What Happens When a College’s Affirmative-Action Policy Is Found Illegal

Marvin Krislov had his hands full in 2003. The University of Michigan was on trial in two cases that challenged its affirmative-action policies. One case, Grutter v. Bollinger, alleged that the law school’s admissions policy was discriminatory; the other case, Gratz v. Bollinger, said the same was true of the undergraduate policy. Krislov, the general counsel of the university from 1998 to 2007, led the defense.

As the current trial against Harvard, which appears poised to head to the Supreme Court and which alleges that the institution discriminates against Asian American applicants, reaches the end of its second week, I spoke to Krislov about one possible outcome: what happens when the Court decides a school’s admissions policies are illegal.

Read: What the Harvard trial is really about

When Krislov joined the University of Michigan in 1998, there were 1,944 full-time black undergraduate students, according to the National Center for Education Statistics, which was roughly 9 percent of the overall campus population. Four percent of the student body was Latino, and that figure had started to tick upwards after a few years of decline. Year over year, for the most part, the university was growing more diverse. And a lot of that diversity, said Krislov, now the president of Pace University, was due to actively factoring in race while considering students for admission.

But looming in the background were the two cases, which had been filed a few years before Krislov arrived. The Center for Individual Rights had led a charge to search for students who believed they had been denied admission to the university on the basis of their race, and they found them. One student, Barbara Grutter, a white woman, had been denied admission to the law school; another, Jennifer Gratz, also a white woman, had been denied admission to the undergraduate school.

The two separate cases at the University of Michigan reflected two separate systems of race-conscious admissions. The law school took the tack that Justice Lewis Powell had lavished praise upon in his 1978 opinion in the landmark Supreme Court case upholding the use of race in admissions. In the Regents of the University of California v. Bakke case, Powell wrote that using race as one of many factors in considering an individual was the ideal way of doing admissions. But the undergraduate school, which was challenged by Gratz, used a point system; the system held that blacks, Latinos, Native Americans, and low-income applicants were assigned 20 points automatically.

Over the course of six years, the cases wound their way through the courts, before arriving at the Supreme Court. And there were two very different outcomes. In a 5–4 decision, the university won in the case brought by Grutter, and the Court upheld the use of race in admissions for the purpose of campus diversity as long as it was used in a “narrowly tailored” way. The same could not be said for the undergraduate college. “It was found to be formulaic and not narrowly tailored,” Krislov told me. In a 6–3 decision, the Court found the undergraduate policy to be in violation of the equal-protection clause of the Fourteenth Amendment.

But Justice Ruth Bader Ginsburg had a different take. In her dissenting opinion, she wrote: “If honesty is the best policy, surely Michigan’s accurately described, fully disclosed college affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.” Isn’t it better, she asked, to just be honest about what you’re doing in admissions instead of disguising it?

Read: Elite-college admissions are broken.

Still, the university was forced by the Court to change its undergraduate admissions policy. In an interview with Judy Woodruff, then an anchor at CNN, shortly after the decision, Mary Sue Coleman, the university’s president at the time, said the shift wouldn’t be that difficult. “What we may do is to fashion our undergraduate policy along the lines of the law-school policy, which the Court said is fine and said that the law-school policy is constitutional,” she said. “And what that means is it’s a more individualized attention to every single application. And we’re happy to do that.”

And that’s what the university did. For the first couple of years after the school made the switch, the undergraduate black and Latino populations hovered around 1,750 (8 percent) and 1,100 (6 percent), respectively. “Then, shortly thereafter, Ward Connerly came to the state,” Krislov says.

Connerly was the political strategist who had ushered Proposition 209, the ballot measure that banned affirmative action in California, through the process. The measure he organized in Michigan, the “Michigan Civil Rights Initiative,” or Proposition 2, passed on referendum in 2006. “The referendum changed the permissibility of considering race at all, and so Michigan has been struggling to try to improve the percentage—particularly of African Americans—that has fallen since the referendum,” Krislov said.

Black enrollment at the University of Michigan dropped by nearly 10 percent in the three years following Proposition 2—from 1,615 to 1,476, according to the National Center for Education Statistics. And according to the university, black enrollment has hovered around 1,200 since 2010—4 percent of the overall campus population. As of 2017, “underrepresented minorities,” including black, Hawaiian, Latino, and Native American students, as well as those with two or more of those characteristics, made up 12.8 percent of the undergraduate population. Universities in California saw similar declines in minority-student enrollment when race-conscious admissions—the use of race as one of several factors for admission—were banned in 1996.

Only a handful of colleges are selective enough to need to use affirmative action in admissions. And the lawyers for Students for Fair Admissions have argued in court that “the future of affirmative action is not on trial” in their current suit against Harvard—though they have made several points that single out race as a potentially unequal consideration in the admissions process at Harvard.

What happened at the University of Michigan—and in California—suggests that if the Harvard case does make it to the Supreme Court and the Court breaks precedent by finding that the use of race in admissions is not legal, underrepresented minority populations on college campuses that have previously considered race will decline. According to David Card, an expert who testified for Harvard, without considering race as a factor in admissions, the percentage of black students on campus would fall from 14 to 6 percent, and the Latino population would drop from 12 to 9 percent.