In 2003, two cases came before the Supreme Court that presented the stiffest challenge to affirmative action in decades. A White applicant to the University of Michigan's law school sued the school, claiming that she had been rejected on the basis of her race. Similarly, two White applicants to the University of Michigan's undergraduate school also sued, arguing the point system used by the university to assess applicants was unconstitutional.
Though the Supreme Court struck down the University of Michigan's undergraduate point system in Gratz v. Bollinger, the court upheld in Grutter v. Bollinger the law school's more informal "holistic" method of reviewing applications, which considers grades, test scores and recommendations, as well as race.
Using Grutter as a framework, universities have sought to strike a delicate balance between recruiting a diverse pool of applicants while adhering to the legal guidelines drawn by the high court.
Since Grutter, universities have experimented with various methods of recruiting minority students, says Richard Kahlenberg, a senior fellow at the Century
Foundation. Some schools automatically admit students from the top 10 percent of their class, which tends to indirectly produce diverse students since most high schools are fairly segregated, he says.
Another option is the "socio-economic model," in which preference is given to low-income and working-class students of all races.
"This notion has no legal impediment to it," Kahlenberg says. "It's clear that even the most conservative justices like Scalia and Thomas are supportive of the socioeconomic model. And also it has a lot more political support than racial or ethnic-based affirmative action."
Kahlenberg points out that a recent survey found that Americans oppose race-based affirmative action by a 2-1 margin but support income-based affirmative action by the same margin.
But talk of socio-economic preferences masks the fact that racial preferences are still alive and well in college admissions, says Richard Sander, a professor at UCLA's school of law who specializes in the legal issues surrounding affirmative action.
"A lot of schools talk about socioeconomic preferences, but they're still not used by most schools, and the schools that do use them tend to put very little weight on socio-economic factors," Sander says.
Since the Gratz and Grutter decisions, he says, universities actually have increased the use of race-conscious affirmative action in admissions decisions.
"They moved in the opposite direction than O'Connor was implying," he says.
Many institutions simply interpreted the ruling as a covert endorsement, rather than repudiation, of race-based affirmative action.
"Grutter and Gratz collectively were interpreted by university administrators as saying, 'Don't worry, we're not going to actively oversee what you're doing,'" Sander says.
Since the Grutter decision, many states have passed ballot initiatives outlawing the use of affirmative action. California's Proposition 209, passed in 1996, amended the state's constitution to prohibit public institutions from using race or gender preferences.
But even if such initiatives pass, many universities don't feel legally bound to comply, according to Sander.
"Nowhere in the country has there been a suit enforcing these propositions against a particular university's policies," he says.
Many universities, he says, rather than relying on strict quotas, still rely on what he calls "informal" point systems.
"At some of the larger universities, they've adopted what they call a holistic system that in theory takes a lot of different factors into account," Sander says. "But in reality, they rely heavy on race."
Some universities may look at White or Black applications separately, without directly comparing the two, Sander says. …