From Comparing Plus Factors to Context Review: The Future of Affirmative Action in Higher Education

Article excerpt

I. INTRODUCTION

In all but the most clear-cut situations, admissions decisions at colleges and universities are dependent upon the methodology of the school's admissions committee. Admissions methodologies vary, but models include the University of Michigan undergraduate program's mechanized approach used until 2003,' the University of Michigan Law School's individualized admission technique,2 and Dartmouth College's undergraduate contextual review.3 To illustrate, assume that one applicant, Jorge,4 a Latino student from an underprivileged neighborhood in South Central Los Angeles, had a 3.8 GPA, a 1050 on the SAT,5 a 3 on the Physics AP6 exam, and was involved in almost no extra-curricular activities. Another hypothetical applicant, Meredith, a white student from a rural Kansas farm, attended a regional magnet school, had a 3.4 GPA in some honors classes, a 1300 on the SAT, and two scores of 4 on AP exams. She was the president of two student organizations and the cofounder of a program that travels to schools educating other students about safer sex. The various admissions techniques differ in the perspective through which they view these applicants.

Michigan Law School's holistic, individualized admissions technique assesses the multiple factors of both students' applications that would contribute unique characteristics to student body diversity at the institution.7 In this technique, admissions officers look at various "plus factors," unique or interesting qualities in each application, and decide from there which qualities might outweigh others to help add to and diversify the incoming class.8 While the individualized admission technique can consider membership in a racial group, it also assesses other qualities like languages spoken; unique experiences; or even distinctive backgrounds, like growing up on a farm, and no one quality will trump others in assembling the class.9

Another methodology available to admissions officers is one that courts have not yet reviewed: "contextual review."10 Under this model, officers evaluate applicants within their social and educational contexts." They make note of whether the applicants took advantage of everything available to them, for instance honors classes or school activities, and any mitigating circumstances that may impede their education like extensive child care duties or long commutes to school.12 Officers then base their admission recommendations upon whether the applicants truly excelled within their circumstances; were exceptional for their environments; demonstrated intangible characteristics like intellectual curiosity, open-mindedness and motivation; and had to overcome whatever challenging obstacles were thrown in their paths.13 Pivotal to contextual review is the lack of a clear hierarchy of preferred characteristics; instead, the review process is a complex system that rejects the idea that two applicants can be directly compared to each other.14 Under this postmodern approach, which recognizes that applicants' backgrounds vary greatly, applications literally cannot be compared.15

In 2003, the Supreme Court upheld the holistic, individualized admissions technique in the 5-4 decision of Grutter v. Bollinger.'6 However, Justice O'Connor's departure from the Supreme Court in 2005 shifted the Court's crucial swing vote on the topic of affirmative action to Justice Kennedy.17 Kennedy, a dissenter in Grutter, views the narrowly tailored technique of individualized consideration differently than the O'Connor majority in Grutter.1* Thus, while Grutter remains good law, the individualized admissions technique may not survive judicial review by the Roberts Court. Risk-adverse admissions officers may opt for a constitutionally safer path that does not consider race definitively in admissions decisions. Where Grutter focuses on whether an applicant brings "plus factors19 that would contribute to the diversity of a class-a focus that is problematic for Justice Kennedy20-contextual review rejects any categorization altogether. …