The causation fallacy: Bakke and the basic arithmetic of selective admissions

Michigan Law Review

Volumn 100, Issue 5, 2002, Pages 1045-1106

  Liu, Goodwin ^a  

^a LLP   (United States)

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EID: 0142235854     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290503     Document Type: Article

References (263)

1. See Hopwood v. Texas. 236 F.3d 256, 274-75 (5th Cir. 2000), cert, denied, 121 S. Ct. 2550 (2001); Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996), cert, denied. 518 U.S. 1033 (1996); see also Lutheran Church-Mo. Synod v. FCC, 141 F.3d 344, 354 (D.C. Cir. 1998) (suggesting in dicta that diversity may never constitute a compelling interest).
2. Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188, 1201 (9th Cir. 2000), cert. denied, 121 S. Ct. 2192 (2001); see id. at 1200 n.9 (acknowledging Hopwood as "contrary" authority, but rejecting it as "flaw[ed]").
3. See Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1254 (11th Cir. 2001).
4. Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002).
5. Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000) (upholding affirmative action in University of Michigan undergraduate admissions policy), appeal docketed, Nos. 01-1333, 01-1416, 01-1418 (6th Cir. Mar. 27, 2001).
6. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
7. Although I use the term "minority" to label applicants who benefit from affirmative action and the term "white" to label those who do not, I recognize that some minority applicants do not benefit from affirmative action and that some affirmative action programs may benefit disadvantaged whites. Given this reality, it is probably more precise to use the generic terms "preferred" and "nonpreferred" applicants. But I stick to the terms "minority" and "white" in order to track the usage in common discourse on affirmative action. As Bakke's claim demonstrates, that discourse typically characterizes affirmative action as pitting minority applicants against white applicants in a deep racial conflict. This Article is an attempt to explain and dispel that characterization.
8. The intense competition among selective institutions for academically talented students is a relatively recent phenomenon in American higher education, largely driven by economic, social, legal, and demographic forces that have conspired over the last century to make educational opportunity more desirable and more attainable for an expanding majority of the citizenry. See generally NICHOLAS LEMANN, THE BIG TEST: THE SECRET HISTORY OF THE AMERICAN MERITOCRACY (1999). Until the mid-1900s, elite colleges such as Harvard, Yale, and Princeton "educated the solid, if less industrious, members of America's upper-middle and upper classes, [then] almost exclusively WASP. . . . Academic requirements were modest; students of good character who could pay the tuition were usually admitted." MARCIA GRAHAM SYNNOTT, THE HALF-OPENED DOOR: DISCRIMINATION AND ADMISSIONS AT HARVARD, YALE, AND PRINCETON, 1900-1970, at 4 (1979). At Princeton, for example, "[i]n 1958, about 70 percent of alumni son applications were accepted for the class of 1962, as against only 35 percent of those without Princeton connections." Id. at 221. An alumni son was not required "to compete against non-Princeton sons," but was admitted if his "character record [was] satisfactory" and if the committee could answer just one major question in the affirmative: "Can he be expected to graduate?" The fruits of such preference were seen in the freshman class admitted in 1957: "50% of the bottom quarter, academically speaking, was made up of Princeton sons." Id.; see also id. at 206 ("[A]lumni sons, who were, on the whole, economically and socially upper-middle-class and 'scholastically average' . . . made up about 20 percent of [Harvard's] class of 1951."). It is perhaps unremarkable that criticism of affirmative action has intensified as elite schools have become more selective. See, e.g., Stanley Rothman & Amy E. Black, Who Rules Now? American Elites in the 1990s, SOC'Y, Sept. 1, 1998, at 17 (reporting survey result that "while in 1980, very few whites (less than one in twenty) expressed the view that minority gains came at the expense of whites, almost half our white respondents support that view now"). What is remarkable, however, is evidence that even with affirmative action, the average SAT score of black matriculants at selective schools in 1989 was higher than the average for all matriculants at such schools in 1951. See WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS 30 (1998). Such data put the current affirmative action debate into proper historical perspective. See id. ("The alumni/ae of the 1950s should have no reason to question the qualifications of the black students of today!").
9. The intense competition among selective institutions for academically talented students is a relatively recent phenomenon in American higher education, largely driven by economic, social, legal, and demographic forces that have conspired over the last century to make educational opportunity more desirable and more attainable for an expanding majority of the citizenry. See generally NICHOLAS LEMANN, THE BIG TEST: THE SECRET HISTORY OF THE AMERICAN MERITOCRACY (1999). Until the mid-1900s, elite colleges such as Harvard, Yale, and Princeton "educated the solid, if less industrious, members of America's upper-middle and upper classes, [then] almost exclusively WASP. . . . Academic requirements were modest; students of good character who could pay the tuition were usually admitted." MARCIA GRAHAM SYNNOTT, THE HALF-OPENED DOOR: DISCRIMINATION AND ADMISSIONS AT HARVARD, YALE, AND PRINCETON, 1900-1970, at 4 (1979). At Princeton, for example, "[i]n 1958, about 70 percent of alumni son applications were accepted for the class of 1962, as against only 35 percent of those without Princeton connections." Id. at 221. An alumni son was not required "to compete against non-Princeton sons," but was admitted if his "character record [was] satisfactory" and if the committee could answer just one major question in the affirmative: "Can he be expected to graduate?" The fruits of such preference were seen in the freshman class admitted in 1957: "50% of the bottom quarter, academically speaking, was made up of Princeton sons." Id.; see also id. at 206 ("[A]lumni sons, who were, on the whole, economically and socially upper-middle-class and 'scholastically average' . . . made up about 20 percent of [Harvard's] class of 1951."). It is perhaps unremarkable that criticism of affirmative action has intensified as elite schools have become more selective. See, e.g., Stanley Rothman & Amy E. Black, Who Rules Now? American Elites in the 1990s, SOC'Y, Sept. 1, 1998, at 17 (reporting survey result that "while in 1980, very few whites (less than one in twenty) expressed the view that minority gains came at the expense of whites, almost half our white respondents support that view now"). What is remarkable, however, is evidence that even with affirmative action, the average SAT score of black matriculants at selective schools in 1989 was higher than the average for all matriculants at such schools in 1951. See WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS 30 (1998). Such data put the current affirmative action debate into proper historical perspective. See id. ("The alumni/ae of the 1950s should have no reason to question the qualifications of the black students of today!").
10. The intense competition among selective institutions for academically talented students is a relatively recent phenomenon in American higher education, largely driven by economic, social, legal, and demographic forces that have conspired over the last century to make educational opportunity more desirable and more attainable for an expanding majority of the citizenry. See generally NICHOLAS LEMANN, THE BIG TEST: THE SECRET HISTORY OF THE AMERICAN MERITOCRACY (1999). Until the mid-1900s, elite colleges such as Harvard, Yale, and Princeton "educated the solid, if less industrious, members of America's upper-middle and upper classes, [then] almost exclusively WASP. . . . Academic requirements were modest; students of good character who could pay the tuition were usually admitted." MARCIA GRAHAM SYNNOTT, THE HALF-OPENED DOOR: DISCRIMINATION AND ADMISSIONS AT HARVARD, YALE, AND PRINCETON, 1900-1970, at 4 (1979). At Princeton, for example, "[i]n 1958, about 70 percent of alumni son applications were accepted for the class of 1962, as against only 35 percent of those without Princeton connections." Id. at 221. An alumni son was not required "to compete against non-Princeton sons," but was admitted if his "character record [was] satisfactory" and if the committee could answer just one major question in the affirmative: "Can he be expected to graduate?" The fruits of such preference were seen in the freshman class admitted in 1957: "50% of the bottom quarter, academically speaking, was made up of Princeton sons." Id.; see also id. at 206 ("[A]lumni sons, who were, on the whole, economically and socially upper-middle-class and 'scholastically average' . . . made up about 20 percent of [Harvard's] class of 1951."). It is perhaps unremarkable that criticism of affirmative action has intensified as elite schools have become more selective. See, e.g., Stanley Rothman & Amy E. Black, Who Rules Now? American Elites in the 1990s, SOC'Y, Sept. 1, 1998, at 17 (reporting survey result that "while in 1980, very few whites (less than one in twenty) expressed the view that minority gains came at the expense of whites, almost half our white respondents support that view now"). What is remarkable, however, is evidence that even with affirmative action, the average SAT score of black matriculants at selective schools in 1989 was higher than the average for all matriculants at such schools in 1951. See WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS 30 (1998). Such data put the current affirmative action debate into proper historical perspective. See id. ("The alumni/ae of the 1950s should have no reason to question the qualifications of the black students of today!").
11. The intense competition among selective institutions for academically talented students is a relatively recent phenomenon in American higher education, largely driven by economic, social, legal, and demographic forces that have conspired over the last century to make educational opportunity more desirable and more attainable for an expanding majority of the citizenry. See generally NICHOLAS LEMANN, THE BIG TEST: THE SECRET HISTORY OF THE AMERICAN MERITOCRACY (1999). Until the mid-1900s, elite colleges such as Harvard, Yale, and Princeton "educated the solid, if less industrious, members of America's upper-middle and upper classes, [then] almost exclusively WASP. . . . Academic requirements were modest; students of good character who could pay the tuition were usually admitted." MARCIA GRAHAM SYNNOTT, THE HALF-OPENED DOOR: DISCRIMINATION AND ADMISSIONS AT HARVARD, YALE, AND PRINCETON, 1900-1970, at 4 (1979). At Princeton, for example, "[i]n 1958, about 70 percent of alumni son applications were accepted for the class of 1962, as against only 35 percent of those without Princeton connections." Id. at 221. An alumni son was not required "to compete against non-Princeton sons," but was admitted if his "character record [was] satisfactory" and if the committee could answer just one major question in the affirmative: "Can he be expected to graduate?" The fruits of such preference were seen in the freshman class admitted in 1957: "50% of the bottom quarter, academically speaking, was made up of Princeton sons." Id.; see also id. at 206 ("[A]lumni sons, who were, on the whole, economically and socially upper-middle-class and 'scholastically average' . . . made up about 20 percent of [Harvard's] class of 1951."). It is perhaps unremarkable that criticism of affirmative action has intensified as elite schools have become more selective. See, e.g., Stanley Rothman & Amy E. Black, Who Rules Now? American Elites in the 1990s, SOC'Y, Sept. 1, 1998, at 17 (reporting survey result that "while in 1980, very few whites (less than one in twenty) expressed the view that minority gains came at the expense of whites, almost half our white respondents support that view now"). What is remarkable, however, is evidence that even with affirmative action, the average SAT score of black matriculants at selective schools in 1989 was higher than the average for all matriculants at such schools in 1951. See WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS 30 (1998). Such data put the current affirmative action debate into proper historical perspective. See id. ("The alumni/ae of the 1950s should have no reason to question the qualifications of the black students of today!").
12. Ethan Bronner, Group Suing U. of Michigan Over Diversity, N.Y. TIMES, Oct. 14, 1997, at A24 ("I knew of people accepted to Ann Arbor who were less qualified, and my first reaction when I was rejected was, 'Let's sue,' . . . .") (quoting Jennifer Gratz); Jodi S. Cohen, Affirmative Action on Trial; Denial Shatters Dream; Southgate Woman Key Figure in University Bias Suit, DETROIT NEWS, Nov. 12, 2000, at A1 (profile of Jennifer Gratz); see also Kenneth J. Cooper, Deciding Who Gets In and Who Doesn't; Schools Consider Many Factors, From Grade Average to 'Get Up and Go'. WASH. POST, Apr. 2, 2000, at A5.
13. Ethan Bronner, Group Suing U. of Michigan Over Diversity, N.Y. TIMES, Oct. 14, 1997, at A24 ("I knew of people accepted to Ann Arbor who were less qualified, and my first reaction when I was rejected was, 'Let's sue,' . . . .") (quoting Jennifer Gratz); Jodi S. Cohen, Affirmative Action on Trial; Denial Shatters Dream; Southgate Woman Key Figure in University Bias Suit, DETROIT NEWS, Nov. 12, 2000, at A1 (profile of Jennifer Gratz); see also Kenneth J. Cooper, Deciding Who Gets In and Who Doesn't; Schools Consider Many Factors, From Grade Average to 'Get Up and Go'. WASH. POST, Apr. 2, 2000, at A5.
14. Ethan Bronner, Group Suing U. of Michigan Over Diversity, N.Y. TIMES, Oct. 14, 1997, at A24 ("I knew of people accepted to Ann Arbor who were less qualified, and my first reaction when I was rejected was, 'Let's sue,' . . . .") (quoting Jennifer Gratz); Jodi S. Cohen, Affirmative Action on Trial; Denial Shatters Dream; Southgate Woman Key Figure in University Bias Suit, DETROIT NEWS, Nov. 12, 2000, at A1 (profile of Jennifer Gratz); see also Kenneth J. Cooper, Deciding Who Gets In and Who Doesn't; Schools Consider Many Factors, From Grade Average to 'Get Up and Go'. WASH. POST, Apr. 2, 2000, at A5.
15. Peter Applebome, Subtly and Not, Race Bubbles Up as Issue in North Carolina Contest, N.Y. TIMES. Nov. 2, 1990, at A1 (quoting television commercial).
16. MICHAEL LIND, THE NEXT AMERICAN NATION 166 (1995) (citing Lino Graglia, Racial Preferences in Admission to Institutions of Higher Education, in THE IMPERILED ACADEMY 134 (Howard Dickman ed., 1993)). The careful reader will note that Lind's assertion flatly defies basic arithmetic.
17. MICHAEL LIND, THE NEXT AMERICAN NATION 166 (1995) (citing Lino Graglia, Racial Preferences in Admission to Institutions of Higher Education, in THE IMPERILED ACADEMY 134 (Howard Dickman ed., 1993)). The careful reader will note that Lind's assertion flatly defies basic arithmetic.
18. See Richard Morin, Misperceptions Cloud Whites' View of Blacks, WASH. POST, July 11, 2001, at A1. This Article does not address affirmative action in the employment context. Instead, it focuses exclusively on the use of racial preferences in the admissions processes of selective colleges and universities. Although the Article's main statistical argument is applicable to most educational contexts where race is a factor in selective admissions, its applicability is more variable in the context of employment. The reason is that the relative magnitudes of the pertinent statistical parameters (e.g., spaces available, number of minority applicants, number of total applicants) are not as consistent across employment opportunities as they are across educational opportunities where race is a factor in selection. See infra note 76 (discussing evidence that race is a significant factor in admissions only at the most selective schools).
19. See, e.g., Thomas J. Kane, Racial and Ethnic Preferences in College Admissions, in THE BLACK-WHITE TEST SCORE GAP 453-54 (Christopher Jencks & Meredith Phillips eds., 1998); Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381, 422-23 n.192 (1998); Andrew Hacker, The Myths of Racial Division, GUARDIAN, May 1, 1992, at 19 (analyzing ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992)) ("[I]n the end black Americans remain a relatively small minority, so there are limits to how many whites they can displace even with aggressive affirmative action recruiting."); John Iwasaki, Affirmative Action Aids White Students Too; Stereotype False, State Study Says, SEATTLE POST-INTELLIGENCER, Nov. 19, 1995, at A9 ("[M]any white students who were denied admission did not lose out because of minority students, but because of tight limits on enrollment. In other words, many qualified white applicants probably would have been turned down even if no minority students had applied."); Gary Orfield, Boston Needs to Strengthen its Case for Diversity at Latin School, BOSTON GLOBE, Jan. 11, 1999, at A15 ("[W]hites tend to overestimate what they actually 'lose' through affirmative action . . . .").
20. See, e.g., Thomas J. Kane, Racial and Ethnic Preferences in College Admissions, in THE BLACK-WHITE TEST SCORE GAP 453-54 (Christopher Jencks & Meredith Phillips eds., 1998); Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381, 422-23 n.192 (1998); Andrew Hacker, The Myths of Racial Division, GUARDIAN, May 1, 1992, at 19 (analyzing ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992)) ("[I]n the end black Americans remain a relatively small minority, so there are limits to how many whites they can displace even with aggressive affirmative action recruiting."); John Iwasaki, Affirmative Action Aids White Students Too; Stereotype False, State Study Says, SEATTLE POST-INTELLIGENCER, Nov. 19, 1995, at A9 ("[M]any white students who were denied admission did not lose out because of minority students, but because of tight limits on enrollment. In other words, many qualified white applicants probably would have been turned down even if no minority students had applied."); Gary Orfield, Boston Needs to Strengthen its Case for Diversity at Latin School, BOSTON GLOBE, Jan. 11, 1999, at A15 ("[W]hites tend to overestimate what they actually 'lose' through affirmative action . . . .").
21. See, e.g., Thomas J. Kane, Racial and Ethnic Preferences in College Admissions, in THE BLACK-WHITE TEST SCORE GAP 453-54 (Christopher Jencks & Meredith Phillips eds., 1998); Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381, 422-23 n.192 (1998); Andrew Hacker, The Myths of Racial Division, GUARDIAN, May 1, 1992, at 19 (analyzing ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992)) ("[I]n the end black Americans remain a relatively small minority, so there are limits to how many whites they can displace even with aggressive affirmative action recruiting."); John Iwasaki, Affirmative Action Aids White Students Too; Stereotype False, State Study Says, SEATTLE POST-INTELLIGENCER, Nov. 19, 1995, at A9 ("[M]any white students who were denied admission did not lose out because of minority students, but because of tight limits on enrollment. In other words, many qualified white applicants probably would have been turned down even if no minority students had applied."); Gary Orfield, Boston Needs to Strengthen its Case for Diversity at Latin School, BOSTON GLOBE, Jan. 11, 1999, at A15 ("[W]hites tend to overestimate what they actually 'lose' through affirmative action . . . .").
22. See, e.g., Thomas J. Kane, Racial and Ethnic Preferences in College Admissions, in THE BLACK-WHITE TEST SCORE GAP 453-54 (Christopher Jencks & Meredith Phillips eds., 1998); Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381, 422-23 n.192 (1998); Andrew Hacker, The Myths of Racial Division, GUARDIAN, May 1, 1992, at 19 (analyzing ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992)) ("[I]n the end black Americans remain a relatively small minority, so there are limits to how many whites they can displace even with aggressive affirmative action recruiting."); John Iwasaki, Affirmative Action Aids White Students Too; Stereotype False, State Study Says, SEATTLE POST-INTELLIGENCER, Nov. 19, 1995, at A9 ("[M]any white students who were denied admission did not lose out because of minority students, but because of tight limits on enrollment. In other words, many qualified white applicants probably would have been turned down even if no minority students had applied."); Gary Orfield, Boston Needs to Strengthen its Case for Diversity at Latin School, BOSTON GLOBE, Jan. 11, 1999, at A15 ("[W]hites tend to overestimate what they actually 'lose' through affirmative action . . . .").
23. See, e.g., Thomas J. Kane, Racial and Ethnic Preferences in College Admissions, in THE BLACK-WHITE TEST SCORE GAP 453-54 (Christopher Jencks & Meredith Phillips eds., 1998); Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381, 422-23 n.192 (1998); Andrew Hacker, The Myths of Racial Division, GUARDIAN, May 1, 1992, at 19 (analyzing ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992)) ("[I]n the end black Americans remain a relatively small minority, so there are limits to how many whites they can displace even with aggressive affirmative action recruiting."); John Iwasaki, Affirmative Action Aids White Students Too; Stereotype False, State Study Says, SEATTLE POST-INTELLIGENCER, Nov. 19, 1995, at A9 ("[M]any white students who were denied admission did not lose out because of minority students, but because of tight limits on enrollment. In other words, many qualified white applicants probably would have been turned down even if no minority students had applied."); Gary Orfield, Boston Needs to Strengthen its Case for Diversity at Latin School, BOSTON GLOBE, Jan. 11, 1999, at A15 ("[W]hites tend to overestimate what they actually 'lose' through affirmative action . . . .").
24. See, e.g., Thomas J. Kane, Racial and Ethnic Preferences in College Admissions, in THE BLACK-WHITE TEST SCORE GAP 453-54 (Christopher Jencks & Meredith Phillips eds., 1998); Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381, 422-23 n.192 (1998); Andrew Hacker, The Myths of Racial Division, GUARDIAN, May 1, 1992, at 19 (analyzing ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992)) ("[I]n the end black Americans remain a relatively small minority, so there are limits to how many whites they can displace even with aggressive affirmative action recruiting."); John Iwasaki, Affirmative Action Aids White Students Too; Stereotype False, State Study Says, SEATTLE POST-INTELLIGENCER, Nov. 19, 1995, at A9 ("[M]any white students who were denied admission did not lose out because of minority students, but because of tight limits on enrollment. In other words, many qualified white applicants probably would have been turned down even if no minority students had applied."); Gary Orfield, Boston Needs to Strengthen its Case for Diversity at Latin School, BOSTON GLOBE, Jan. 11, 1999, at A15 ("[W]hites tend to overestimate what they actually 'lose' through affirmative action . . . .").
25. See Anthony T. Kronman, Is Diversity a Value in American Higher Education?, 52 FLA. L. REV. 861, 862 (2000) (noting the difficulty of "sustai[ing] an intermediate position that is sympathetic and skeptical at once" in light of "the pressure to be 'for' or 'against' affirmative action without reservation").
26. See Liu, supra note 13.
27. BOWEN & BOK, supra note 8.
28. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265. 274-76 (1978) (opinion of Powell, J.). The medical school's formal policy indicated that any applicant who identified herself or himself as "economically and/or educationally disadvantaged" could seek review under the special admissions program. Id. at 272 n.1. In fact, large numbers of disadvantaged whites applied to the special program. Id. at 275 n.5. No whites, however, were ever admitted through the special program. Id, at 276 & n.6.
29. Competition within the special program was substantial. Even discounting the disadvantaged white applicants in the pool, the special program admitted only 7.1 % of minority applicants (sixteen out of 224) in 1973 and only 3.5% of minority applicants (sixteen out of 456) in 1974. Id. at 275 n.5.
30. Brief for Respondent at 63, Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (No. 76-811).
31. Bakke, 438 U.S. at 277.
32. See id. at 277 n.7. Allan Bakke also applied unsuccessfully in 1973, and the footnote includes a second table showing similar data for the class entering in 1973. The two tables in footnote 7 include a sixth column titled "Gen. Infor." I have omitted it because Justice Powell nowhere explains or relies on the data in this column.
33. Id. at 320.
34. Id.
35. Id. at 321 n.54.
36. See id. at 277 n.7.
37. Id.
38. But cf. infra text accompanying notes 83-86 (discussing why the use of averages to infer the magnitude of preference accorded to minority applicants is not entirely valid).
39. Bakke, 438 U.S. at 277.
40. Id. at 277 n.7. Although the grade point averages and test scores of regular admittees in footnote 7 are means, not medians. I think it is reasonable to assume that the admittees are normally distributed around each mean.
41. Id. at 277 (quoting the record).
42. Neither Justice Powell's opinion nor the litigation record indicates exactly how many regular admittees had grades and test scores lower than Bakke's. Using the number of regular admittees who matriculated (eighty-four) as a lower bound for the number of regular applicants who were admitted, and assuming that the grade point averages and test scores of regular admittees are normally distributed around the mean, I estimate that fifty or sixty regular admittees, at a minimum, had grades and test scores lower than Bakke's. The true number is certainly much higher, because not all admittees choose to matriculate. But I am unable to estimate the true number reliably without knowing either the total number of applicants admitted under the regular program or the percentage of admittees who decided to matriculate.
43. This assumption is improbable despite the large gaps in average GPAs and MCAT scores between special and regular admittees. Special applicants at the high end of their distribution likely had GPAs and test scores at least as high as, if not higher than, those of regular applicants at the low end of their distribution. Indeed, the record shows that, whereas Bakke had an overall GPA of 3.46 and a science GPA of 3.44, Bakke, 438 U.S. at 277 n.7, the overall GPA of special admittees ranged up to 3.76 in 1973 and up to 3.45 in 1974, and the science GPA of special admittees ranged up to 3.89 in 1974, see Brief of Amici Curiae National Urban League et al. at 12 n.6. Regents of Univ. of Cal. v. Bakke, No. 76-811 (U.S. filed Jan. 14, 1977) (on petition for writ of certiorari) [hereinafter Amici National Urban League]. The assumption that none of the special applicants would have been admitted under the regular program thus establishes an upper bound for the cost of affirmative action to regular applicants like Bakke.
44. See Bakke, 438 U.S. at 273 n.2 (noting that 3737 applications were submitted for the 1974 entering class); id. at 275 n.5 (noting that 628 persons applied to the special committee in 1974). 3737-628 = 3,109.
45. I describe this comparison as rudimentary because it does not account for the fact that the medical school had to admit more than 84 or 100 applicants in order to obtain a "yield" of 84 or 100 matriculants. In other words, the average admission rates for white applicants - i.e., the likelihood of receiving a letter of admission - were higher than my rough calculations show, both with and without the quota. But without knowing the total number of admittees or the yield rates for the medical school, see supra note 31, I am unable to offer a more precise calculation. Part II of this Article, which examines undergraduate admissions data, provides a much more refined iteration of this method of statistical comparison, including adjustments for yield. See infra Part II.
46. Id. at 273-74.
47. Id. at 274-75 & n.4.
48. Notice of Intended Decision at 87a, Bakke v. Regents of Univ. of Cal. (Cal. Super. Ct. Nov. 25, 1974) (No. 31287) (on file with author) (quoting Dr. George H. Lowrey) [hereinafter Intended Decision]. The Intended Decision is reproduced in the appendix to the university's petition for certiorari to the U.S. Supreme Court. See Regents of Univ. of Cal. v. Bakke, No. 76-811 (U.S. filed Dec. 14, 1976) (on file with author). The page citations refer to that appendix.
49. Bakke, 438 U.S. at 275 n.5.
50. Id. at 276.
51. Intended Decision, supra note 37, at 94a.
52. Id.
53. Bakke, 438 U.S. at 281 n.14 (opinion of Powell, J.).
54. Intended Decision, supra note 37, at 88a. In fact, as Justice Powell acknowledged, fifteen minority applicants were admitted through the regular program in 1973, and nine were admitted through the regular program in 1974. Bakke, 438 U.S. at 276 n.6.
55. Bakke, 438 U.S. at 320 n.54.
56. Id. at 320.
57. Complaint at 4, Bakke v. Regents of Univ. of Cal. (Cal. Super. Ct. June 20, 1974) (No. 31287) (on file with author).
58. First Amended Answer at 7, Bakke v. Regents of Univ. of Cal. (Cal. Super. Ct. Aug. 1, 1974) (No. 31287) (on file with author).
59. See Findings of Fact and Conclusions of Law at 117a, Bakke v. Regents of Univ. of Cal. (Cal. Super. Ct. Mar. 7, 1975) (No. 31287) (on file with author). The Findings of Fact and Conclusions of Law are reproduced in the appendix to the university's petition for certiorari, and the page numbers refer to that appendix.
60. Id. at 116a-117a.
61. Id. at 116a.
62. Intended Decision, supra note 37, at 108a (quoting Dr. Lowrey).
63. Bakke v. Regents of Univ. of Cal., 553 P.2d 1152.1172 (Cal. 1976).
64. Id.
65. In its original disposition of the case, the California Supreme Court said: "[W]e remand the case to the trial court for the purpose of determining, under the proper allocation of the burden of proof, whether Bakke would have been admitted to the 1973 or 1974 entering class absent the special admission program." Compare Bakke. 553 P.2d at 1172, with Modification of Opinion at 80a, Bakke, 553 P.2d 1152 (S.F. 23311) (Cal. Oct. 28, 1976). The Modification of Opinion is reproduced in the appendix to the university's petition for certiorari, and the page number refers to that appendix.
66. Petition for Rehearing at 11, Bakke, 553 P.2d 1152 (S.F. 23311 ) (Cal. Sept. 30, 1976).
67. Id.
68. Id. at 11-12 (emphasis added).
69. Bakke, 553 P.2d at 1172; Modification of Opinion, supra note 54, at 80a.
70. The university had reason to be concerned about justiciability. Just three years before Bakke reached the Supreme Court, the Court dismissed as moot a similar lawsuit against the University of Washington Law School. DeFunis v. Odegaard, 416 U.S. 312 (1974). Moreover, a mere six months before the university filed its petition for certiorari, the Court had held that, absent a showing that "plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision," a federal court lacks Article III jurisdiction. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976).
71. Amici National Urban League, supra note 32, at 13.
72. Id. at 11-12. The numerical ratings, called "benchmark scores," were composite ratings of "the interviewers' summaries, the candidate's overall grade point average, grade point average in science courses, scores on the [MCAT], letters of recommendation, extracurricular activities, and other biographical data." Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 274 (1978).
73. See Amici National Urban League, supra note 32, at 12.
74. The university made several arguments in response, none of them convincing. See Reply to Brief of Amici Curiae at 2-4, Regents of Univ. of Cal. v. Bakke, No. 76-811 (U.S. filed Jan. 21, 1977) (on petition for writ of certiorari) [hereinafter Reply]. First, it pointed out that "some offers of admission are declined" and that "the notion of inflexible 'priority' is itself inaccurate, for benchmark ratings were not wholly determinative of admission." Id. But these arguments are refuted by the testimony of Dr. Lowrey, the admissions committee chairman, who consistently maintained that Bakke would have been denied admission absent the quota. See Intended Decision, supra note 37, at 108a; Amici National Urban League, supra note 32, at 11. Dr. Lowrey explained that "'[a]lmost every applicant offered a place in the class after the middle of May [when Bakke's application was being considered] attends the medical school,'" and he plainly characterized the fifteen applicants with benchmark ratings higher than Bakke's in 1973 as being "ahead of Mr. Bakke." Amici National Urban League, supra note 32, at 11 (quoting Dr. Lowrey). The university also cited a statement by the trial court that "'there appears to the court to be at least a possibility that [Bakke] might have been admitted absent the 16 favored positions on behalf of minorities.'" Reply, supra, at 3 (quoting Intended Decision, supra note 37, at 108a). But the university lifted this statement from a discussion in which the trial court concluded that Bakke would not have been admitted absent the special program, see Intended Decision, supra note 37, at 107a-108a, a conclusion unequivocally restated by the trial court twice thereafter, see Addendum to Notice of Intended Decision, Bakke v. Regents of Univ. of Cal. (Cal. Super. Ct. Mar. 7, 1975) (No. 31287) (on file with author); Findings of Fact and Conclusions of Law, supra note 48, at 116a-117a. Finally, the university cited a report written by Dr. Lowrey in response to a Department of Health, Education, and Welfare inquiry. The report said: Mr. Bakke was found by the Admissions Committee to be a highly desirable candidate and came very close to being offered a place in the entering class for the fall of 1973. The single reason for his non-acceptance was the lack of available space in that group; had additional places been available, individuals with Mr. Bakke's rating would likely have been admitted . . . . Reply, supra, at 4 n.2 (quoting report). But the reference to "that group" is a reference to "the entering class for the fall of 1973"; it is not a reference to the regular admissions program. The very most that could be inferred from the report's unremarkable citation to "the lack of available space" is that Bakke was in line for the 101st seat, not the 85th. In sum, it was far from "an impossible burden," Reply, supra, at 4, to show Bakke's inadmissibility absent the quota by a preponderance of the evidence. The record supports the charge that "the University essentially gave up an air tight case in order to confer 'jurisdiction' on [the Supreme] Court." Amici National Urban League, supra note 32, at 16.
75. Bakke, 438 U.S. at 280 n.14.
76. Id. at 280-81 n.14.
77. In its reply to amici's concerns about standing, the university asserted that "the law does not require certainty of admission in order to establish standing." Reply, supra note 63, at 2 (emphasis added). But nowhere did the university argue that the denial of opportunity to compete for all 100 places was alone sufficient to establish standing. Rather, the university argued that Bakke's inadmissibility absent the racial quota was not a certainty, see id. at 2-3. and was sufficiently probable that attempting to prove otherwise would have amounted to "trying to carry an impossible burden." id. at 4.
78. Brief for Respondent at 63, Bakke v. Regents of Univ. of Cal., 438 U.S. 265 (1978) (No. 76-811).
79. Bakke, 438 U.S. at 315-16, 319-20 (opinion of Powell, J.) (finding the quota unconstitutional); id. at 412-18, 421 (Stevens, J., joined by Burger, C.J., Stewart & Rehnquist, JJ., concurring in the judgment in part and dissenting in part) (finding the quota unlawful under Title VI of the Civil Rights Act of 1964).
80. Id. at 316-18 (opinion of Powell, J.).
81. Compare Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188, 1200 (9th Cir. 2000) ("Justice Powell's analysis is the narrowest footing upon which a race-conscious decision making process could stand" and is therefore the holding of the Court under Marks v. United States, 430 U.S. 188, 193 (1977)), with Hopwood v. Texas. 78 F.3d 932, 944 (5th Cir. 1996) ("Justice Powell's argument in Bakke garnered only his own vote and has never represented the view of a majority of the Court in Bakke or any other case. . . . Justice Powell's view in Bakke is not binding precedent on this issue.").
82. Bakke, 438 U.S. at 316 (quoting description of Harvard College admissions program).
83. Id. at 317.
84. Id. at 318.
85. See, e.g., Kenneth J. Cooper, Colleges Testing New Diversity Initiatives: Success Is Uneven Without Traditional Affirmative Action. WASH. POST, Apr. 2, 2000, at A4 (observing that more and more institutions are revising their admissions policies in response to changes in the legal and political landscape).
86. For recent scholarship, see, for example, Kane, supra note 13, at 431; Fredrick E. Vars & William G. Bowen, Scholastic Aptitude Test Scores, Race, and Academic Performance in Selective Colleges and Universities, in THE BLACK-WHITE TEST SCORE GAP, supra note 13, at 457; Robert C. Davidson & Ernest L. Lewis, Affirmative Action and Other Special Consideration Admissions at the University of California, Davis, School of Medicine, 278 JAMA 1153 (1997); William C. Kidder, The Rise of the Testocracy: An Essay on the LSAT, Conventional Wisdom, and the Dismantling of Diversity, 9 TEX. J. WOMEN & L. 167 (2000); Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions, 72 N.Y.U. L. REV. 1 (1997); and Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996). In addition, the University of Michigan litigation has yielded an impressive collection of empirical research demonstrating the relation between racial diversity and educational goals. See The Compelling Need for Diversity in Higher Education at, http://www.umich.edu/∼urel/admissions/legal/ expert/index.html (last modified Feb. 4, 2002) [hereinafter Compelling Need].
87. For recent scholarship, see, for example, Kane, supra note 13, at 431; Fredrick E. Vars & William G. Bowen, Scholastic Aptitude Test Scores, Race, and Academic Performance in Selective Colleges and Universities, in THE BLACK-WHITE TEST SCORE GAP, supra note 13, at 457; Robert C. Davidson & Ernest L. Lewis, Affirmative Action and Other Special Consideration Admissions at the University of California, Davis, School of Medicine, 278 JAMA 1153 (1997); William C. Kidder, The Rise of the Testocracy: An Essay on the LSAT, Conventional Wisdom, and the Dismantling of Diversity, 9 TEX. J. WOMEN & L. 167 (2000); Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions, 72 N.Y.U. L. REV. 1 (1997); and Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996). In addition, the University of Michigan litigation has yielded an impressive collection of empirical research demonstrating the relation between racial diversity and educational goals. See The Compelling Need for Diversity in Higher Education at, http://www.umich.edu/∼urel/admissions/legal/ expert/index.html (last modified Feb. 4, 2002) [hereinafter Compelling Need].
88. For recent scholarship, see, for example, Kane, supra note 13, at 431; Fredrick E. Vars & William G. Bowen, Scholastic Aptitude Test Scores, Race, and Academic Performance in Selective Colleges and Universities, in THE BLACK-WHITE TEST SCORE GAP, supra note 13, at 457; Robert C. Davidson & Ernest L. Lewis, Affirmative Action and Other Special Consideration Admissions at the University of California, Davis, School of Medicine, 278 JAMA 1153 (1997); William C. Kidder, The Rise of the Testocracy: An Essay on the LSAT, Conventional Wisdom, and the Dismantling of Diversity, 9 TEX. J. WOMEN & L. 167 (2000); Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions, 72 N.Y.U. L. REV. 1 (1997); and Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996). In addition, the University of Michigan litigation has yielded an impressive collection of empirical research demonstrating the relation between racial diversity and educational goals. See The Compelling Need for Diversity in Higher Education at, http://www.umich.edu/∼urel/admissions/legal/ expert/index.html (last modified Feb. 4, 2002) [hereinafter Compelling Need].
89. For recent scholarship, see, for example, Kane, supra note 13, at 431; Fredrick E. Vars & William G. Bowen, Scholastic Aptitude Test Scores, Race, and Academic Performance in Selective Colleges and Universities, in THE BLACK-WHITE TEST SCORE GAP, supra note 13, at 457; Robert C. Davidson & Ernest L. Lewis, Affirmative Action and Other Special Consideration Admissions at the University of California, Davis, School of Medicine, 278 JAMA 1153 (1997); William C. Kidder, The Rise of the Testocracy: An Essay on the LSAT, Conventional Wisdom, and the Dismantling of Diversity, 9 TEX. J. WOMEN & L. 167 (2000); Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions, 72 N.Y.U. L. REV. 1 (1997); and Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996). In addition, the University of Michigan litigation has yielded an impressive collection of empirical research demonstrating the relation between racial diversity and educational goals. See The Compelling Need for Diversity in Higher Education at, http://www.umich.edu/∼urel/admissions/legal/ expert/index.html (last modified Feb. 4, 2002) [hereinafter Compelling Need].
90. For recent scholarship, see, for example, Kane, supra note 13, at 431; Fredrick E. Vars & William G. Bowen, Scholastic Aptitude Test Scores, Race, and Academic Performance in Selective Colleges and Universities, in THE BLACK-WHITE TEST SCORE GAP, supra note 13, at 457; Robert C. Davidson & Ernest L. Lewis, Affirmative Action and Other Special Consideration Admissions at the University of California, Davis, School of Medicine, 278 JAMA 1153 (1997); William C. Kidder, The Rise of the Testocracy: An Essay on the LSAT, Conventional Wisdom, and the Dismantling of Diversity, 9 TEX. J. WOMEN & L. 167 (2000); Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions, 72 N.Y.U. L. REV. 1 (1997); and Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996). In addition, the University of Michigan litigation has yielded an impressive collection of empirical research demonstrating the relation between racial diversity and educational goals. See The Compelling Need for Diversity in Higher Education at, http://www.umich.edu/∼urel/admissions/legal/ expert/index.html (last modified Feb. 4, 2002) [hereinafter Compelling Need].
91. See BOWEN & BOK, supra note 8. The data in the study come from a huge database called College and Beyond (C&B), built by the Andrew Mellon Foundation between 1994 and 1997. Id. at xxvii-xxx. The C&B database contains records of 80,000 undergraduate students who matriculated at twenty-eight selective colleges and universities in 1951, 1976 and 1989. Id. at xxvii-xxviii. The institutions include liberal arts colleges as well as research universities. Id. at xxviii-xxix (listing the twenty-eight schools). Eight were among the top twenty most selective schools in the nation, as measured by average SAT scores; another thirteen were among the fifty-three next most selective schools; and the remaining seven were among the 241 next most selective schools. Id. at xxix. Although the twenty-eight schools are not representative of American higher education, they are representative of the roughly 300 most selective schools in the country. Id. For purposes of studying affirmative action, this is a highly relevant sample given the fact that racial preferences "are most pronounced at the most selective colleges." Kane, supra note 13, at 436-38 (showing through empirical analysis that race plays little or no role in admissions decisions at the vast majority of undergraduate institutions). The C&B database follows the students at these institutions before, during, and after they attend college, yielding a rich array of data and sufficiently large sample sizes to permit reliable comparisons among various groupings of students and institutions. See BOWEN & BOK, supra note 8, at xxix-xxx. Although the study does not examine minority students other than blacks, the data come from years (1951, 1976 and 1989) in which blacks were the primary beneficiaries of affirmative action.
92. For critical reviews, see Stephan Thernstrom & Abigail Thernstrom, Reflections on The Shape of the River, 46 UCLA L. REV. 1583 (1999); Clifford Adelman, The Rest of the River. U. BUS., Jan.-Feb. 1999, at 42; and THREE VIEWS OF THE RIVER (Center for Equal Opportunity ed., 1998), at http://www.ceousa.org/html/bok.html (Nov. 1998) (reviews by Linda Chavez, Dave O'Neill and Roger Clegg). For more favorable reviews, see Ronald Dworkin. Affirming Affirmative Action, N.Y. REV. BOOKS, Oct. 22, 1998, at 91; Michael Selmi, The Facts of Affirmative Action, 85 VA. L. REV. 697 (1999). A nicely balanced critique is offered by Terrance Sandalow, Minority Preferences Reconsidered, 97 MICH. L. REV. 1874 (1999).
93. For critical reviews, see Stephan Thernstrom & Abigail Thernstrom, Reflections on The Shape of the River, 46 UCLA L. REV. 1583 (1999); Clifford Adelman, The Rest of the River. U. BUS., Jan.-Feb. 1999, at 42; and THREE VIEWS OF THE RIVER (Center for Equal Opportunity ed., 1998), at http://www.ceousa.org/html/bok.html (Nov. 1998) (reviews by Linda Chavez, Dave O'Neill and Roger Clegg). For more favorable reviews, see Ronald Dworkin. Affirming Affirmative Action, N.Y. REV. BOOKS, Oct. 22, 1998, at 91; Michael Selmi, The Facts of Affirmative Action, 85 VA. L. REV. 697 (1999). A nicely balanced critique is offered by Terrance Sandalow, Minority Preferences Reconsidered, 97 MICH. L. REV. 1874 (1999).
94. For critical reviews, see Stephan Thernstrom & Abigail Thernstrom, Reflections on The Shape of the River, 46 UCLA L. REV. 1583 (1999); Clifford Adelman, The Rest of the River. U. BUS., Jan.-Feb. 1999, at 42; and THREE VIEWS OF THE RIVER (Center for Equal Opportunity ed., 1998), at http://www.ceousa.org/html/bok.html (Nov. 1998) (reviews by Linda Chavez, Dave O'Neill and Roger Clegg). For more favorable reviews, see Ronald Dworkin. Affirming Affirmative Action, N.Y. REV. BOOKS, Oct. 22, 1998, at 91; Michael Selmi, The Facts of Affirmative Action, 85 VA. L. REV. 697 (1999). A nicely balanced critique is offered by Terrance Sandalow, Minority Preferences Reconsidered, 97 MICH. L. REV. 1874 (1999).
95. For critical reviews, see Stephan Thernstrom & Abigail Thernstrom, Reflections on The Shape of the River, 46 UCLA L. REV. 1583 (1999); Clifford Adelman, The Rest of the River. U. BUS., Jan.-Feb. 1999, at 42; and THREE VIEWS OF THE RIVER (Center for Equal Opportunity ed., 1998), at http://www.ceousa.org/html/bok.html (Nov. 1998) (reviews by Linda Chavez, Dave O'Neill and Roger Clegg). For more favorable reviews, see Ronald Dworkin. Affirming Affirmative Action, N.Y. REV. BOOKS, Oct. 22, 1998, at 91; Michael Selmi, The Facts of Affirmative Action, 85 VA. L. REV. 697 (1999). A nicely balanced critique is offered by Terrance Sandalow, Minority Preferences Reconsidered, 97 MICH. L. REV. 1874 (1999).
96. For critical reviews, see Stephan Thernstrom & Abigail Thernstrom, Reflections on The Shape of the River, 46 UCLA L. REV. 1583 (1999); Clifford Adelman, The Rest of the River. U. BUS., Jan.-Feb. 1999, at 42; and THREE VIEWS OF THE RIVER (Center for Equal Opportunity ed., 1998), at http://www.ceousa.org/html/bok.html (Nov. 1998) (reviews by Linda Chavez, Dave O'Neill and Roger Clegg). For more favorable reviews, see Ronald Dworkin. Affirming Affirmative Action, N.Y. REV. BOOKS, Oct. 22, 1998, at 91; Michael Selmi, The Facts of Affirmative Action, 85 VA. L. REV. 697 (1999). A nicely balanced critique is offered by Terrance Sandalow, Minority Preferences Reconsidered, 97 MICH. L. REV. 1874 (1999).
97. For critical reviews, see Stephan Thernstrom & Abigail Thernstrom, Reflections on The Shape of the River, 46 UCLA L. REV. 1583 (1999); Clifford Adelman, The Rest of the River. U. BUS., Jan.-Feb. 1999, at 42; and THREE VIEWS OF THE RIVER (Center for Equal Opportunity ed., 1998), at http://www.ceousa.org/html/bok.html (Nov. 1998) (reviews by Linda Chavez, Dave O'Neill and Roger Clegg). For more favorable reviews, see Ronald Dworkin. Affirming Affirmative Action, N.Y. REV. BOOKS, Oct. 22, 1998, at 91; Michael Selmi, The Facts of Affirmative Action, 85 VA. L. REV. 697 (1999). A nicely balanced critique is offered by Terrance Sandalow, Minority Preferences Reconsidered, 97 MICH. L. REV. 1874 (1999).
98. Justice Powell might be said to have invited the suspicion by writing, somewhat evasively, that his plus-factor approach is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Indeed, the weight attributed to a particular quality may vary from year to year depending upon the "mix" both of the student body and the applicants for the incoming class. Bakke, 438 U.S. at 317 (opinion of Powell, J.) (emphasis added). The first to doubt Justice Powell's approach was not a judicial or political conservative; it was Justice Brennan. In Bakke, he wrote: There is no sensible, and certainly no constitutional, distinction between, for example, adding a set number of points to the admissions rating of disadvantaged minority applicants as an expression of the preference with the expectation that this will result in the admission of an approximately determined number of qualified minority applicants and setting a fixed number of places for such applicants as was done here. Id. at 378 (Brennan, J., concurring in the judgment in part and dissenting in part).
99. For well-known examples of this approach, see Bakke, 438 U.S. at 277 n.7 (opinion of Powell, J.); RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE 449-68 (1994); and STEPHAN THERNSTROM & ABIGAIL THERNSTROM, AMERICA IN BLACK AND WHITE: ONE NATION, INDIVISIBLE 397-409 (1997).
100. For well-known examples of this approach, see Bakke, 438 U.S. at 277 n.7 (opinion of Powell, J.); RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE 449-68 (1994); and STEPHAN THERNSTROM & ABIGAIL THERNSTROM, AMERICA IN BLACK AND WHITE: ONE NATION, INDIVISIBLE 397-409 (1997).
101. See BOWEN & BOK, supra note 8, at 20-22, 30-31 & figs.2.6, 2.7.
102. The five institutions include three private universities and two co-ed liberal arts colleges, "roughly representative" of the larger universe of twenty-eight selective four-year colleges and universities they examined in their study. Id. at 17 n.4. Bowen and Bok did not identify these schools because of promises of confidentiality. See id.
103. Id. at 29; see also HERRNSTEIN & MURRAY, supra note 79, at 452 (showing similar black-white gaps in SAT scores at twenty-three selective institutions). At four of the five institutions Bowen and Bok studied, they found that the average gap in SAT scores between black and white matriculants narrowed by sixty-eight points between 1976 and 1989. See BOWEN & BOK, supra note 8, at 30. Given this trend, it is possible that the gap has narrowed further between 1989 and 2000.
104. See Kane, supra note 13, at 433-35.
105. See BOWEN & BOK, supra note 8, at 20 fig.2.2.
106. A similar gap would remain if selective institutions based admissions solely on class rank as determined by high school grade point averages. See Kane, supra note 13, at 435.
107. BOWEN & BOK, supra note 8, at 16.
108. Id. at 26. Bowen and Bok clarify that "[w]hen we speak of 'applicants' we really mean 'applications.'" Id. at 18 n.5. Some applicants applied to more than one school in the C&B database; thus, the true number of applicants is less than the number of applications. Id. For present purposes, this distinction is immaterial as long as it is clear that the basic unit of analysis is the selection decision (admission or rejection) reached for each discrete application.
109. Id. at 26.
110. See id. at 27 fig.2.5. The precise values of the probabilities graphed in the figure appear in infra, Appendix, Table A, lines 6 and 8.
111. The curve for black applicants becomes choppy at the higher end of SAT scores due to the very small number of black applicants at these high SAT intervals. The underlying data for the graph show that only 5% of black applicants had SAT scores in the 1300-1349 interval, 3.1% scored 1350-1399, 1.3% scored 1400-1449, 0.5% (a total of twelve black applicants) scored 1450-1499, and 0.1% (a total of two black applicants) scored over 1500. See infra Appendix, Table A, lines 1 and 2. With larger samples, the figure likely approximates an ellipse rotated at a slight angle.
112. BOWEN & BOK, supra note 8, at 43.
113. Infra Appendix, Table A, lines 6 and 8. Again, the admission rates for black applicants is choppy at the high end of SAT scores because of small numbers. The spike at the right end of the curve reflects the fact that nine out of twelve black applicants scoring 1450-1499 on the SAT were admitted, while two out of two black applicants scoring 1500 or higher were admitted. Infra Appendix, Table A, lines 2 and 7.
114. Infra Appendix, Table A, lines 6 and 8.
115. Infra Appendix, Table A, lines 1 and 3.
116. See LEONARD RAMIST ET AL., STUDENT GROUP DIFFERENCES IN PREDICTING COLLEGE GRADES: SEX. LANGUAGE, AND ETHNIC GROUPS, College Board Report no. 93-1 (1994) (summarizing research); see also PATRICIA GÁNDARA, PRIMING THE PUMP: STRATEGIES FOR INCREASING THE ACHIEVEMENT OF UNDERREPRESENTED MINORITY UNDERGRADUATES 43-44 (1999) (citing research confirming "the overprediction problem") (available at 〈http://www.collegeboard.org〉) (last visited Feb. 11, 2002); L. SCOTT MILLER, AN AMERICAN IMPERATIVE: ACCELERATING MINORITY EDUCATIONAL ADVANCEMENT (1995) (same); Vars & Bowen, supra note 75, at 465-73.
117. BOWEN & BOK, supra note 8, at 75 fig.3.10. Even more striking is the finding that black students with SAT scores at or above 1300 ranked on average 4 percentile points lower than white students with SAT scores of less than 1000. Id.
118. See id. at 77 (finding that even after controlling for high school grades and socioeconomic status, a gap of 15 to 21 percentile points persists across all C&B schools); id. at 81-86 (discussing influences in the college environment that may affect academic outcomes for black students); Vars & Bowen, supra note 75, at 473 (stating that substantial variance in the black-white GPA gap from campus to campus suggests that college experiences play a role in determining academic outcomes). For research suggesting that vulnerability to stereotypes may harm the college academic performance of black students, see Claude M. Steele & Joshua Aronson, Stereotype Threat and the Test Performance of Academically Successful African Americans, in THE BLACK-WHITE TEST SCORE GAP, supra note 13, at 401-27.
119. Bowen and Bok found that controlling for black-white differences in high school grades and socioeconomic status, in addition to SAT scores, gender, school selectivity, field of study, and athlete status, closed the black-white gap in average class rank among students in their entire sample of twenty-eight institutions by roughly 14 percentile points. BOWEN & BOK, supra note 8, at 77. A more modest effect was observed in a study of 1989 matriculants at eleven institutions within Bowen and Bok's sample; that study showed that controls for socioeconomic status, including parental occupation and education, narrowed the black-white college performance gap by roughly 10%. Vars & Bowen, supra note 75, at 471. At one institution able to provide very detailed admissions data, more sophisticated controls integrating several predictors of academic performance, including SAT and achievement test scores, high school grades in core subjects, advanced placement data, and secondary school quality, narrowed the gap by about 15%. See id. at 472.
120. Bowen and Bok suggest that the educational background of whites and blacks differ in an array of unmeasurable and, in some cases, intangible resources, including "educational aspirations," "the number of books at home," "opportunities to travel," "the nature of the conversation around the dinner table." "'at-home' education . . . in some instances because of the presence of a 'stay-at-home Mom,' who has deliberately sacrificed family income," and "less pressure to take jobs during the school year" - factors not captured by black-white differences in socioeconomic status based on conventional measures, but likely correlated with black-white differences in wealth. Id. at 80-81; see also DALTON CONLEY, BEING BLACK, LIVING IN THE RED: RACE, WEALTH, AND SOCIAL POLICY IN AMERICA 55-81 (1999) (describing the intangible educational resources that wealth (i.e., ownership of assets) provides, and arguing that black-white gaps in wealth, not income, largely explain black-white gaps in educational attainment). See generally MELVIN L. OLIVER & THOMAS M. SHAPIRO. BLACK WEALTH/WHITE WEALTH: A NEW PERSPECTIVE ON RACIAL INEQUALITY (1995). Importantly, however, black-white differences in academic preparation do not mean that affirmative action sets minority students up for failure. Bowen and Bok's research provides strong evidence that minority students who attend highly selective schools do not fare worse and in fact fare better in terms of graduation rates, advanced degrees, earnings, and satisfaction with college than minority students with similar SAT scores who attend less selective schools. See BOWEN & BOK, supra note 8, at 59-68, 114-15, 142-44, 198-201.
121. Cf. Kane, supra note 13, at 449 (among 1992 high school graduates with combined reading and math scores in the top tenth of the class, only 6.1% of whites but 17.2% of blacks and Hispanics had income below $20.000).
122. The evidence suggesting that athletic preferences increase racial diversity is not overwhelming. Subsequent to Bowen and Bok's research, the Mellon Foundation sponsored a large-scale study of intercollegiate athletics. See JAMES L. SHULMAN & WILLIAM G. BOWEN, THE GAME OF LIFE: COLLEGE SPORTS AND EDUCATIONAL VALUES (2001). Examining data from thirty institutions varying in size and academic selectivity, that study concluded that "although athletics helps promote racial diversity, the impact is modest." Id. at 55. Although the recruitment of male athletes for high-profile sports (basketball, football, and hockey) has "clearly helped to diversify campuses," id. at 54, "[t]he same statement cannot be made . . . for [f]ower [p]rofile sports . . . in which the percentage of male athletes who were black was generally in the 3 to 4 percent range," id. at 54-55 & fig.2.8 (presenting 1989 data). Moreover, "[o]nly in the Division IA private universities has the presence of women athletes increased the relative number of African American women." Id. at 136 & fig.6,6 (reporting 1989 data). Overall, "the pressure to increase athletic opportunities for women, driven in large part by Title IX, cannot be said to have encouraged a greater degree of racial diversity." Id. at 137.
123. Cf. BOWEN & BOK, supra note 8, at 31 ("[O]ne commonsense way of representing (retrospectively) a process in which the race of the applicant was truly unknown to admissions officers is by assuming that black applicants, grouped by SAT ranges, would have the same probability of being admitted as white applicants in those same ranges.").
124. The intuition here is that within any group of applicants with similar SAT scores (say 1250-1299), there is a distribution ranging from those applicants who are exceedingly accomplished or desirably well-rounded to those who are overly narrow, bookish, or otherwise lackluster. Assuming that the shape of this distribution is similar for blacks and whites scoring 1250-1299, the relatively small fraction of white applicants offered admission (23%) is likely to include proportionally more candidates from the favorable end of the distribution than the relatively large fraction of black applicants offered admission (74%).
125. See BOWEN & BOK, supra note 8, at 29. At the 1200-1299 SAT interval, 35% of legacy applicants were admitted, compared to 22% of non-legacy applicants and roughly 60% of black applicants. Id. At SAT scores at or above 1300, 60% of legacies were admitted, compared to 24% of non-legacies and 70% of black applicants. Id. Although Bowen and Bok do not tell us how many applicants had legacy status, other data suggest that the numbers are not insignificant. See, e.g., JEAN H. FETTER, QUESTIONS AND ADMISSIONS: REFLECTIONS ON 100,000 ADMISSIONS DECISIONS AT STANFORD 75-76 (1995) ("[I]n a typical year, about 5 percent of the applicants [to Stanford], and about 10-12 percent of the enrolling freshman class, would be legacies."); id. at 76 (quoting an investigative finding by the Office for Civil Rights at Harvard that "[i]n 1988 . . . 280 of 1,602 Harvard freshmen, more than one in six, had fathers who had attended Harvard").
126. See RICHARD D. KAHLENBERG, THE REMEDY: CLASS, RACE, AND AFFIRMATIVE ACTION 166, 235 n.75, 300 n.70 (1996). Recall that Justice Powell's paradigmatic example of a geographic preference favors applicants from largely white rural areas over applicants from more racially diverse urban areas: "A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer." Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 316 (1978) (opinion of Powell, J.) (quoting Harvard College admissions policy).
127. Bakke, 438 U.S. at 323 (appendix to opinion of Powell, J.).
128. Id.
129. Id. at 316-17 (opinion of Powell, J.) (quoting Harvard's admissions policy); id. at 317 n.51 (quoting William Bowen's description of Princeton's admissions policy).
130. BOWEN & BOK, supra note 8, at 18.
131. Id. at 37.
132. Id. at 31.
133. Id. at 37.
134. Id. at 37-38 (citing data supplied in Personal Correspondence from Linda Wightman, former Vice President for Testing, Operations, and Research, Law School Admissions Council).
135. At Bowen and Bok's sample of five selective institutions, the average SAT score of black applicants who would have been rejected under their race-neutral model was 1145. Id. at 42. Within the entire sample of C&B institutions, 12% of white admittees had SAT scores lower than 1200, and nearly half of this group had scores in the 1150-1199 interval. See infra Appendix, Table A, line 9. Assuming Bowen and Bok are correct that their sample of five institutions is "roughly representative" of the C&B pool, BOWEN & BOK, supra note 8, at 17 n.4, this rough comparison suggests that the test score gap between retrospectively rejected black applicants and the bottom decile of white admittees is indeed small.
136. See, e.g., BOWEN & BOK at 23-29.
137. Bowen and Bok do not provide the average SAT scores of white and black applicants admitted to their sample of five selective institutions. But using the average SAT score of white applicants (1284) as the lowest possible approximation of the average SAT score of white admittees, see id. at 29, we find that the average test score gap between white admittees and retrospectively rejected blacks (1145) is at least 139 points (1284-1145). The actual gap is likely closer to 186 points, which is the difference between the average score of white matriculants (1331) and the average score of retrospectively rejected blacks (1145).
138. See id. at 16-17.
139. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 318 (1978).
140. See id. at 319 n.53 (opinion of Powell, J.) (favoring the plus-factor approach over racial quotas on the ground that " [j]ustice must satisfy the appearance of justice'" (quoting Offutt v. United States, 348 U.S. 11, 14 (1954) (Frankfurter, J.)) (alteration in original)).
141. Brief for Jennifer Gratz et al. at 17-18, Gratz v. Bollinger (6th Cir. May 7. 2001) (Nos. 01-1333, 01-1416. 01-1418), available at www.umich.edu/∼urel/admissions/legal/ (last visited April 16, 2002).
142. Although Gratz, having enrolled and graduated from another college, does not seek an order of admission to the University of Michigan, she does seek damages resulting from her denial of admission. See Gratz v. Bollinger, 122 F. Supp. 2d 811, 815, 816 (E.D. Mich. 2000) (observing that Gratz filed, among other things, a § 1983 action for monetary relief); see also Complaint ¶ 25, Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000)) (No. 97-75231), available at http://www.umich.edu/∼urel/admissions/legal/gratz/ gratzham.html (last modified Feb. 4. 2002) ("As a result of defendants' racially discriminatory procedures and practices, plaintiffs' applications were rejected.").
143. Infra Appendix, Table A, lines 2, 4, 5, 7, 9 and 10.
144. See infra Appendix, Table A, lines 8 and 11.
145. For methodology and calculations, see infra Appendix, Table A.
146. BOWEN & BOK, supra note 8, at 33-34. For the same reason, the yield for black or white applicants tends to decrease as SAT scores increase, indicating that applicants with higher SAT scores are likely to have more choices than applicants with lower SAT scores. See id. at 34 & fig.2.9.
147. See id. at 34 n.18.
148. Id. at 34 fig.2.9.
149. Id. at 35.
150. Id.
151. Of course, this observation assumes that the elimination of affirmative action would not cause selective institutions to expand the number of seats in their entering classes. I see no reason why such expansion would occur.
152. Infra Appendix, Table A, lines 2, 4. 5. 7, , and 10.
153. Infra Appendix, Table B, lines 1 and 4.
154. 53.4% × 543 whites = 290 whites. 31.9% × 147 blacks = 47 blacks. 290 whites + 47 blacks = 337 students total. See infra Appendix, Table B, lines 3, 6, and 7.
155. 631 × 53.4% = 337. See infra Appendix, Table B, line 8.
156. 631 ÷ 3061 = .206. See infra Appendix, Table B, line 10.
157. For methodology and calculations, see infra Appendix, Table B.
158. The right to equal opportunity is a "personal right," Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); see also id. ("[T]he Fifth and Fourteenth Amendments to the Constitution protect persons, not groups.").
159. Hopwood v. Texas, 999 F. Supp. 872, 883 (W.D. Tex. 1998).
160. Id. (citation omitted).
161. Northeastern Fla. Chapter of the Assoc. Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666 (1993); see also Texas v. Lesage, 528 U.S. 18, 21 (1999) (per curiam) ("The relevant injury in such cases is 'the inability to compete on an equal footing.'" (quoting Jacksonville, 508 U.S. at 666)); Adarand, 515 U.S. at 211 ("The injury in cases of this kind is that a 'discriminatory classification prevents] the plaintiff from competing on an equal footing.' The aggrieved party 'need not allege that he would have obtained the benefit but for the barrier in order to establish standing.'" (alteration in original) (internal citations omitted)).
162. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 280-81 n.14 (1978) (opinion of Powell, J.).
163. Id. at 281 n.14.
164. The chronology of that litigation is as follows: Wooden v. Board of Regents of University System of Georgia, 32 F. Supp. 2d 1370 (S.D. Ga. 1999) (ruling on Kirby Tracy and Ashley Davis); Tracy v. Board of Regents of University System of Georgia, 59 F. Supp. 2d 1314 (S.D. Ga. 1999) (ruling on Craig Green); Tracy v. Board of Regents of University System of Georgia, 208 F.3d 1313 (11th Cir. 2000) (vacating and remanding to the district court for reconsideration in light of Texas v. Lesage, 528 U.S. 18 (1999)); Tracy v. Board of Regents of University System of Georgia, No. CV 497-45, 2000 WL 1123268 (S.D. Ga. June 16, 2000) (reinstating prior opinions); Wooden v. Board of Regents of University System of Georgia, 247 F.3d 1262 (11th Cir. 2001) (dismissing in part, affirming in part, reversing and vacating in part, and remanding to the district court). "Wooden" is the name of one of three additional plaintiffs who argued that Georgia's continued operation of historically black institutions unlawfully discriminates against nonblacks. After the district court dismissed the Wooden plaintiffs for lack of standing, the Eleventh Circuit dismissed them for failure to file a timely notice of appeal. See Wooden, 247 F.3d at 1264.
165. See Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234 (11th Cir. 2001).
166. See Wooden, 247 F.3d at 1265.
167. See Wooden, 32 F. Supp. 2d at 1374 (describing 1995 standard for "automatic admission").
168. See id.; Wooden, 32 F. Supp. 2d at 1374.
169. Tracy, 2000 WL 1123268, at *7, *11 (citing the record).
170. Wooden, 247 F.3d at 1266; see also Wooden, 32 F. Supp. 2d at 1374. In 1996, the university selected 75% of its class in the first stage. Id. In 1997, it selected 88% of its class in the first stage. Tracy, 59 F. Supp. 2d at 1316.
171. Wooden, 247 F.3d at 1266. Neither the court of appeals nor the district court indicated the minimum SAT score required for automatic admission.
172. Id. Those applicants also had to meet a minimum SAT score, which the court of appeals and district court again do not indicate.
173. Id. at 1266 & n.4. In the summer of 2000, following an adverse district court decision in the Johnson litigation, the university decided to stop considering race as a factor in undergraduate admissions until the Johnson litigation is resolved. See Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir. 2001).
174. Wooden, 247 F.3d at 1266-67; see also Tracy, 59 F. Supp. 2d at 1317. "Despite extensive discovery, Green has not been able to show that UGA racially classified applicants at the [edge read] stage." Tracy, 59 F. Supp. 2d at 1318; id. at 1318 n.2 ("While Green has shown that the edge readers engage in a subjective process, the record evidence permits no reasonable inference that race plays a factor at this stage.").
175. See id. at 1317 ("[A]t the [edge read] stage, all applicants started at zero.").
176. Wooden, 247 F.3d at 1266.
177. Tracy, 59 F. Supp. 2d at 1317. Green scored 27 on a different college entrance exam, the ACT, which translated into an SAT score of 1170 to 1190. See id. 157. Wooden, 247 F.3d at 1267.
178. See id. at 1281-82 ("Simply put, at the only stage during which Davis's application was considered by UGA, she was plainly on an equal footing with all other applicants, and was deemed unqualified according to entirely race-neutral criteria."); Tracy v. Bd. of Regents of Univ. Sys. of Ga., No. CV 497-45, 2000 WL 1123268, at *10 (S.D. Ga. June 16, 2000); Wooden v. Bd. of Regents of Univ. Sys. of Ga., 32 F. Supp. 2d 1370, 1375-76 (S.D. Ga. 1999).
179. See Hopwood v. Texas, 999 F. Supp. 872, 883 (W.D. Tex. 1998) on remand (Sparks, J.) ("There is no basis in fact or logic to suggest . . . that all [white] applicants who were denied admission . . . were denied admission substantially - or, for that matter, even in small part - because of race."); id. at 884 ("[A]n applicant who has no conceivable chance of admission cannot possibly show that race was a substantial or motivating factor in the . . . school's decision to deny him or her admission.").
180. See supra note 137; see also Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 299 (1978) (opinion of Powell, J.) ("[I]t is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group . . . ." (emphasis added)).
181. Infra Appendix, Table A, lines 6 and 8.
182. Had they been black, white applicants in the 1150-1199, 1250-1299 and 1350-1399 intervals would have faced admission rates of 56%, 74% and 80%, respectively, which means 26%, 20%, and 44% of those applicants would have been rejected regardless of race. Infra Appendix, Table A, line 6.
183. Bowen and Bok's study included 24,700 white applicants. From lines 4 and 6 of Table A in the Appendix, it is possible to calculate the number of white applicants that would have been admitted had they been black: (.170)(1062) + (.354)(593) + (.406)(939) + (.462)(1507) + (.555)(2.075) + (.600)(2816) + (.739)(3384) + (.646)(3878) + (.800)(3532) + (.696)(2766) + (.750)(1507) + (1.00)(642) = 15,839. If 15,839 white applicants would have been admitted under the admission rates for black applicants, then 8861 - or 35.9% -would have been rejected. Summing the figures in line 9 of Table A, we find that 6433 white applicants were actually admitted, which means 18,267 were actually rejected. The percentage who still would have been rejected under the black admission rates is 8861 divided by 18,267, or 48.5%.
184. Tracy v. Bd. of Regents of Univ. Sys. of Ga., No. CV 497-45, 2000 WL 1123268, at *11 (S.D. Ga. June 16, 2000).
185. Tracy v. Bd. of Regents of Univ. Sys. of Ga., 59 F. Supp. 2d 1314, 1320 (S.D. Ga. 1999).
186. Id. at 1318.
187. Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1279 (11th Cir. 2001).
188. Id. at 1280.
189. Northeastern Fla. Chapter of Assoc. Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666 (1993).
190. See Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954) (stating that an official policy of "separate but equal" inflicts on members of a disfavored race "a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone").
191. It seems implausible, in my view, to argue that programs designed to benefit members of historically disadvantaged groups actually express negative judgments about the moral worth and capacities of members of historically advantaged groups. With respect to intangible injury. Green is simply not in the same position as a black student exposed to unequal treatment against the historical backdrop of Jim Crow. But cf. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 241 (1995) (Thomas, J., concurring in part and concurring in the judgment) ("In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice.").
192. See infra notes 213-228 and accompanying text.
193. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (holding that plaintiff must have suffered a "concrete and particularized" injury in order to have constitutional standing).
194. See id.; City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) ("Abstract injury is not enough [for constitutional standing].").
195. See Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1265 (11th Cir. 2001).
196. See Tracy v. Bd. of Regents of Univ. Sys. of Ga., No. CV 497-45, 2000 WL 1123268, at *7, *11 (S.D. Ga. June 16, 2000).
197. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995); Northeastern Fla. Chapter of Assoc. Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666 (1993).
198. 528 U.S. 18 (1999) (per curiam).
199. Id. at 19.
200. See id. at 19-20. It was undisputed that "[a]t least 80 applicants had higher undergraduate grade point averages (GPA's) than Lesage, 152 applicants had higher Graduate Record Examination (GRE) scores, and 73 applicants had both higher GPA's and higher GRE scores." Id. at 19. Moreover, neither Lesage's personal statement nor his letters of recommendation strengthened his application. See id.
201. Id. at 20 (quoting Lesage v. Texas, 158 F.3d 213, 222 (5th Cir. 1998)).
202. Id. (quoting Lesage, 158 F.3d at 222).
203. Id. at 20-21 (citing Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)).
204. Mt. Healthy, 429 U.S. at 282-84.
205. Id. at 282-83 & n.1. Doyle's record also included an argument with another teacher resulting in a suspension that was later rescinded, an argument with school cafeteria employees over the amount of spaghetti he had been served, and an incident in which he referred to students, in connection with a disciplinary complaint, as "sons of bitches." Id. at 281-82.
206. Id. at 284.
207. Id. at 285.
208. Id. at 286. The Court observed that the "test of causation" had been applied in cases involving due process challenges to allegedly involuntary confessions. Id.
209. Id. at 286.
210. Id.
211. Recognizing that "previous decisions on this point have typically involved alleged retaliation for protected First Amendment activity rather than racial discrimination," the Court said "that distinction is immaterial. The underlying principle is the same: The government can avoid liability by proving that it would have made the same decision without the impermissible motive." Texas v. Lesage, 528 U.S. 18, 21 (1999) (per curiam).
212. Id.
213. Id.
214. Id. Although Lesage leaves open this possibility for white applicants in Tracy's position, Tracy himself is unable to take advantage of it. After he was rejected by the University of Georgia, Tracy enrolled at another college. See Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1265 (11th Cir. 2001). Two years later, he won admission to the University of Georgia as a transfer student and remained a student there during the litigation. Id. Under City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983), a plaintiff seeking prospective injunctive relief must allege a "real and immediate" threat of future injury arising from unlawful conduct. The Eleventh Circuit determined that, under Lyons, Tracy lacks standing to seek forward-looking relief. Finding "no evidence that he intends to reapply for admission to UGA under any version of the freshman admissions policy," the court of appeals concluded that "[t]here is no likelihood . . . that he will ever again be exposed to UGA's allegedly discriminatory freshman admissions process." Wooden, 247 F.3d at 1284-85.
215. Wooden, 247 F.3d at 1286 (quoting Lesage, 528 U.S. at 21).
216. The district court in the Georgia litigation read Lesage as "enunciat[ing] a standing requirement." Tracy v. Bd. of Regents of Univ. Sys. of Ga., No. CV 497-45, 2000 WL 1123268, at *9 (S.D. Ga. June 16, 2001). But the Eleventh Circuit maintained that a same-decision showing under Lesage goes to the merits of a § 1983 claim, not to standing. See Wooden, 247 F.3d at 1280.
217. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 285-86 (1977) (describing the policy objectives underlying the Court's holding).
218. See, e.g., Sheldon Nahmod, Mt. Healthy and Causation-in-Fact: The Court Still Doesn't Get It!, 51 MERCER L. REV. 603, 610-17 (2000); Christina B. Whitman, An Essay on Texas v. Lesage, 51 MERCER L. REV. 621, 632-34 (2000).
219. See, e.g., Sheldon Nahmod, Mt. Healthy and Causation-in-Fact: The Court Still Doesn't Get It!, 51 MERCER L. REV. 603, 610-17 (2000); Christina B. Whitman, An Essay on Texas v. Lesage, 51 MERCER L. REV. 621, 632-34 (2000).
220. See Lesage, 528 U.S. at 21-22.
221. Id. at 21.
222. Observing that Lesage was limited to § 1983, the district court held that Tracy had succeeded in showing that the university's admissions process violated Title VI and that he was entitled to nominal damages under Title VI. See Tracy, 2000 WL 1123268, at *11-*12.
223. Lesage, 528 U.S. at 20.
224. See 435 U.S. 247, 248 (1978). The tension between Lesage and Carey has been noted elsewhere. See Tracy, 2000 WL 1123268, at *9-*10; Nahmod, supra note 198, at 611-12: Whitman, supra note 198, at 632-34. Carey was a procedural due process case involving the suspension of two high school students without an adjudicatory hearing. The Court held that while substantial damages under § 1983 for a deprivation of procedural due process must be proven and may not be presumed, see Carey, 435 U.S. at 262-65, "the denial of procedural due process should be actionable for nominal damages without proof of actual injury," id. at 266 (citations omitted). "Even if respondents' suspensions were justified, and even if they did not suffer any other actual injury," the Court explained, "the fact remains that they were deprived of their right to procedural due process." Id. "By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury." Id.
225. Cf. Lesage. 528 U.S. at 19 ("Lesage filed suit seeking money damages and injunctive relief." (emphasis added)).
226. Lesage is broadly consistent with other recent decisions reducing incentives for civil rights litigation. See Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Res., 532 U.S. 598, 603-04 (2001) (limiting "prevailing party" entitled to attorneys' fees under various civil rights statutes to a party who has secured a judgment on the merits or a court-ordered consent decree); Farrar v. Hobby, 506 U.S. 103, 115 (1992) (stating that for a § 1983 plaintiff who wins nominal damages but no compensatory damages, "the only reasonable [attorneys'] fee is usually no fee at all").
227. We have already seen that Davis, Green, Tracy, and Bakke do not fit the mold. Similarly, in Lesage, all evidence indicated that the plaintiff would not have been admitted to the University of Texas doctoral program even if the school's admissions process had been colorblind. See 528 U.S. at 19-20 (quoting the district court's conclusion that "any consideration of race had no effect on this particular individual's rejection"); see also supra note 180. In DeFunis v. Odegaard, the rejected white plaintiff, Marco DeFunis, was among the bottom thirty-three applicants on a waiting list consisting of 155 applicants for a first-year law school
228. We observed previously that 6433 white applicants were actually admitted and that 18,267 white applicants were actually rejected. See supra note 163. Thus, eliminating racial preferences would have increased the number of admitted white applicants by 268 (6701 minus 6433), which amounts to 1.5% of rejected white applicants.
229. See Amici National Urban League, supra note 32, at 12 n.6 (observing that Bakke was rejected by Bowman-Gray, University of South Dakota, University of Cincinnati, Wayne State University, Georgetown University, Mayo, UCLA, San Francisco, Stanford and University of Minnesota).
230. See supra notes 194-195 and accompanying text (discussing Texas v. Lesage, 528 U.S. 18 (1999)).
231. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 99 (1973) (Marshall, J., dissenting) (quoting Dandridge v. Williams, 397 U.S. 471, 521 (1970) (Marshall, J., dissenting)); see also Craig v. Boren, 429 U.S. 190, 211-12 (Stevens, J., concurring) ("There is only one Equal Protection Clause. . . . I am inclined to believe that what has become known as the two-tiered analysis of equal protection claims does not describe a completely logical method of deciding cases, but rather is a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion.").
232. See United States v. Paradise, 480 U.S. 149, 171 (1987) (plurality opinion) (narrow tailoring depends in part on "the impact of the [race-conscious action] on the rights of third parties"); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 281-83 (1986) (plurality opinion) (evaluating burden on innocent parties imposed by race-based hiring goals as part of narrow tailoring inquiry); Tuttle v. Arlington County Sch. Bd. 195 F.3d 698, 707 (4th Cir. 1999) (considering "the burden of the Policy on innocent third parties" in evaluating whether a local school district's race-conscious admissions policy was narrowly tailored).
233. See supra note 171 and accompanying text.
234. See Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234 (11th Cir. 2001). Conspicuously, and to its credit, the Eleventh Circuit nowhere identified displacement as a harm to white applicants, even though the district court had ordered the admission of two of the three plaintiffs on the ground that the university failed to prove they would not have been admitted in the absence of affirmative action. But cf. supra note 206 (discussing weakness of district court's determination).
235. Johnson, 263 F.3d at 1255.
236. Id.
237. Id. at 1257.
238. Id. at 1260. The Eleventh Circuit determined that the University of Georgia's admissions policy failed in this regard on two counts. First, the second stage of review (the TSI stage), while including race as a diversity factor, did not include a sufficiently broad range of nonracial factors to ensure that "an applicant's true potential to contribute to diversity is ever fully and fairly assessed." Id. at 1258. "[T]o take only one example, an applicant who has spent her summers performing volunteer work in a less developed 'third world' country presumably would add far more diversity to the class than many of her peers who worked at more ordinary and less challenging summer jobs, yet at the TSI stage the uniqueness of her experience is wholly ignored." Id. at 1255. Second, the degree of preference given to non-white applicants at the TSI stage was "disproportionate to the very few [nonracial] diversity-related factors that may permissibly be considered at that stage, and quite plainly [was] considerable relative to the many factors relating as much if not more directly to diversity that the TSI formula wholly excludes." Id. at 1257. "[B]y weighing race so heavily, UGA necessarily discounts other non-academic factors in the TSI that may in some instances be far more accurate barometers for diversity." Id. at 1258. In this regard, the personal stories of well-known white plaintiffs like Jennifer Gratz and Cheryl Hopwood have particular salience. Gratz, a good student with many extracurricular involvements, came from a working-class home where neither parent had finished college. See Cohen, supra note 9. Hopwood, the mother of a severely disabled child, applied to law school at age twenty-eight after working all through high school and then putting herself through community college and a four-year bachelor's program at a non-selective state school. See Hopwood v. Texas, 78 F.3d 932, 946 (5th Cir. 1996) ("Her circumstance would bring a different perspective to the law school."); Hopwood v. Texas, 999 F. Supp. 872, 903 (W.D. Tex. 1998); Richard Bernstein, Racial Discrimination or Righting Past Wrongs?, N.Y. TIMES, July 13, 1994, at B8 ("Ms. Hopwood's father died when she was a girl and she was reared under difficult circumstances by her mother."). Both Gratz and Hopwood had solid academic credentials (indeed, many applicants with similar credentials were admitted in the years they applied), and both overcame disadvantages. But elite schools traditionally have not sought out applicants with the social, educational, or economic profile of Gratz's family or Hopwood's. See Pricing the Poor Out of College, N.Y. TIMES, Mar. 27, 2002, at A22 (criticizing "a national system that is directing more and more its resources at middle- and upper-income students"). It is worth questioning whether white applicants like Gratz and Hopwood, instead of attacking affirmative action, might do better to urge top schools committed to genuine educational diversity to place a higher premium on first-generation college attendance or growing up in a blue-collar home. See id. (finding Mount Holyoke and Smith Colleges noteworthy because they "have historically taken it upon themselves to seek out first-generation college students as well as women who are returning to school after mother-hood or careers"); cf. Sturm & Guinier, supra note 75, at 992 ("Cheryl Hopwood . . . do[es] not see the class-based connection between [her] own exclusion and that of the beneficiaries of affirmative action.").
239. See Shaw v. Reno, 509 U.S. 630, 647 (1993) ("[Racial gerrymandering] reinforces the perception that members of the same racial group - regardless of their age, education, economic status, or the community in which they live - think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes."); Georgia v. McCollum, 505 U.S. 42, 59 (1992) ("This Court firmly has rejected the view that assumptions of partiality based on race provide a legitimate basis for disqualifying a person as an impartial juror. . . . We therefore reaffirm today that the exercise of a peremptory challenge must not be based on either the race of the juror or the racial stereotypes held by the party.").
240. For commentary examining racial stereotyping in other legal contexts, including law enforcement, broadcast licensing, jury selection, and voting rights, see, for example, Leonard M. Baynes, Paradoxes of Racial Stereotypes, Diversity and Past Discrimination in Establishing Affirmative Action in FCC Broadcast Licensing, 52 ADMIN. L. REV. 979 (2000); Kim Forde-Mazrui, Jural Districting: Selecting Impartial Juries Through Community Representation, 52 VAND. L. REV. 353 (1999); Pamela S. Karlan & Daryl J. Levinson, Why Voting Is Different, 84 CAL. L. REV. 1201 (1996); and David Rudovsky, Law Enforcement by Stereotypes and Serendipity: Racial Profiling and Stops and Searches Without Cause, 3 U. PA. J. CONST. L. 296 (2001).
241. For commentary examining racial stereotyping in other legal contexts, including law enforcement, broadcast licensing, jury selection, and voting rights, see, for example, Leonard M. Baynes, Paradoxes of Racial Stereotypes, Diversity and Past Discrimination in Establishing Affirmative Action in FCC Broadcast Licensing, 52 ADMIN. L. REV. 979 (2000); Kim Forde-Mazrui, Jural Districting: Selecting Impartial Juries Through Community Representation, 52 VAND. L. REV. 353 (1999); Pamela S. Karlan & Daryl J. Levinson, Why Voting Is Different, 84 CAL. L. REV. 1201 (1996); and David Rudovsky, Law Enforcement by Stereotypes and Serendipity: Racial Profiling and Stops and Searches Without Cause, 3 U. PA. J. CONST. L. 296 (2001).
242. For commentary examining racial stereotyping in other legal contexts, including law enforcement, broadcast licensing, jury selection, and voting rights, see, for example, Leonard M. Baynes, Paradoxes of Racial Stereotypes, Diversity and Past Discrimination in Establishing Affirmative Action in FCC Broadcast Licensing, 52 ADMIN. L. REV. 979 (2000); Kim Forde-Mazrui, Jural Districting: Selecting Impartial Juries Through Community Representation, 52 VAND. L. REV. 353 (1999); Pamela S. Karlan & Daryl J. Levinson, Why Voting Is Different, 84 CAL. L. REV. 1201 (1996); and David Rudovsky, Law Enforcement by Stereotypes and Serendipity: Racial Profiling and Stops and Searches Without Cause, 3 U. PA. J. CONST. L. 296 (2001).
243. For commentary examining racial stereotyping in other legal contexts, including law enforcement, broadcast licensing, jury selection, and voting rights, see, for example, Leonard M. Baynes, Paradoxes of Racial Stereotypes, Diversity and Past Discrimination in Establishing Affirmative Action in FCC Broadcast Licensing, 52 ADMIN. L. REV. 979 (2000); Kim Forde-Mazrui, Jural Districting: Selecting Impartial Juries Through Community Representation, 52 VAND. L. REV. 353 (1999); Pamela S. Karlan & Daryl J. Levinson, Why Voting Is Different, 84 CAL. L. REV. 1201 (1996); and David Rudovsky, Law Enforcement by Stereotypes and Serendipity: Racial Profiling and Stops and Searches Without Cause, 3 U. PA. J. CONST. L. 296 (2001).
244. See generally STEPHEN L. CARTER, REFLECTIONS OF AN AFFIRMATIVE ACTION BABY (1991); SHELBY STEELE, THE CONTENT OF OUR CHARACTER: A NEW VISION OF RACE IN AMERICA (1990).
245. See generally STEPHEN L. CARTER, REFLECTIONS OF AN AFFIRMATIVE ACTION BABY (1991); SHELBY STEELE, THE CONTENT OF OUR CHARACTER: A NEW VISION OF RACE IN AMERICA (1990).
246. See, e.g. Johnson, 263 F.3d 1234, at 1264-65; Gratz v. Bollinger, 135 F. Supp. 2d 790 (E.D. Mich. 2001).
247. Hopwood v. Texas, 78 F.3d 932, 945 (5th Cir. 1996).
248. For an impressive compilation of empirical evidence demonstrating the relation between racial diversity and educational goals, see Compelling Need, supra note 75 (containing expert reports in the University of Michigan litigation).
249. Kronman, supra note 14, at 879. See generally IAN F. HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996).
250. See Gary Orfield & John T. Yun, Resegregation in American Schools, The Civil Rights Project, Harvard University, at http://www.law.harvard.edu/civilrights/publications/ resegregation99.html (June 1999); Compelling Need, supra note 75.
251. Kronman, supra note 14, at 880: see also Richard Morin & Michael H. Cottman, Discrimination's Lingering Sting: Minorities Tell of Profiling, Other Bias, WASH. POST, July 22, 2001, at A1 (reporting results of national survey by Harvard University, Kaiser Foundation, and Washington Post comparing the frequency with which blacks, Hispanics, Asians, and whites report experiences of discrimination, profiling, and intolerance): Richard Morin, Misperceptions Cloud Whites' View of Blacks, WASH. POST, July 11, 2001, at A1 (relating similar national survey showing that "large numbers of white Americans incorrectly believe that blacks are as well off as whites in terms of their jobs, incomes, schooling and health care"). Importantly, the claim here is not that race is a proxy for other characteristics that genuinely further the university's interest in educational diversity. For a university that seeks educational diversity, an applicant's status as a black American is valuable insofar as growing up black in America gives rise to an overall life experience that is different from growing up white, just as growing up on a farm in Idaho produces a life experience different from growing up on the streets of Boston. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 316 (1978) (opinion of Powell, J.). Blackness, of course, is not a proxy for growing up black; it is one and the same.
252. Kronman, supra note 14, at 880: see also Richard Morin & Michael H. Cottman, Discrimination's Lingering Sting: Minorities Tell of Profiling, Other Bias, WASH. POST, July 22, 2001, at A1 (reporting results of national survey by Harvard University, Kaiser Foundation, and Washington Post comparing the frequency with which blacks, Hispanics, Asians, and whites report experiences of discrimination, profiling, and intolerance): Richard Morin, Misperceptions Cloud Whites' View of Blacks, WASH. POST, July 11, 2001, at A1 (relating similar national survey showing that "large numbers of white Americans incorrectly believe that blacks are as well off as whites in terms of their jobs, incomes, schooling and health care"). Importantly, the claim here is not that race is a proxy for other characteristics that genuinely further the university's interest in educational diversity. For a university that seeks educational diversity, an applicant's status as a black American is valuable insofar as growing up black in America gives rise to an overall life experience that is different from growing up white, just as growing up on a farm in Idaho produces a life experience different from growing up on the streets of Boston. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 316 (1978) (opinion of Powell, J.). Blackness, of course, is not a proxy for growing up black; it is one and the same.
253. In response to the University of Georgia's contention that its high volume of applications precludes personalized review of each one, the Eleventh Circuit said: The rejoinder to this is obvious: if UGA wants to ensure diversity through its admissions decisions, and wants race to be part of that calculus, then it must be prepared to shoulder the burden of fully and fairly analyzing applicants as individuals and not merely as members of groups when deciding their likely contribution to student body diversity. Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1256 (11th Cir. 2001).
254. Wessman v. Gittens. 160 F.3d 790, 797-98 (1st Cir. 1998). Citing concerns similar to those raised by the Eleventh Circuit in Johnson, the First Circuit in Wessman invalidated the Boston Latin School's affirmative action policy on the ground that it "focuses exclusively on racial and ethnic diversity." Id. at 798.
255. Bakke, 438 U.S. at 298 (opinion of Powell, J.).
256. See supra text accompanying notes 122-124.
257. The graph appears in the text accompanying note 89, supra.
258. See Personal correspondence with James L. Shulman, Financial and Administrative Officer, Andrew W. Mellon Foundation (May 23, 2000) (on file with author).
259. See BOWEN & BOK, supra note 8, at 18.
260. See Personal Correspondence with James L. Shulman, Financial and Administrative Office, Andrew W. Mellon Foundation (July 11, 2000) (on file with author).
261. If the number had exceeded 2400, then presumably Bowen and Bok would have said that the five institutions received "more than 2400 applications" from black applicants.
262. See supra text accompanying notes 125-136.
263. BOWEN & BOK, supra note 8, at 34 fig.2.9.