augments quality of
instruction
Robert B. Webster
• Former judge who thinks
access to diverse viewpoints
and a more diverse legal
profession results in:
– Lawyers who better able
to serve and empathize
with their clients, and
– Increased public
confidence in the judicial
system
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Affirmative Action
Claude Steele
Biography
• Chair of the Department of Psychology at Stanford University
• Member of faculty at Stanford, University of Michigan (19871991), and University of Washington (1973-1987)
• Research Scientist for the Institute for Social Research (19891991)
• Has written extensively about the psychology of how minority
groups, especially African Americans, contend with negative
stereotypes and the role this process can play in their school
achievement and standardized test performance
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Affirmative Action
Claude Steele (cont’d)
Preliminary Findings
Findings based on Research Literature
• I. SAT, ACT, and LSAT measure a set of scholastic skills that are neither innate nor
directly influenced by school curricula
– Based on the way the SAT and other tests are designed, the tests measure “developed”
skills and knowledge
– Test is not a vacuum that measures innate ability; performance can be influenced by
experience
– Tests do not measure mental capacity, nor do they measure achievement in a specific
curriculum
• II. Standardized tests are not very good at predicting academic success
– SAT measures ~18% (ranging from 7% to 30%) of the factors that determine freshman
year grades
– SAT only increases prediction of freshman grades by about 3% or 4% (ranging from
0% to 7%) over what could predicted using high school grades alone
– Correlations with sophomore year grades, graduation rates, and professional success
are even smaller
– A score difference between two people as large as 300 points represents a very small
difference in skills critical to grade performance
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Affirmative Action
Claude Steele (cont’d)
Steele & Aronson Stereotype Threat study (1995) - Methodology
• 114 Black and White Stanford undergraduates recruited through campus advertisements
• Randomly assigned to three groups, Diagnostic, Non-Diagnostic, Non-Diagnostic
Challenge
• Students in each group were a 30-minute test composed of items from the verbal section
of the GRE (very difficult)
– Diagnostic Group: Test presented as diagnostic of intellectual ability
– Non-Diagnostic Group: Test presented as laboratory tool for studying problemsolving
– Non-Diagnostic Challenge: Test presented as both a problem-solving tool and a
challenge
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Affirmative Action
Claude Steele (cont’d)
Steele & Aronson Stereotype Threat study (1995) - Findings
• There are factors that may cause minorities to perform worse than other groups
– Stereotype threat: Racial stereotype about ability negatively impacts Black students on standardized tests
– Refers to the experience of being in a situation where one recognizes that a negative stereotype about one's
group is applicable to oneself
– When this “stereotype spotlight” is turned off, Black and White students perform equally (after statistically
equating both groups for ability)
– Subsequent research has shown that the effect of stereotype threat is greatest for students who are most invested
in doing well on the test
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Affirmative Action
Claude Steele (cont’d)
Criticism
• What does this study really show?
– Black students who performed equally as well as white students on the SAT under-perform
their white counterparts on a verbal test that is presented as a test of ability
– When this “spotlight” is removed, black and white students who had performed equally on the
SAT also perform the equally on the verbal test
• Can this be generalized to the SAT, that if we have black and white high school students of
equal abilities, the black students will perform worse on the SATs because of the stereotype
threat?
– Verbal GRE : Verbal SAT :: SAT : Natural ability?
– Key assumption in Steele study was that SAT = ability. You cannot make this assumption in
the generalization because this what you are trying to dis(prove). How, then, do you measure
“natural ability”?
– Even if this can be generalized, how much of the score gap does stereotype threat explain?
All? Very little? What is probative value of study?
• Use of SAT as adjustment for equalizing ability
– Isn’t the SAT a poor indicator innate ability?
• Statistical significance and power
– Ultimately comparing performance of ~19 Black students against ~19 other Black students
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Affirmative Action
Thomas Sugrue
Biography
• Associate Professor of History and Sociology at the University
of Pennsylvania
• Won 1998 Bancroft Prize in American History for his first book,
The Origins of the Urban Crisis: Race and Inequality in Postwar
Detroit
• Research is focused on status of African Americans and their
relationship to larger society
• Has written extensively about race relations and inequality in
Michigan, with a particular emphasis on Detroit
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Affirmative Action
Thomas Sugrue (cont’d)
Methodology and Findings
• The degree of racial
separation in residence in
the United States remains
high because of:
– Longstanding official
policies,
– Standard practices in the
real estate industry, and
– Private attitudes
Methodology
• Consults reports of government agencies, the Census and other statistical reports, his own work, and writings by
other academics in order to describe the patterns and costs of racial separation and division in Michigan for the
court
– Focuses on Michigan and on Detroit, in particular
Findings
• While the United States and Michigan are composed of diverse populations, there is very little mixing of the races
in the neighborhoods
– 96.3% of Michigan’s black population lives in eleven census-defined metropolitan areas
– Residential segregation in Detroit higher in 1990 than in 1960
• Lack of racial diversity in neighborhoods can be explained by negative racial stereotypes
– Upward mobility and black surbanization of limited use in eradicating segregation because of white flight
• Impacts primary and secondary education as children attend school with others like themselves
– Whites only comprise 6.2% of Detroit’s public school system in 1994-5
• Minority experience in the workforce has shown progress
– Employers recognize importance of diversity in providing competitive advantage
• Racial and ethnic gaps in wealth, poverty, and health still remain
• Polls show blacks and whites have different views about the role of government, the reality of equal opportunity,
and the effectiveness of social policies
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Affirmative Action
Thomas Sugrue (cont’d)
Findings
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Affirmative Action
Thomas Sugrue (cont’d)
Criticism
• Michigan is perhaps not as homogenous as chart on previous page would
indicate
–What about diversity (economic, national, occupational, etc.) within the
communities?
• Is there an overarching “black voice” that is missing from the lives of whites,
or can this voice be represented through other avenues (lower income whites,
perhaps)?
• Sugrue blames real estate practices, official government policies, and (white)
private attitudes for racial segregation, but what about black private attitudes?
–Roughly 9 out of 10 blacks respond in surveys that they would like to live in
heterogeneous neighborhoods, but would this bear out if real estate barriers
were removed?
–Simple experience in high school cafeterias and weekend college parties
indicates the contrary
–Could easily design (or cite) a social science experiment to prove this,
rather than rely on surveys
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Affirmative Action
Eric Foner
Biography
• DeWitt Clinton Professor of History at Columbia University
• Faculty member of Columbia’s History Department since 1982
• Has written extensively on issues of race in American history,
with particular emphasis on the Reconstruction period
• President-elect of the American Historical Association at time of
case
• “One of the most prolific, creative and influential historians of
the past 20 years,” according to the Washington Post
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Affirmative Action
Eric Foner (cont’d)
Methodology and Findings
• History of race has not
followed a linear path to a
preordained goal
Methodology
• Consults sources and gives historical context to race relations through the lens of the African-American
experience
• Does not provide any statistical studies
Findings
• Race has been a critical dividing line in American society since the 17th century and remains so today despite the
progress made in eradicating the “color line”
– Legacy of slavery and segregation still exists in many pockets of America
• Race is a “social construct” that changes over time. Foner’s testimony “chronicle[s] how the meaning of ‘race’
and the status and experience of racial minorities ha[s] evolved during the course of American history”
• Shows that history of race does not follow a linear path to a preordained goal, but rather is one of continual
debates, struggles, starts, and stops (example: New Deal legislation extends federal assistance to broad groups of
needy Americans and offers hope to African-Americans. However, a two-tier system develops in practice where
generous benefits offered to whites and males and little or no aid to others
• Today, it is remarkable how much things have changed but have also remained the same
– Unprecedented racial diversity in all aspects of life but poverty, education, and income gaps still remain
between blacks and whites
• Differences in outlook and perception between whites and nonwhites results from this distinct historical
experience
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Affirmative Action
Eric Foner (cont’d)
Criticism
• Relevance of historical context?
–“These differences in outlook and perception…stem from the distinct
historical experiences of white and nonwhite Americans.”
–While the conclusion is relevant to an inquiry into diversity in law schools,
does the “why” matter?
• Lack of empirical evidence
• Historical events susceptible to interpretation
–Bias of writer?
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Affirmative Action
Kent Syverud
Biography
• Dean and Garner Anthony Professor of Law at the Vanderbilt
University Law School
• Prior, was a professor at the University of Michigan Law School
and also served as Associate Dean for Academic Affairs
– As Associate Dean, worked with new and experienced
teachers to improve the quality of teaching
• Professor of courses in civil procedure, negotiation and drafting,
and insurance law
• Frequently gives addresses about law teaching, about the
challenges of law teaching to lawyers, law teachers, judges and
teachers at other universities
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Affirmative Action
Kent Syverud (cont’d)
Methodology and Findings
• Diversity in the classrooms
results in a better legal
education
Methodology
• Submits an expert report to the court based on his own experience as a law professor
• Uses anecdotal evidence from his own classes
• Does not present any statistical studies or empirical analyses to corroborate his views
Findings
• Was at first skeptical about the positive impact that race had on educational experience of law students
– His position has changed gradually as he has gained experience in teaching law
• Now believes that “all law students receive an immeasurably better legal education, and become immeasurably
better lawyers, in law schools and law school classes where the student body is racially heterogeneous”
• Gives four reasons for his beliefs
– Racial heterogeneity augments the ability of a professor employing the Socratic method to achieve its purpose
– Students forced to articulate their own viewpoints and compare beliefs with classmates rather than digest
lecture notes from professor
– Racial heterogeneity also produces better lawyers
– Better listening skills leads to better advocates who can understand both sides of the controversy
– Classroom examples and discussions more meaningful (peremptory challenge discussions)
– Racial heterogeneity improves quality of classes and improves teaching in issues not traditionally associated
with race (attorney’s fess in civil procedure)
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Affirmative Action
Kent Syverud (cont’d)
Criticism
• Anecdotal evidence
–Beliefs could just be a product of his own biases
• “Better” lawyers? How does one measure this given the different types of
practice areas?
• Variations on Socratic method that may obliterate positive impact that
Syverud perceives that race has in classes
–Is his observation generalizable?
• Richer classroom discussion from professor’s perspective = better legal
education?
–What is the student perspective?
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Affirmative Action
Robert B. Webster
Biography
• At time of case, member of the law firm of Clark Hill P.L.C.
• From 1973 through 1982, served on Sixth Judicial Circuit,
Oakland County Circuit Court. Was Chief Judge from 1976
though 1978
– Prior, was member of Hill, Lewis, Adams, Goodrich & Tait
and its predecessor firms
• Has been Commissioner (1982-1990), Vice-President (19871988), President-Elect (1988-1989), and President (1989-1990)
of the State Bar of Michigan
• Graduate of Baldwin High School, University of Michigan
(1955), University of Michigan Law School (1957)
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Affirmative Action
Robert B. Webster (cont’d)
Methodology and Findings
• A diverse legal profession
results in better lawyers and
increased public confidence
in legal system
Methodology
• Offers expert testimony to the court based on knowledge and insight gained in forty years as attorney, counselor,
arbitrator, mediator, bar officer, and state court judge
• Like Kent Syverud, does not conduct his own statistical studies, but rather relies on his own experience
Findings
• Provides testimony about the impact of diversity on practicing lawyers
• Webster was not exposed to other races before being appointed to the bench
– Encounters exposed and destroyed racial stereotypes Webster did not know he had
• Conclusion 1: Being able to understand and work with individual of diverse backgrounds is one of the most
important skills for lawyers today
– Need for empathy, comfortable interactions, and destruction of stereotypes
• Conclusion 2: A more diverse legal profession serves a legitimizing function that enhances public confidence in a
just judicial system
– Michigan Task Forces and Commissions frequently find that bias in courtrooms is a chief concern of citizens
– In 1986, 33% of Michigan citizens believed that blacks and women were not treated as well by the court system
as were whites and men
– 231 court users said "increase the number of female and racial / ethnic minority judges and attorneys” as a
recommendation for ensuring equal and fair treatment of individuals in the Michigan Court system (next
highest response had only 47 advocates)
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Affirmative Action
Robert B. Webster (cont’d)
Criticism
• Anecdotal evidence
• Perceptions about effectiveness from one man on the bench
–Story could be different from client perspective or from other judges
–Beliefs could just be a product of his own biases
• Questioning the relevance of the second conclusion to Michigan case
– Nonwhite lawyers who are not admitted into Michigan will presumably be
accepted elsewhere
–Would not be true of all schools, however
• Webster seems to have done quite well for himself as a lawyer (partner in
“prestigious big-city law firm”) with limited exposure to different races
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Affirmative Action
The Court’s Use of Social Science Research
• Reminder: The two-step
framework for the Court’s
opinion was:
– 1) Is the Law School’s use
of race justified by a
compelling state interest?
– 2) If so, are the means
chosen to accomplish the
asserted purpose
specifically and narrowly
framed to accomplish that
purpose?
• Did the Court use social science research in its decision?
– Text of opinion appears to say “Yes,” especially with respect to the first step of the
analysis
– Court freely refers to and cites studies and amicus briefs in this segment of analysis to
show that there is a compelling state interest
– Court appears to be giving weight to testimony offered by experts like Syverud,
Webster, and Gurin
• However, what about Court’s final statement?
– “It has been 25 years since Justice Powell first approved the use of race to further an
interest in student body diversity in the context of public higher education. Since that
time, the number of minority applicants with high grades and test scores has indeed
increased. We expect that 25 years from now, the use of racial preferences will no
longer be necessary to further the interest approved today.”
• Is this case just about lower minority test scores? Will Court reverse itself when the
scores equalize in the future? What about the compelling interest and the purported
benefits of a diverse law school that the social science research established?
– This gives greater weight to the testimony offered by Sugrue, Steele, and Foner, that at
present, there is a divide/gap between blacks and whites but disregards the evidence
given to establish the compelling state interest of securing the benefits that flow from a
diverse education
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Affirmative Action
The Court’s Use of Social Science Research (cont’d)
Other Considerations
• Why did the Court accept the evidence so uncritically?
– Political stigma associated with topic
– Who will argue that diversity is not beneficial, or that the state has a compelling
interest in it given the historical context?
– No experts offered by Grutter to counter
– Anecdotal evidence coming from fellow lawyers
• How did the Court come to contrasting opinions in Gratz and Grutter even though they
relied on the same social science evidence?
– While the compelling interest is the same, the difference lies in second part of the
analysis
– Means chosen in Gratz did not meet Court’s requirement that the admissions program
must be flexible enough to ensure that each applicant is evaluated as an individual
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Affirmative Action
Appendix
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