One persistent problem in the debate about affirmative action and preferences is the lack of reliable information about just what is being done. There are at least two key problems. The first is the relative dearth of studies that document actual outcomes associated with diversity, in particular longitudinal studies that establish reliable baselines and track changes over time, be they positive or negative. A second is that for a variety of reasons institutions have been unable or unwilling to fully disclose and discuss their actual policies and practices and how they operate. Both of these concerns are problematic given Justice Kennedy’s admonition that universities must develop meaningful information and data that will allow courts and interested parties to “scrutinize the fairness of [their] admissions program[s,] to assess whether changing demographics have undermined the need for . . . trace-conscious policies, and to identify the effects, both positive and negative, of the affirmative action measures [they] deem necessary.” Fisher II, 136 S. Ct. at 2214-15.
Our focus here is on the transparency problem. What are the actual policies? How do they operate? One rather surprising aspect of this is that the lack of reliable information has been an issue even where the programs have been tested in court, where one might expect that one routine outcome would be the development of a full and accurate record. As Hartocollis notes, one of the things regarding the recent Harvard College litigation is that it has led to an unusual degree of openness about just what Harvard has been doing, producing a factual record that is the exception rather than the rule in such matters.
Two examples from the past are telling. In Bakke, the Supreme Court ruled that racial quotas were unconstitutional and the defendant, the University of California at Davis Medical School arguably stopped using that approach. But it was far from clear that this is what actually happened. For example, in a comprehensive study published in 2001, Professors Welch and Gruhl found that “[s]eventy-seven percent of the medical school officials” surveyed “and 63 percent of the law officials claimed that Bakke affected policies ‘not at all.’”
In a similar vein, in Gratz the Court ruled that the University of Michigan’s practice of awarding a set number of “points” to under-represented minority students (URMs) was unconstitutional. The University did stop using that method. But a careful analysis of admissions data for decisions from 1999 (the year of Gratz’s application) to 2006 showed that the scale of racial preferences was larger in 2006 than in 1999. Sander, Tables 15-1 & 15-3 (pp. 290, 292). Unfortunately, a lack of detailed information makes it difficult to determine why that was the case.
This is perhaps easiest to see in the context of law schools and, in particular, post-graduation bar passage results. In the 1980s there was wide agreement that the bar passage gap between whites and Blacks warranted serious investigation. The Law School Admissions Council (LSAC) agreed to sponsor a major study and was able to secure the cooperation of almost 90% of all the law schools and nearly all of the state bars around the country. Wightman, 1998. The study compiled longitudinal data on over twenty-seven thousand law students who matriculated in 1991. It did not identify individual schools. It did provide a comprehensive and valuable source on all manner of questions related to legal education. It found no differences between the bar passage rates for men and women, but did document a gap between the eventual passage rate for all individuals of 94.8%, compared to 84.7% for “participants of color.” Executive Summary, at viii.
The LSAC study is now a quarter-century old and there has been no sign in the past twenty years of a willingness to do any comparable, updated study. Indeed, a series of post-LSAC attempts to secure more current information have seen a stark decline in the number of institutions willing to provide the data necessary to reach any sort of accurate and comprehensive conclusions. Richard Sander undertook three efforts of the 2003 to 2013 period to gather admissions data from public law schools. In 2003, he successfully obtained data from all six of the institutions he approached. In 2007-08, he and his research associates wrote to all of the public law schools in the United States and obtained responsive admissions data from 41 out of 72 (56%; that data is posted in the website’s data section). In 2013, only 11 of those 72 schools provided responsive data (15%). (Sander, 2015, p. 15).
Some of the concerns expressed by those unwilling to assist in these efforts are understandable. In California, for example, the courts have held that the State Public Records Act requires stringent privacy protections, allowing public agencies to refuse requests even where the use of simple data techniques would protect privacy and provide appropriate protections against the identification of any individuals. It has accordingly become increasingly difficult to determine the size and scale of admissions preferences in that state, much less what impact such policies might have on bar passage, the sine qua non to entry into the profession. In many other instances, however, the rationales for resistance are less defensible, “a mind-set that treats” these policies and practices “like an embarrassing family secret.” Peller, p. B1.
The problems are real and persistent. The need to fashion appropriate solutions is in turn essential given both public skepticism about such policies and the Supreme Court’s insistence that comprehensive, open, and accurate assessment is now the rule, rather than the exception.
List of Citations
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
Fisher v. The University of Texas at Austin, 136 S. Ct. 2198 (2016).
Gratz v. Bollinger, 539 U.S. 244 (2003).
Anemona Hartocollis. Harvard’s Admissions Process, Once Secret, Is Unveiled in Affirmative Action Trial. 2018: New York Times.
Gary Peller. Espousing a Positive Vision of Affirmative Action Policies. 1991: Chronicle of Higher Education.
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
Richard Sander. Why Strict Scrutiny Requires Transparency: The Practical Effects of Bakke, Gratz, and Grutter. In Kevin T. McGuire (Ed.), New Directions in Judicial Politics, pp. 277-95. 2012: Routledge.
Richard Sander. Amicus Brief submitted in Fisher v. University of Texas, 14-981, on behalf of neither party (2015).
Susan Welch & John Gruhl. Affirmative Action and Minority Enrollments in Medical and Law Schools. 2001: University of Michigan Press.
Linda F. Wightman. LSAC National Longitudinal Bar Passage Study. 1998: Law School Admissions Council.
Peter S. Arcidiacono, Josh Kindler & Tyler Ransom. “Affirmative Action, Transparency, and the SFFA v. Harvard Case.” 2020: University of Chicago Law Review Online.
Robert Steinbuch & Richard Peltz-Steele. “Ongoing Challenges in Researching Affirmative Action in Legal Education: Maximizing Public Welfare through Transparency.” 2020: Texas Hispanic Journal of Law & Policy, Vol. 26, No. 1, pp. 57-84.