Legal Commentary

We've had some good discussions here and here in the past when we've linked to the work of my law school classmate Brian Fitzpatrick (Law, Vandy), so I thought I'd see if we can repeat our success now that Fitzie's stirring the pot again with his newest piece: Can Michigan Universities Use Proxies for Race after the Ban on Racial Preferences?

Here's the abstract:

In 2003, the Supreme Court of the United States held that public universities - and the University of Michigan in particular - had a compelling reason to use race as one of many factors in their admissions processes: to reap the educational benefits of a racially diverse student body. In 2006, in response to the Supreme Court's decision, the people of Michigan approved a ballot proposal - called the Michigan Civil Rights Initiative (MCRI) - that prohibits public universities in the state from discriminating or granting preferential treatment on the basis of race. Shortly after the MCRI was approved, a number of Michigan universities suggested that they were considering whether to use proxies for race in their admissions process in order to enroll racially diverse student bodies while circumventing the MCRI. These proxies include preferences for applicants who reside in heavily African American Detroit, applicants who are bilingual, and applicants who have lived on an Indian reservation.

This Essay considers whether it is legal for the universities to use proxies for race like these in their admissions processes. Although it seems clear that racial gerrymandering in university admissions will not run afoul of the U.S. Constitution - the universities can still invoke the compelling interest of the educational benefits of diversity - it is less clear whether the MCRI will permit the universities to use proxies for race. Like most antidiscrimination laws, the text of the MCRI does not say whether it prohibits only explicit racial classifications or whether it also prohibits racial gerrymandering. Nonetheless, this Essay argues that the MCRI should be interpreted like most of these other laws to prohibit both forms of racial discrimination. Although there are a few indications in the public debate over the MCRI that the voters of Michigan did not intend the proposal to prohibit racial gerrymandering, most of the debate assumed that the MCRI would be interpreted in the same way that Proposition 209 in California has been interpreted, and both commentators and courts have interpreted Proposition 209 to prohibit whatever the Equal Protection Clause would merely subject tostrict scrutiny. If the MCRI is interpreted in the same way, then it is likely that the universities will not be permitted to use proxies for race in their admissions process.