The University of Michigan
Information on Admissions Lawsuits

News Releases & Articles | Statements by University Leaders & Others | Press Kits, Photos & Media Contacts
¡En Español! | E-mail Sign-up | Archived Documents | U-M News Service | U-M Gateway

Supporting Research Court Filings Legal Overview FAQs What's New Admissions Lawsuits Home Page

Open the 'Black Box' of College Admissions

Article in The Chronicle of Higher Education
By Marvin Krislov,
Vice President and General Counsel of the University of Michigan
August 1, 2003

In the wake of the Supreme Court's rulings in the Michigan cases, we have learned a great deal about how to design an admissions system that appropriately considers race. But reviewing university procedures — and revising them if necessary — represents only a portion of the work ahead of us. If we are to build on the credibility conferred by the court's affirmation of the educational importance of diversity, we must accept both the opportunity and the obligation to explain our goals and policies openly and publicly. While that is especially true for public universities that answer directly to their states, private universities must also account to alumni, trustees, and donors, as well as to their campus communities.

In its rulings, the court clearly established that diversity is a compelling interest justifying the use of race and ethnicity as one factor in college and university admissions, but it also restricted the design, or "tailoring," of policies permitted under the Constitution. As we know, the court endorsed Michigan's law-school admissions process as sufficiently individualized and holistic, but struck down the undergraduate-admissions policy as too "mechanistic," largely because it awarded points to underrepresented minority applicants.

Despite many key areas of clarity in the decisions, opponents of affirmative action call them confusing and have predicted years of additional litigation, as well as a wide range of challenges in state legislatures and at ballot boxes. The temptation to avoid those debates will be great, particularly for colleges and universities that fear legal and/or political challenges. Especially at a time when budgets are strained, some institutions, perceiving some areas of uncertainty in the court's landmark ruling, may wish to avoid any controversy.

That is just what we cannot afford to do. We all manage risk on a daily basis, and active leadership on this critical issue can actually minimize that risk. Opinion polls have shown that Americans support inclusion and opportunity for members of minority groups, but remain ambivalent about affirmative action: A Chronicle poll this year showed Americans generally supportive of the goals of affirmative action in higher education, but concerned about the methods used to achieve them. A CBS poll indicated that, in the last five years, a growing percentage — a majority — of Americans has come to favor programs that help members of minority groups overcome past discrimination. A June Gallup poll indicated that a plurality favors affirmative-action programs. Yet other polls indicate that a majority opposes consideration of race and/or legacy in admissions decisions. We need to confront such uncertainty with clear arguments.

The Supreme Court left open a number of avenues for universities to pursue affirmative action in accordance with the Constitution, and we must understand them. Then we must explain what we do and why it is important. As the court indicated, it will defer to academic judgments that have been made thoughtfully and are substantiated. The guidelines we can take away from the court's rulings include:

Use individualized, holistic candidate reviews. Procedures may need to be revised to include, for example, more faculty involvement in establishing admissions policies and evaluating candidates, or more candidate interviews. More resources may be required.

Regularly review admissions policies. The court has stressed monitoring affirmative-action programs to gauge when they are needed. That does not mean, however, that all alternatives must first be exhausted, or that an institution must sacrifice its educational mission by, for example, lowering admissions standards or conducting a lottery.

Pay attention to achieving more than token numbers of minority students. What the court approved in Michigan's law-school process was that its definition of the "critical mass" of minority students needed to meet important pedagogical objectives did not amount to an outright or disguised quota. So long as the structure and process of the admissions system look at individual applicants and ensure competition among all, then admissions officers may aspire to having significant numbers of minority students in a class.

Analyze financial-aid and outreach programs that focus on members of specific minority and racial groups. Department of Education guidance issued in 1994 embraces the diversity rationale as one basis for race-specific programs. It emphasizes the need for narrow tailoring and, among other factors, the consideration of alternative methods, the duration of programs, and their burden on noneligible students. The court's ruling does not affect targeted financial aid to remedy past discrimination, but some aspects of the 1994 guidance on narrow tailoring may be revisited in light of the court's ruling.

Ensure that race and ethnicity, if considered, are evaluated flexibly as a "plus" factor for each applicant. The court cautioned that race and ethnicity should not be used as the "defining feature" of an application.

We cannot, however, simply rest with analyzing the Supreme Court opinions. The Michigan cases have begun a national discussion of diversity, race, and ethnicity not seen in the almost three decades since the last major case on university affirmative action, Regents of the University of California v. Bakke. A record number of briefs for and against Michigan's policies were filed with the court, and journalists and editorial writers across the country gave substantial coverage to the fine points of university policies and processes. Hitherto unexplored issues such as legacy admissions received front-page attention, making the point that admissions offices typically consider a variety of factors, not simply grades and test scores.

Nevertheless, many elements of admissions remain a "black box" to our alumni, prospective students, legislative audiences, and other constituents. Today, we in higher education have a golden opportunity to articulate our core values, and we should not shrink from that task.

At Michigan, while the cases were in court, we took the lead in explaining the value of diversity on our campus, as well as the inner workings of our admissions policies. Our Web site, which featured virtually every legal filing, along with extensive social-science research on diversity and the details of admissions procedures, became a vital resource for affirmative-action advocates, journalists, and scholars. Use of the site steadily increased as the cases progressed, from an average of about 10,000 visits per month from July 2000 through June 2001 to an average of nearly 500,000 in each of the first six months of this year. We have received hundreds of e-mail messages from those using the site, many praising its relevance and thoroughness.

In six years of public debate on and off our campus, the University of Michigan gained an enormous benefit from focusing on several key issues. First and foremost, we explained the relevance of diversity to all fields of academic endeavor, and why all students gain from exposure to diverse peers. We also strove to clarify our specific admissions policies. The key goal was, and continues to be, transparency. We explained that we receive many thousands of highly qualified applications for a limited number of spots, and must often make subjective choices. We showed that all applicants compete and are judged on many factors, chief among them academic preparation. And we also noted that we are forming a team, not simply making a series of disconnected individual decisions.

Our constituents further needed to understand what we were doing to expand the eligible pool of applicants through outreach and recruitment, why affirmative-action programs still are necessary despite those efforts, and why alternatives like percentage plans, under which institutions admit a given proportion of a high-school class in their state, may not achieve their educational mission or may sacrifice other important values. In doing so, we answered the commonly heard critique: "We share your goals, but isn't there a better way?" Our answer: "Not at this time, with our current pool of highly qualified students, and when race and ethnicity still remain such a salient feature of American life."

Finally, it was crucial to recruit allies to help make the case for the importance of diversity, in particular in areas such as the world of multinational corporations and the U.S. military. That effort made a difference to the court, and we in higher education should engage such groups in making the continuing case for diversity.

These historic Supreme Court decisions call on us to articulate the need for racial and ethnic diversity on our campuses and the necessity of taking action to achieve it. Justice Sandra Day O'Connor's majority opinion stated that affirmative action should have served its purpose and should no longer be required in 25 years. That underscores the urgency of our task. Our leadership may affect the course of public policy for years to come. Indeed, the Supreme Court rulings, which superceded a 1996 decision barring affirmative action in public institutions in Texas, have already made a difference. Immediately after they were announced, the presidents of both the University of Texas at Austin and Rice University said it was likely that race would once again be considered in admissions decisions.

History suggests that Supreme Court decisions, over time, may shape public opinion. A Gallup poll conducted in May 1954 asked respondents whether they approved or disapproved of the Supreme Court's holding in Brown v. Board of Education, which found segregated schools illegal. In the poll, 55 percent approved and 40 percent disapproved. Five years later, the approval rate had increased to 60 percent; today, it is unlikely that any but a small minority would disapprove of Brown's conclusion.

Let us hope that the Michigan cases give us the courage to have a similar conversation about diversity and how we can best achieve it.

This article from The Chronicle of Higher Education is available online at:
Copyright 2003 by The Chronicle of Higher Education

Top of page

Questions? Comments? Please send e-mail to
Site last updated: September 5, 2012.   Copyright © 1997–2013 Regents of the University of Michigan.