Grutter v. BollingerGrutter v. BollingerGratz v. BollingerGratz v. Bollinger

The Affirmative Action The Affirmative Action Debates and Reasons for Debates and Reasons for Their Different OutcomesTheir Different Outcomes

Presented by Anne-Carmene Presented by Anne-Carmene Almonord and Shawndra JonesAlmonord and Shawndra Jones

Jonord v. Aibmuloc School of Jonord v. Aibmuloc School of Law- A HypotheticalLaw- A Hypothetical Facts:Facts:-applied to Aibmuloc -applied to Aibmuloc -was denied in favor of Almones-was denied in favor of Almones-was in the bathroom and overheard -was in the bathroom and overheard

the admissions committee saying the the admissions committee saying the candidates were equally qualified but candidates were equally qualified but Almones should not have even been Almones should not have even been in the pool of considered applicantsin the pool of considered applicants

-Almones is black and Jonord is white.-Almones is black and Jonord is white.-injunctive relief and compensatory and -injunctive relief and compensatory and

punitive damagespunitive damages

Admissions ProgramAdmissions Program

Point system to acquire a critical Point system to acquire a critical massmass

Two-tiered evaluationTwo-tiered evaluation

-1. “We consider all minorities because -1. “We consider all minorities because we would seek to obtain a ‘critical we would seek to obtain a ‘critical mass’ to promote cross-cultural mass’ to promote cross-cultural understanding.”understanding.”

-2. Then, we automatically assign 15 -2. Then, we automatically assign 15 points to minority musicians. points to minority musicians.

(Bad) Buzz Words(Bad) Buzz Words

-”racial balancing” -”racial balancing” -quota-quota -societal discrimination -societal discrimination -separate-separate -”reserved exclusively”-”reserved exclusively” -rigid-rigid -specific number-specific number -mechanical, predetermined-mechanical, predetermined ““predominant factor”predominant factor”

Grutter et al. v. BollingerGrutter et al. v. Bollinger

Grutter v. BollingerGrutter v. Bollinger

Facts: Facts: Petitioner Grutter applied to the law school with a LSAT score of Petitioner Grutter applied to the law school with a LSAT score of

161 and a 3.8 GPA, was waitlisted, and later rejected.161 and a 3.8 GPA, was waitlisted, and later rejected. Grutter sued, alleging violations of the 14Grutter sued, alleging violations of the 14 thth Amendment, Title VI, Amendment, Title VI,

and 78 Stat. 252, 42 U.S.C, sec, 2000d, Rev. Stat. sec. 1977, as and 78 Stat. 252, 42 U.S.C, sec, 2000d, Rev. Stat. sec. 1977, as amended, 42 U.S.C. sec. 1981.amended, 42 U.S.C. sec. 1981.

Grutter also alleged the law school used race as a “predominant Grutter also alleged the law school used race as a “predominant factor” and had no compelling interest to justify using race.factor” and had no compelling interest to justify using race.

Admissions ProgramAdmissions Program

Goals:Goals: -Sought to admit students who had -Sought to admit students who had

“substantial promise for success in law “substantial promise for success in law school” and “ a strong likelihood of school” and “ a strong likelihood of succeeding in the practice of law and succeeding in the practice of law and contributing in diverse ways to the well-contributing in diverse ways to the well-being of others”being of others”

Sought students who “promised to continue Sought students who “promised to continue the tradition of outstanding contribution by the tradition of outstanding contribution by Michigan graduates to the legal profession” Michigan graduates to the legal profession”

-More broadly sought “a mix of students -More broadly sought “a mix of students with varying backgrounds and experiences with varying backgrounds and experiences who will respect and learn from each other” who will respect and learn from each other”

Admissions Program Admissions Program (continued)(continued)Implementation:Implementation: Evaluated each applicant based on the Evaluated each applicant based on the

personal statement, an essay, letters of personal statement, an essay, letters of recommendation, GPA, and LSAT score recommendation, GPA, and LSAT score

Examined “soft variables” like recommender’s Examined “soft variables” like recommender’s enthusiasm and applicant’s likely contribution enthusiasm and applicant’s likely contribution to the social and intellectual lifeto the social and intellectual life

Allowed various possible bases for diversity Allowed various possible bases for diversity admissions but reaffirmed the school’s admissions but reaffirmed the school’s commitment to racial and ethnic diversity commitment to racial and ethnic diversity because students from certain groups because students from certain groups historically discriminated against would not be historically discriminated against would not be present in the student body at significant present in the student body at significant numbers numbers

Desired to enroll a “critical mass” of Desired to enroll a “critical mass” of underrepresented minority studentsunderrepresented minority students

BackgroundBackground

District Court granted class certification District Court granted class certification and bifurcated the trial into liability and and bifurcated the trial into liability and damages phases.damages phases.

District Court held the policy District Court held the policy unconstitutional under a strict scrutiny unconstitutional under a strict scrutiny standard because it was not narrowly standard because it was not narrowly tailored. tailored.

*Court of Appeals reversed, holding the *Court of Appeals reversed, holding the use of race was just a “plus” factor. 3 of use of race was just a “plus” factor. 3 of the 4 dissents found that diversity was not the 4 dissents found that diversity was not compelling. compelling.

Supreme Court granted certiorari because Supreme Court granted certiorari because this question was of “national importance.” this question was of “national importance.”

Evidence (and lots of it)Evidence (and lots of it)Respondent:Respondent: Dennis Shields, Director of Admissions at the time of Dennis Shields, Director of Admissions at the time of

application, said he gave no direction on the admittance of a application, said he gave no direction on the admittance of a particularparticular percentage of minorities. percentage of minorities.

Munzel, who succeeded Shields, provided a definition of “critical Munzel, who succeeded Shields, provided a definition of “critical mass”. It manes “meaningful numbers or representation”.mass”. It manes “meaningful numbers or representation”.

Lehman, current Dean of the Law School, said the law school Lehman, current Dean of the Law School, said the law school wanted to admit numbers so that minorities did not feel like wanted to admit numbers so that minorities did not feel like spokespersons or isolated. Consideration of race varies from spokespersons or isolated. Consideration of race varies from one applicant to another. one applicant to another.

Lempert explained the commitment to racial and ethnic diversity Lempert explained the commitment to racial and ethnic diversity but noted that it was not to remedy past discrimination.but noted that it was not to remedy past discrimination.

Syverud, professor when the policy was adopted in 1992, Syverud, professor when the policy was adopted in 1992, provided expert reports on diversity’s educational benefit. provided expert reports on diversity’s educational benefit.

Raudenbush predicted a negative effect of eliminating race in Raudenbush predicted a negative effect of eliminating race in admissions decisions.admissions decisions.

Petitioner:Petitioner: Larntz used admissions grids to conclude that certain minority Larntz used admissions grids to conclude that certain minority

group membership is an extremely strong factor in the group membership is an extremely strong factor in the acceptance decision but not the predominant factor. acceptance decision but not the predominant factor.

Compelling State Interest as Compelling State Interest as Applied to the Law SchoolApplied to the Law School

Diversity as a compelling state interestDiversity as a compelling state interest -educational benefits such as cross-racial -educational benefits such as cross-racial

understanding and the break down of racial stereotypesunderstanding and the break down of racial stereotypes -Complex educational judgments lie best w/ the school.-Complex educational judgments lie best w/ the school. -First Amendment and educational autonomy-First Amendment and educational autonomy -additional support by amici and their studies showing -additional support by amici and their studies showing

diversity “better prepares students for an increasingly diversity “better prepares students for an increasingly diverse workforce”, develops necessary diverse workforce”, develops necessary

skills, and is necessary to help the military fulfill its skills, and is necessary to help the military fulfill its mission of providing national securitymission of providing national security

--importance of preparing students for citizenship importance of preparing students for citizenship and workand work

-particular importance in law schools-particular importance in law schools -not premised on a “minority viewpoint”-not premised on a “minority viewpoint” Remedying past discrimination is not the only Remedying past discrimination is not the only

governmental use of race able to survive strict scrutinygovernmental use of race able to survive strict scrutiny

Holding and Discussion of Holding and Discussion of other Race-Neutral means.other Race-Neutral means. Court agrees with the Court of Court agrees with the Court of

Appeals.Appeals. Lottery system would sacrifice much.Lottery system would sacrifice much. Percentage plans that work for Percentage plans that work for

undergraduate institutions may not undergraduate institutions may not work for graduate institutions and work for graduate institutions and professional schools. professional schools.

-These means might decrease -These means might decrease individualized assessments.individualized assessments.

Gratz et al. v. BollingerGratz et al. v. Bollinger

Gratz v. BollingerGratz v. Bollinger

Jennifer Gratz and Patrick Hamacher Jennifer Gratz and Patrick Hamacher are white…they didn’t get into are white…they didn’t get into Michigan, so they decide to sue!Michigan, so they decide to sue!

Both applied to the University of Both applied to the University of Michigan’s (UM) College of Literature, Michigan’s (UM) College of Literature, Science, and the Arts and were Science, and the Arts and were denied, though Hamacher was denied, though Hamacher was applying as a transfer studentapplying as a transfer student

Both were found “qualified” but not Both were found “qualified” but not enough for “first-review admission”enough for “first-review admission”

The Mechanics…The Mechanics…

Sued for violations of the 14Sued for violations of the 14thth Amendment, Amendment, Title VI of the Civil Rights Act of 1964, Title VI of the Civil Rights Act of 1964, No person in the United States shall, on the No person in the United States shall, on the

ground of race, color, or national origin, be ground of race, color, or national origin, be excluded from participation in, be denied the excluded from participation in, be denied the benefits of, or be subjected to discrimination benefits of, or be subjected to discrimination under any program or activity receiving Federal under any program or activity receiving Federal financial assistance. financial assistance.

They were a part of a class similar to that They were a part of a class similar to that in in GrutterGrutter

Similar bifurcation into a liability and Similar bifurcation into a liability and damages phasedamages phase

The Beef…The Beef… In 1995 when the Petitioners applied, the In 1995 when the Petitioners applied, the

admissions office used the SCUGA test for admissions office used the SCUGA test for admissionadmission

SCUGA” factorsSCUGA” factors S=quality of an applicant’s high schoolS=quality of an applicant’s high school C=the strength of an applicant’s high C=the strength of an applicant’s high

school curriculum school curriculum U= an applicant’s unusual circumstances U= an applicant’s unusual circumstances G=an applicant’s geographical residence G=an applicant’s geographical residence A= an applicant’s alumni relationshipsA= an applicant’s alumni relationships

The Scarlet Letter…U!The Scarlet Letter…U!

By the time the suit comes into being, the By the time the suit comes into being, the admissions standards have been further admissions standards have been further modified…modified…

In 1997 additional values included under “U”In 1997 additional values included under “U” Under new system, applicants could receive Under new system, applicants could receive

points for points for underrepresented minority statusunderrepresented minority status, , socioeconomic disadvantagesocioeconomic disadvantage, or , or attendance attendance at a high school with a predominantly at a high school with a predominantly underrepresented minority populationunderrepresented minority population, , or or under representation in the unit to which the under representation in the unit to which the student was applyingstudent was applying (eg. men who sought (eg. men who sought to pursue a career in nursing). to pursue a career in nursing).

Under the 1997 procedures, Hamacher would Under the 1997 procedures, Hamacher would have been waitlisted…An underrepresented have been waitlisted…An underrepresented minority applicant placed in the same cell minority applicant placed in the same cell would generally have been admitted.would generally have been admitted.

Wait, There’s More…Wait, There’s More… Starting with the 1998 admissions cycle, the Starting with the 1998 admissions cycle, the

Guidelines table and SCUGA terminated in Guidelines table and SCUGA terminated in favor of a “selection index”favor of a “selection index” Applicants can score a maximum of 150 points. Applicants can score a maximum of 150 points.

Index is divided into ranges generally following this Index is divided into ranges generally following this scale: 100—150 (admit); 95—99 (admit or scale: 100—150 (admit); 95—99 (admit or postpone); 90—94 (postpone or admit); 75—89 postpone); 90—94 (postpone or admit); 75—89 (delay or postpone); 74 and below (delay or reject).(delay or postpone); 74 and below (delay or reject).

Under a “miscellaneous” category, Under a “miscellaneous” category, underrepresented racial or ethnic underrepresented racial or ethnic minorities received 20 automatic points. minorities received 20 automatic points. The University argued that the “ ‘development The University argued that the “ ‘development

of the selection index for admissions in 1998 of the selection index for admissions in 1998 changed only the mechanics, not the changed only the mechanics, not the substance of how race and ethnicity were substance of how race and ethnicity were considered in admissions.’ ”considered in admissions.’ ”

Also, there are “Protected categories”Also, there are “Protected categories” ROTC, foreign students, athletes, minoritiesROTC, foreign students, athletes, minorities

The Trial Pt 1: District CourtThe Trial Pt 1: District Court

Found that the evidence showed an ethnically and Found that the evidence showed an ethnically and racially diverse student body produces “significant racially diverse student body produces “significant educational benefits”educational benefits”

Found admissions plan narrowly tailored because Found admissions plan narrowly tailored because there was no predetermined number of minority there was no predetermined number of minority students and no quotas in usestudents and no quotas in use Reasoned the 20 points did not insulate Reasoned the 20 points did not insulate

minorities from review and therefore was not the minorities from review and therefore was not the functional equivalent of a functional equivalent of a quotaquota..

Found the protected categories as problematic Found the protected categories as problematic because there the university because there the university reservedreserved seats, which seats, which prevented prevented competitioncompetition

Granted partial summary judgment for Gratz et al. Granted partial summary judgment for Gratz et al. (only for the program from 1995-1998)(only for the program from 1995-1998)

The Trial Pt 2: Court of The Trial Pt 2: Court of AppealsAppeals Heard the case Heard the case en banc en banc on on

the same day as the same day as GrutterGrutter

Supreme Court to granted Supreme Court to granted certiorari following the certiorari following the petitioner in petitioner in GrutterGrutter seeking seeking certiorari, before 6certiorari, before 6thth Circuit Circuit decision was rendereddecision was rendered

Were they Wusses or not? Were they Wusses or not?

They weren’t wusses…Supreme Court They weren’t wusses…Supreme Court holds: Admissions procedures Violate the holds: Admissions procedures Violate the Equal Protection Clause and Title VI since Equal Protection Clause and Title VI since it is not narrowly-tailored it is not narrowly-tailored Automatically giving 20 points to every Automatically giving 20 points to every

“underrepresented minority” applicant is not “underrepresented minority” applicant is not individualized or narrowly-tailoredindividualized or narrowly-tailored

Makes race decisive instead of just a “plus” Makes race decisive instead of just a “plus” factorfactor

““Administrative convenience” is an insufficient Administrative convenience” is an insufficient justification.justification.

Differences between the Differences between the CasesCases

College v. professional school College v. professional school (but not everyone goes on to (but not everyone goes on to grad. School)grad. School)

Law schools as training grounds Law schools as training grounds for leadersfor leaders

Automatic points V. “plus” factorAutomatic points V. “plus” factor

The Fourteenth Amendment: This The Fourteenth Amendment: This is the Legal Issue Arguedis the Legal Issue Argued

Sued for violations of the 14Sued for violations of the 14thth Amendment, Title VI Amendment, Title VI of the Civil Rights Act of 1964, of the Civil Rights Act of 1964, No person in the United States shall, on the ground of race, No person in the United States shall, on the ground of race,

color, or national origin, be excluded from participation in, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial under any program or activity receiving Federal financial assistance. assistance.

Petitioner arguments:Petitioner arguments: -may only use race to remedy identified discrimination-may only use race to remedy identified discrimination -diversity is too ill-defined and open-ended to constitute a -diversity is too ill-defined and open-ended to constitute a

compelling state interestcompelling state interest -not narrowly-tailored-not narrowly-tailored

Respondent arguments:Respondent arguments: relied on Powell opinion.relied on Powell opinion. Asserted diversity as a compelling state interestAsserted diversity as a compelling state interest -narrowly-tailored because the program provides for individualized -narrowly-tailored because the program provides for individualized

consideration and furthers a compelling government interestconsideration and furthers a compelling government interest

Powell Standard Seen in Powell Standard Seen in BakkeBakke No racial balancingNo racial balancing No remedying societal discriminationNo remedying societal discrimination No community interest No community interest DIVERSITY as a compelling state DIVERSITY as a compelling state

interest!interest! WHY?WHY? -“Robust exchange of ideas” -“Robust exchange of ideas” -Can justify using race-Can justify using race BUTBUT ““race is only one element in a range of race is only one element in a range of

factors”factors”

Problems w/ Powell’s OpinionProblems w/ Powell’s Opinion

Joined by no other justiceJoined by no other justice Lower courts cannot seem to decide Lower courts cannot seem to decide

whether it was the holding and is whether it was the holding and is controlling.controlling.

Equal Protection ClauseEqual Protection Clause

““protects persons not groups”protects persons not groups” Adarand Adarand and using race “only and using race “only

for the most compelling for the most compelling reasons”reasons”

Have to assess the justificationHave to assess the justification Remember context’s importanceRemember context’s importance

Narrow Tailoring as Applied to Narrow Tailoring as Applied to the Law Schoolthe Law SchoolRace-Conscious ProgramRace-Conscious Program Means closely fitting the compelling goal Means closely fitting the compelling goal No quota systems (looked at the No quota systems (looked at the rangerange of increase to show it was of increase to show it was

inconsistent w/ a quota)inconsistent w/ a quota) Race a “plus” factorRace a “plus” factor Flexible and individualizedFlexible and individualized Allows competitionAllows competition Does not unduly harm any racial groupDoes not unduly harm any racial group Limited in time, which can be met by sunset provisions and periodic Limited in time, which can be met by sunset provisions and periodic

reviews to determine its necessityreviews to determine its necessity Minimum goalsMinimum goals (SOME attention to numbers) v. specific number (SOME attention to numbers) v. specific number No limit on what is “diverse”No limit on what is “diverse” Chief Justice: Chief Justice: Believed the law school program hid its attempt to obtain racial balance and Believed the law school program hid its attempt to obtain racial balance and

cited admissions data to show the law school discriminates but admitted cited admissions data to show the law school discriminates but admitted the number of underrepresented minority students who enroll at the law the number of underrepresented minority students who enroll at the law school varies and differs from their representation in the applicant poolschool varies and differs from their representation in the applicant pool

Kennedy:Kennedy:““race is likely outcome determinative of many members of minority groups”race is likely outcome determinative of many members of minority groups”*Majority ultimately disagrees w/ the petitioner arg. That race-neutral means *Majority ultimately disagrees w/ the petitioner arg. That race-neutral means

exist to obtain the educational benefits. It does not require exhaustion of exist to obtain the educational benefits. It does not require exhaustion of all race-neutral means just a good-faith consideration of workable all race-neutral means just a good-faith consideration of workable alternatives.alternatives.

Lempert StudyLempert Study

Lempert Survey Supporting Lempert Survey Supporting the Law School the Law School Method:Method: Mailed to 755 African Americans, 300 Mailed to 755 African Americans, 300

Latino, 60 Native American, 154 Asian Latino, 60 Native American, 154 Asian Americans, and 927 whites (stratified Americans, and 927 whites (stratified random sample of whites)-- Sent 3 mailings random sample of whites)-- Sent 3 mailings and telephoned as a reminderand telephoned as a reminder

Surveyed all of Michigan’s living Asian Surveyed all of Michigan’s living Asian American, Latino, Native American, and American, Latino, Native American, and African American graduates through 1996African American graduates through 1996

7-page questionnaire studied aspects of 7-page questionnaire studied aspects of the alumni’s professional experiencethe alumni’s professional experience

Participants:Participants: 51.4% of the minority alumni (around the 51.4% of the minority alumni (around the

same number for each group)same number for each group) 61.9% of the white alumni61.9% of the white alumni No statistically significant difference in No statistically significant difference in

response rates of whites and minorities response rates of whites and minorities among 1990s graduates.among 1990s graduates.

-Self-Selection Bias?-Self-Selection Bias?

ResultsResults

1. Minority and white alumni differ 1. Minority and white alumni differ somewhat in their initial and current somewhat in their initial and current job choices, but achievements are job choices, but achievements are similar across time. Few differences similar across time. Few differences are statistically significant.are statistically significant.

2. Undergraduate GPA and LSAT 2. Undergraduate GPA and LSAT correlate with law school grades but correlate with law school grades but do not appear to have a relationship do not appear to have a relationship to achievement after law school, to achievement after law school, whether achievement is measured whether achievement is measured by career satisfaction, income, or by career satisfaction, income, or service contributions.service contributions.

Bar PassageBar Passage

Clearly, almost all minority Clearly, almost all minority respondents passed the respondents passed the bar in at least one state. bar in at least one state. Many passed it in more Many passed it in more than one state. than one state.

Of the small percentage Of the small percentage that did not, we do not that did not, we do not know how many began know how many began their careers in their careers in employment not requiring employment not requiring bar membership and how bar membership and how many failed.many failed.

But as a group, these people But as a group, these people are actually somewhat are actually somewhat more satisfied with their more satisfied with their non-law careers than the non-law careers than the respondents who are respondents who are members of the bar.members of the bar.

No statistically significant No statistically significant difference between white difference between white alumni and minority alumni alumni and minority alumni who passed the barwho passed the bar

Careers of 1970 GraduatesCareers of 1970 Graduates

Period-Period--Highly segregated by race-Highly segregated by race Different career paths between Different career paths between

minority and white alumniminority and white alumni Majority of white graduates Majority of white graduates

began at a firm while the began at a firm while the majority of minority graduates majority of minority graduates began in government, public began in government, public interest, of legal services work.interest, of legal services work.

Current Careers of 1970 Current Careers of 1970 GraduatesGraduates Most minority graduates Most minority graduates

are not in private practice, are not in private practice, and many have never and many have never worked in private practice. worked in private practice. Yet more work in this Yet more work in this single setting than in any single setting than in any other.other.

About one half of those in About one half of those in government have jobs with government have jobs with the federal government. the federal government. Many have positions with Many have positions with high levels of high levels of

responsibilityresponsibility. .

Career Satisfaction of 1970 Career Satisfaction of 1970 GraduatesGraduates Measured on a 7-point Measured on a 7-point

scale and asked about scale and asked about satisfaction with their satisfaction with their work’s intellectual work’s intellectual challenge, relationship challenge, relationship with co-workers, with co-workers, income, etc.income, etc.

Those described as Those described as “satisfied” scored 1 of “satisfied” scored 1 of the 3 highest scores.the 3 highest scores.

Minority graduates are Minority graduates are as satisfied as the white as satisfied as the white graduatesgraduates..

The only area showing a The only area showing a statistically significant statistically significant difference is work’s difference is work’s social value. Minorities social value. Minorities are more satisfied with are more satisfied with their work’s social value.their work’s social value.

Income of 1970 GraduatesIncome of 1970 Graduates

Statistically Statistically significant significant differencedifference

But the minority But the minority graduates are graduates are clearly clearly successful. Their successful. Their median income median income places them in places them in the top 8% of the top 8% of total household total household incomes in the incomes in the U.S.U.S.

Some of the Some of the income difference income difference could be due to could be due to the differing the differing career pathscareer paths

Service of the 1970 GraduatesService of the 1970 Graduates

The only The only statistically statistically significant significant difference difference between between white and white and minority minority alumni is the alumni is the level of level of participation participation on nonprofit on nonprofit boards.boards.

But…But…

A few questions to consider:A few questions to consider:To what extent can we rely on To what extent can we rely on

self-report on this particular self-report on this particular matter? matter?

What is categorized as being a What is categorized as being a mentor? mentor?

Do some of these firms require X Do some of these firms require X number of community service number of community service hrs.?hrs.?

Careers of 1980 GraduatesCareers of 1980 Graduates

Period-Period--Growth of large firms-Growth of large firms-Expansion in gap between starting salaries in private -Expansion in gap between starting salaries in private

firms and in government and legal services. firms and in government and legal services. Shift in jobs of minority graduates:Shift in jobs of minority graduates:

From 1/3 taking jobs in private practice to 3/4 From 1/3 taking jobs in private practice to 3/4 AndAnd

From small and mid-sized firms to larger firmsFrom small and mid-sized firms to larger firms Decline in proportion of both minority and white Decline in proportion of both minority and white

graduates taking initial government jobs but graduates taking initial government jobs but minorities still more likely than whites to take an minorities still more likely than whites to take an initial government positioninitial government position

Differences between initial career choices of Differences between initial career choices of minority and white graduates is smaller.minority and white graduates is smaller.

Current Careers of 1980 Current Careers of 1980 GraduatesGraduates-fewer still in private practice-fewer still in private practice-40% of both whites and minorities who had -40% of both whites and minorities who had

begun in private practice had left for begun in private practice had left for business jobs or (fewer) government jobs.business jobs or (fewer) government jobs.

-More whites than minorities work in larger -More whites than minorities work in larger firms (What are some potential firms (What are some potential explanations for this result?)explanations for this result?)

-minority lawyers more likely to work in -minority lawyers more likely to work in government if not in private practice government if not in private practice

-white lawyers more likely to work in business -white lawyers more likely to work in business if not in private practiceif not in private practice

-private practice still most common single -private practice still most common single work setting for both groupswork setting for both groups

Career Satisfaction of the Career Satisfaction of the 1980 Graduates1980 Graduates Majority of minority graduates Majority of minority graduates

satisfiedsatisfied No significant differences No significant differences

between minorities and whitesbetween minorities and whites Striking differences between Striking differences between

graduates of any race in graduates of any race in private practice (less satisfied) private practice (less satisfied) and graduates in other and graduates in other settings (more satisfied)settings (more satisfied)

Similar result as with the 1970 Similar result as with the 1970 graduates—more minorities graduates—more minorities than whites satisfied with the than whites satisfied with the value of their work to societyvalue of their work to society

Income of the 1980 GraduatesIncome of the 1980 Graduates

Even in spite of their youth, the Even in spite of their youth, the minority graduate’s average minority graduate’s average income is in the top 7% of income is in the top 7% of household incomes. household incomes.

White graduates have higher White graduates have higher incomes on average, but much incomes on average, but much of this difference is due to the of this difference is due to the high incomes of those in large high incomes of those in large firms. More white graduates firms. More white graduates than minority graduates work than minority graduates work in large firms.in large firms.

Service of 1980 GraduatesService of 1980 Graduates

Though the difference is not Though the difference is not statistically significant, minority statistically significant, minority graduates perform somewhat graduates perform somewhat more community work.more community work.

Careers of 1990-1996 Careers of 1990-1996 GraduatesGraduates Period-Period--More white and minority students -More white and minority students

taking judicial clerkships.taking judicial clerkships.-Many larger firms were hiring fewer -Many larger firms were hiring fewer

new lawyer than they had hired in new lawyer than they had hired in the 1980s.the 1980s.

Most began work in a private firm.Most began work in a private firm. Of those who did not, again more Of those who did not, again more

minorities than whites began work in minorities than whites began work in government. government.

Current Careers of 1990-1996 Current Careers of 1990-1996 Graduates (as of 1997)Graduates (as of 1997) Most of those who began working at Most of those who began working at

a large firm are no longer there. a large firm are no longer there. (53% of white graduates and 65% of (53% of white graduates and 65% of minority graduates have left their minority graduates have left their initial position. Of course, this initial position. Of course, this occurrence could be due to many occurrence could be due to many external/personal factors.)external/personal factors.)

Nonetheless, large numbers do Nonetheless, large numbers do continue to work in the firms, moving continue to work in the firms, moving from firm to firm.from firm to firm.

Career Satisfaction of 1990-Career Satisfaction of 1990-1996 Graduates1996 Graduates Majority are satisfied.Majority are satisfied. Fewer minorities than whites Fewer minorities than whites

report this, but this number is report this, but this number is not significant.not significant.

Difference: Whites are Difference: Whites are significantly more likely than significantly more likely than minorities to express high minorities to express high satisfaction with their co-satisfaction with their co-workers.workers.

Income of 1990-1996 Income of 1990-1996 GraduatesGraduates

Both minorities and whites’ Both minorities and whites’ incomes place them in the top incomes place them in the top 15% of American households.15% of American households.

But, these graduates have more But, these graduates have more debt than graduates of previous debt than graduates of previous decades. Minority graduates decades. Minority graduates have a higher mean educational have a higher mean educational debt than white graduates.debt than white graduates.

Service of 1990-1996 Service of 1990-1996 GraduatesGraduates Even in their first years out of Even in their first years out of

law school, many have served law school, many have served on the boards of nonprofit on the boards of nonprofit organizations. organizations.

Statistically significant difference Statistically significant difference between minorities’ and whites between minorities’ and whites amount of pro bono work. M=90 amount of pro bono work. M=90 for minorities and M=59 for for minorities and M=59 for whites, p<.05. whites, p<.05.

Differences among Minority Differences among Minority GroupsGroups Few differences among the 3 minority Few differences among the 3 minority

groups analyzed.groups analyzed. African Americans and Latinos have made African Americans and Latinos have made

some different initial career choices but some different initial career choices but these patterns have changed. None of the these patterns have changed. None of the differences are significant.differences are significant.

For the most part, there are so few Native For the most part, there are so few Native American respondents that virtually no American respondents that virtually no differences could be statistically significant. differences could be statistically significant. The 1980 Native American graduates, The 1980 Native American graduates, however, are more satisfied with their however, are more satisfied with their careers than the African American and careers than the African American and Latino respondents.Latino respondents.

Clients’ Race and Ethnicity Clients’ Race and Ethnicity

Many of the Many of the clients for private clients for private practice are practice are white.white.

Regardless of Regardless of race, alumni race, alumni serve clients of serve clients of

their own race.their own race. Yet, for example, Yet, for example, African African Americans in Americans in predominantly predominantly white firms serve white firms serve fewer African fewer African American clients American clients than African than African Americans in Americans in largely African largely African American firms.American firms.

Clients’ Race and Ethnicity Clients’ Race and Ethnicity (continued)(continued) In one sense, this result is a In one sense, this result is a

success of the Michigan success of the Michigan program because the program program because the program has increased the number of has increased the number of graduates serving minorities.graduates serving minorities.

The minority graduates also The minority graduates also serve more low and middle serve more low and middle income individuals than white income individuals than white graduates do. graduates do.

Comparing LSATs and GPAs to Comparing LSATs and GPAs to Achievements before and after Achievements before and after Graduation using IndexesGraduation using Indexes Ranked respondents on these Ranked respondents on these

dimensions such as LSAT and GPA dimensions such as LSAT and GPA and then added their rankings to and then added their rankings to obtain their score on the indexobtain their score on the index

What did they find?What did they find? Strong statistically significant Strong statistically significant

relationship between GPA and LSAT relationship between GPA and LSAT and grades in law schooland grades in law school

No significant relationship between No significant relationship between GPA or LSAT and student GPA or LSAT and student achievements following graduation. achievements following graduation.

What Are the Strengths and What What Are the Strengths and What Could We Have Done Differently?Could We Have Done Differently?

Strengths:Strengths: Assembled more information about minority alumni than anyone elseAssembled more information about minority alumni than anyone else Examined whether there was a difference in respondents and non-Examined whether there was a difference in respondents and non-

respondentsrespondents Grouped graduates by decade, which probably helped control for period Grouped graduates by decade, which probably helped control for period

effectseffects Though the study clumped minority alumni together, it examined Though the study clumped minority alumni together, it examined

responses to see if there were any statistically significant differences responses to see if there were any statistically significant differences between thembetween them

Potential Weaknesses:Potential Weaknesses: Generalizability-Though this was done to assess the efficacy of the Generalizability-Though this was done to assess the efficacy of the

University of Michigan Law School program, it would be interesting to see University of Michigan Law School program, it would be interesting to see if there is something particular about those graduates and the applicability if there is something particular about those graduates and the applicability of these results to other law schools and their graduates.of these results to other law schools and their graduates.

Potential for self-report biasPotential for self-report bias Little data on the job settings themselves i.e. their requirements and how Little data on the job settings themselves i.e. their requirements and how

that may have affected the resultsthat may have affected the results Included all minority alumni regardless of whether race made a difference Included all minority alumni regardless of whether race made a difference

in admissions decisionsin admissions decisions Did not focus on gender differences, though women represent a larger Did not focus on gender differences, though women represent a larger

proportion of minority alumni than of white alumniproportion of minority alumni than of white alumni

Some of the Other ExpertsSome of the Other Experts

Steele Steele -used SAT findings to argue against the value of -used SAT findings to argue against the value of LSATs and ACTs in evaluating merit, particularly LSATs and ACTs in evaluating merit, particularly for the 3 minority groups, because they measure for the 3 minority groups, because they measure aptitude rather than intelligence and are aptitude rather than intelligence and are experienced differently by minorities. (This is experienced differently by minorities. (This is called stereotype threat because these minorities called stereotype threat because these minorities are afraid of affirming the stereotypes, which are afraid of affirming the stereotypes, which causes quite a bit of pressure and distraction. He causes quite a bit of pressure and distraction. He used different descriptions of a test to minorities used different descriptions of a test to minorities and whites and found that when a test was and whites and found that when a test was described as one that “tests ability” rather than as described as one that “tests ability” rather than as a test for problem solving that had nothing to do a test for problem solving that had nothing to do with ability, minorities did worse than whites. with ability, minorities did worse than whites. The experience is even more salient to thoseThe experience is even more salient to thoseminorities who are more concerned about minorities who are more concerned about what they score. The same result has occurred what they score. The same result has occurred with women taking math tests)with women taking math tests)

Some of the Other Experts Some of the Other Experts (continued)(continued)

FeldmanFeldman-argued against the idea that differences on standardized-argued against the idea that differences on standardizedtests are due to a genetic variation in performance tests are due to a genetic variation in performance and therefore environmental interventions like affirmative action and therefore environmental interventions like affirmative action programs are unnecessaryprograms are unnecessary-noted that race is a social, not biological, construct-noted that race is a social, not biological, construct-noted that geneticists use heritability estimates to assess the -noted that geneticists use heritability estimates to assess the

probable effectiveness of selective breeding while holding the probable effectiveness of selective breeding while holding the environment constant but do not use them to assess the effect of environment constant but do not use them to assess the effect of environmental interventionenvironmental intervention

-argued that one should remember the role environment may have -argued that one should remember the role environment may have played in contributing to test score by referencing studies played in contributing to test score by referencing studies showing that almost almost all differences in test scores between showing that almost almost all differences in test scores between black and white children can be explained by economic and black and white children can be explained by economic and social differences (environmental differences)social differences (environmental differences)

ProblemsProblems

SteeleSteele-Are the SAT, LSAT, and ACT -Are the SAT, LSAT, and ACT

really that similar? (LSATs have really that similar? (LSATs have been known to predict law been known to predict law school performance better than school performance better than SATs predict undergraduate SATs predict undergraduate performance, though they are performance, though they are still not as predictive as some still not as predictive as some would like to believe.)would like to believe.)

Suggestions for Future Suggestions for Future StudiesStudies One of the issues Lehman considers is whether the One of the issues Lehman considers is whether the

minority success is attributable to affirmative action. minority success is attributable to affirmative action. He doubts that employers would retain these He doubts that employers would retain these employees if their performance were sub par. It employees if their performance were sub par. It would be interesting to do an experimental study on would be interesting to do an experimental study on this matter. In judging deficiencies about the quality this matter. In judging deficiencies about the quality of people’s work, perhaps researchers could do a of people’s work, perhaps researchers could do a blind experiment if they could obtain data based on blind experiment if they could obtain data based on a person’s race and previous evaluations and then a person’s race and previous evaluations and then conduct a study where they present an evaluation conduct a study where they present an evaluation sheet containing various information but manipulate sheet containing various information but manipulate the race and gender. the race and gender.

Future studies of a similarly extensive nature on Future studies of a similarly extensive nature on gender differences and how they interact with race gender differences and how they interact with race in a job setting could also be useful.in a job setting could also be useful.

Sugrue StudySugrue Study

A Compelling Need: The A Compelling Need: The Sugrue StudySugrue Study

Thomas Sugrue’s study was Thomas Sugrue’s study was submitted as one of the many submitted as one of the many that would illustrate “diversity as that would illustrate “diversity as a compelling need” for the a compelling need” for the admissions proceduresadmissions procedures Sugrue’s study looked at Michigan Sugrue’s study looked at Michigan

and metropolitan Detroit school and metropolitan Detroit school systems…determined they were systems…determined they were segregatedsegregated

The Pool Studied…The Pool Studied…

Sugrue focused on Michigan Sugrue focused on Michigan and Detroit in particular because and Detroit in particular because “the University of Michigan “the University of Michigan draws nearly two-thirds of its draws nearly two-thirds of its students from its home state students from its home state and over half of its students and over half of its students from the metropolitan Detroit from the metropolitan Detroit area.”area.” This makes sense b/c he wants to This makes sense b/c he wants to

get the right pool of people get the right pool of people

Sugrue Study mechanics…Sugrue Study mechanics… Associate Professor of History Associate Professor of History

and Sociology at the UPennand Sociology at the UPenn Born and educated in DetroitBorn and educated in Detroit

Qualitative study that had some Qualitative study that had some quantitative basisquantitative basis

9 Major sections in the study 9 Major sections in the study Topics range from Racial Topics range from Racial

Patterns in the USA to Patterns in the USA to Wealth and Health Wealth and Health Differences Between B/W Differences Between B/W

Looking to show pervasive Looking to show pervasive separations and differences separations and differences between B/W [in Michigan]between B/W [in Michigan]

Section 9: Primary and Section 9: Primary and Secondary School EducationSecondary School Education

Looking inward, Sugrue finds that the racial proportions of Looking inward, Sugrue finds that the racial proportions of the State of Michigan are not reflected in the racial the State of Michigan are not reflected in the racial proportions of Detroit area high schools…proportions of Detroit area high schools…

Student Breakdown for 3 Counties in Detroit Area

66.4

29.9

1.7

1.9

0.6

White

Black

Hispanic

Asian

AI/E/A

What the #s are…What the #s are…

These students attend school in 83 These students attend school in 83 separate school districts. separate school districts. In 60 of the 83 Detroit area school In 60 of the 83 Detroit area school

districts, the black student population is districts, the black student population is three percent or lessthree percent or less

Another 7 districts have black student Another 7 districts have black student populations under 10%.populations under 10%.

Altogether 90.7% of Detroit area white Altogether 90.7% of Detroit area white students attend schools in these districts. students attend schools in these districts.

82% of Detroit-area blacks attend 82% of Detroit-area blacks attend schools in only three nearly all-black schools in only three nearly all-black school districts -- Detroit, Highland Park, school districts -- Detroit, Highland Park, and Inkster. and Inkster.

Section 10: Diversity and Section 10: Diversity and Difference: Race, Ethnicity, Difference: Race, Ethnicity, And OpportunityAnd Opportunity The “best” workforce is a The “best” workforce is a

diverse workforce…diverse workforce… Sugrue looks at the changes in Sugrue looks at the changes in

the workforce in Michigan over a the workforce in Michigan over a 40 year period…at best it’s a 40 year period…at best it’s a “promising mixed bag”“promising mixed bag” Some employers still discriminate, Some employers still discriminate,

but others create and reward diverse but others create and reward diverse settingssettings

Alert: there is a typo! These figures below should be for 1970-90

Sugrue’s Conclusion…i.e. Reasons Why We Sugrue’s Conclusion…i.e. Reasons Why We Need Diversity in Schools…Need Diversity in Schools… The costs of segregation are “profound” The costs of segregation are “profound”

for minorities and non-minorities alike. for minorities and non-minorities alike. Diversity in school and work is good! Diversity in school and work is good!

Residential and educational distance Residential and educational distance fosters and hardens misconceptions, fosters and hardens misconceptions, mistrust, and stereotypes.mistrust, and stereotypes. ““Residential segregation has led to a Residential segregation has led to a

concentration of poverty in urban areas and concentration of poverty in urban areas and means that members of minority groups, means that members of minority groups, even those who are considered middle-even those who are considered middle-class, have direct experience with poverty class, have direct experience with poverty and its consequences.”and its consequences.”

Which researchers like Steele would argue Which researchers like Steele would argue produce lower test scores etc. produce lower test scores etc.

Allen/SolorzanoAllen/Solorzano Study Study

The 5 WsThe 5 Ws

Who: Who: Walter Allen and Danny Solorzano, Walter Allen and Danny Solorzano, Professors Professors of Sociology, UCLAof Sociology, UCLA

What: A campus climate study of the University of What: A campus climate study of the University of Michigan Law School and it's major feeder Michigan Law School and it's major feeder institutions….Commissioned by the institutions….Commissioned by the IntervenorsIntervenors in in the Grutter casethe Grutter case 41 Black, Chicano/a, Latino/a, Asian American, 41 Black, Chicano/a, Latino/a, Asian American,

and other students (including has, college and and other students (including has, college and UMich law students), along with three pro-UMich law students), along with three pro-affirmative action coalitions, United for Equality affirmative action coalitions, United for Equality and Affirmative Action (UEAA), The Coalition to and Affirmative Action (UEAA), The Coalition to Defend Affirmative Action By Any Means Defend Affirmative Action By Any Means Necessary (BAMN), and Law Students for Necessary (BAMN), and Law Students for Affirmative Action (LSAA). Affirmative Action (LSAA).

The 5 Ws…cont’dThe 5 Ws…cont’d

When: April and May 2000When: April and May 2000

Where: College Campuses…chosen feeder Where: College Campuses…chosen feeder schools to UMich Law: Berkeley, Harvard, schools to UMich Law: Berkeley, Harvard, Michigan State, UMich AND UMich LawMichigan State, UMich AND UMich Law

Why: They wanted to see whether there was Why: They wanted to see whether there was racism on campuses and show that “if blacks, racism on campuses and show that “if blacks, Latinos, and other students of color continue Latinos, and other students of color continue to be targets of discrimination and are denied to be targets of discrimination and are denied equal opportunity to achieve, then there equal opportunity to achieve, then there continues to be a need for affirmative action continues to be a need for affirmative action and either programs to promote fairness and and either programs to promote fairness and equality” equality”

So what’d they do out there?So what’d they do out there?

They used a “multi-method research They used a “multi-method research design” which collected data from design” which collected data from the following sources:the following sources: Focus groupsFocus groups Personal interviewsPersonal interviews SurveysSurveys University recordsUniversity records NewspapersNewspapers Natural observationsNatural observations ““and other sources”and other sources”

So what’d they do out there?So what’d they do out there?

3 guiding questions:3 guiding questions: Is the campus climate at UMich Law Is the campus climate at UMich Law

hostile towards female, Black, Latino, hostile towards female, Black, Latino, and other students of color?and other students of color?

Are the climates of key undergrad Are the climates of key undergrad institutions from which UMich Law institutions from which UMich Law recruits hostile towards female, Black, recruits hostile towards female, Black, Latino, and other students of color?Latino, and other students of color?

Do hostile campus climates have Do hostile campus climates have negative effects on academic negative effects on academic performance, goals, and opportunities of performance, goals, and opportunities of women and students of color who aspire women and students of color who aspire to become attorneys?to become attorneys?

Ok really…what’d they do?Ok really…what’d they do?

At UMich: 3 days of researchAt UMich: 3 days of research Focus groups with undergrads and law Focus groups with undergrads and law

studentsstudents And supplemental survey data collectedAnd supplemental survey data collected

Recruiting methods: newspaper Recruiting methods: newspaper announcements, personal contacts, announcements, personal contacts, mass electronic mailings, sign-up mass electronic mailings, sign-up listslists

Sample is non-random…purposely Sample is non-random…purposely diverse by gender and race across diverse by gender and race across different campusesdifferent campuses

Ok really…what’d they do?Ok really…what’d they do?

Sample is non-random…purposely Sample is non-random…purposely diverse by gender and race across diverse by gender and race across different campusesdifferent campuses

At other Schools: 1-3 days of researchAt other Schools: 1-3 days of research 12 focus groups in total 12 focus groups in total

E.g.: Harvard had 2 focus groupsE.g.: Harvard had 2 focus groups Interviews with “3 additional undergrads”Interviews with “3 additional undergrads”

A total of 68!! students participatedA total of 68!! students participated Isn’t this too small to persuade a court that Isn’t this too small to persuade a court that

there is a really hostile environment?there is a really hostile environment?

Ok really…what’d they do?Ok really…what’d they do?

Focus group interview covered 7 areas of inquiry:Focus group interview covered 7 areas of inquiry:

1. The types of racial discrimination experienced by students.

2. How students responded to racial discrimination.

3. How racial incidents affected the students, including their ability to perform academically.

4. The advantages of having a critical mass of students of color on campus.

5. Whether the racial climate for students of color has improved or worsened in the past few years.

6. Whether they would recommend their college to students of color.

7. Advice for the study.

Ok really…what’d they do?Ok really…what’d they do? Harvested a variety of student commentaryHarvested a variety of student commentary

On Departmental Dynamics:On Departmental Dynamics: An Asian American female said:

“Being a woman and then being a woman of color was likeprobably the most horrible experience in [the] College ofEngineering. Men have no respect for you whatsoever.” On Classroom Dynamics:

A Latino student said: “One time in class we were discussing Maxine HongKingston . . . issues on some of her books . . . BetweenKoreans and Chinese people . . . and [the teachingassistant’s] response was, ‘But how can you tell?’ . . . ‘Theyall look the same anyway’ . . . and so everyone was so inshock, and I don’t think it ever happened to any of usbefore. . . . No one tried to argue it. Everyone . . . got silent. We

didn’t know what to do.”

At UMich Law…At UMich Law…

They had the same lines of They had the same lines of inquiryinquiry

Same “purposive sample”Same “purposive sample” Recruited from email and Recruited from email and

newspaper adsnewspaper ads 5 focus groups and 1 interview5 focus groups and 1 interview

Total of 31 students participatedTotal of 31 students participated

Allen/Solorzano ConclusionsAllen/Solorzano Conclusions

UMich and other schools have UMich and other schools have campus environments where racism campus environments where racism (overt and covert) is pervasive(overt and covert) is pervasive

Pervasive racism leads to lower Pervasive racism leads to lower performance by minoritiesperformance by minorities

An environment with pervasive An environment with pervasive racism means schools should keep racism means schools should keep Affirmative Action policies…Affirmative Action policies…

Can you find the gap in that Can you find the gap in that argument? I was sure you would…argument? I was sure you would…

The Good…The Good…

The study is based on real people…The study is based on real people…the court allowed the intervenors b/c the court allowed the intervenors b/c they were real people representing they were real people representing real interests so this study gives real interests so this study gives more of that personal testimony that more of that personal testimony that was deemed importantwas deemed important

They did go to the right placesThey did go to the right places Support their opinion with extensive Support their opinion with extensive

evidenceevidence Audre Lorde, bell hooks, Claude Steele, Audre Lorde, bell hooks, Claude Steele,

Chester PierceChester Pierce

The Bad and The Ugly…The Bad and The Ugly… This is more of a paper/thesis that a This is more of a paper/thesis that a

comprehensive social science study comprehensive social science study What’d they control for? No evidence on What’d they control for? No evidence on

how the gender and race choices were how the gender and race choices were mademade Factors like neighborhood you grew up in might Factors like neighborhood you grew up in might

make a difference in how you feel about thingsmake a difference in how you feel about things Time/Period effectTime/Period effect

Seniors and Sophomores not the same Seniors and Sophomores not the same perspective…nostalgia vs so. slump/ stress perspective…nostalgia vs so. slump/ stress

The numbers!The numbers! Just not enough participants Just not enough participants

Self-Selected group of students who are gonna Self-Selected group of students who are gonna participate in a focus group about race on campusparticipate in a focus group about race on campus

Final analysisFinal analysis

Makes a better case for making Makes a better case for making campuses better than saying that campuses better than saying that UMich Law needed Affirmative UMich Law needed Affirmative ActionAction

But, Grutter et al. didn’t win so the But, Grutter et al. didn’t win so the court must have believed that the court must have believed that the only way to make campuses better is only way to make campuses better is to get more minoritiesto get more minorities

What do you think?What do you think?