Experts in Grutter v. Bollinger and Gratz v. Bollinger

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Affirmative Action
Experts in Grutter v. Bollinger and Gratz v.
Bollinger
March 21, 2007
Viral Gandhi
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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
  achievediversity which has the potential to
  enrich everyones 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 (contd)
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 Schools 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 (contd)
The Holding

• The Law School has a compelling interest in
  attaining a diverse student body
• The Law Schools 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
  applicants race or ethnicity the defining
  feature of his or her application
• The importance of this individualized
  consideration is paramount.

• Framework
• 1) Is the Law Schools 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?

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Affirmative Action
Evidence Social Science Experts
Summary
Claude Steele
Thomas Sugrue
Eric Foner

• Historian who describes history of race relations
  as a struggle of continual struggles in which
  rights were sometimes won and sometimes lost
• Believes that differences in outlook and
  perception of issues between whites and nonwhites
  results from this distinct historical experience

• Professor of psychology who questions usefulness
  of standardized tests
• Tests do not measure innate ability or
  achievement
• SAT not a good predictor of academic success
• Stereotype threat could result in depressed
  scores from minority students

• Professor of history who describes the patterns
  and costs of racial separation
• Whites and minorities live in segregated
  residential areas
• Different life experiences of groups results in
  varying political and social views and gaps in
  health, wealth, poverty

Kent Syverud
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

• 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

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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 (1987-1991), and University of
  Washington (1973-1987)
• Research Scientist for the Institute for Social
  Research (1989-1991)
• 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 (contd)
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 (contd)
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 problem-solving
• Non-Diagnostic Challenge Test presented as both
  a problem-solving tool and a challenge

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Affirmative Action
Claude Steele (contd)
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 (contd)
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
• Isnt 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 (contd)
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 Michigans 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 Detroits 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 (contd)
Findings
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Affirmative Action
Thomas Sugrue (contd)
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 Columbias 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 (contd)
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. Foners testimony chronicles how the
  meaning of race and the status and experience
  of racial minorities has 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 (contd)
Criticism

• Relevance of historical context?
• These differences in outlook and perceptionstem
  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 (contd)
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 (attorneys fess in civil
  procedure)

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Affirmative Action
Kent Syverud (contd)
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 professors
  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
  (1987-1988), 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 (contd)
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 (contd)
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 Courts Use of Social Science Research

• 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 Courts 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

• Reminder The two-step framework for the Courts
  opinion was
• 1) Is the Law Schools 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?

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Affirmative Action
The Courts Use of Social Science Research
(contd)
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 Courts
  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