“Dad, can we sue them?” Jennifer Gratz asked her father. It was April 1995, and the young white UM applicant from the Detroit suburbs had just opened her rejection letter. She immediately thought about her Hispanic classmate who was admitted to UM and Gratz concluded that affirmative action was to blame for her rejection. It would take a couple of years for Gratz to get her wish, but she eventually became the lead plaintiff in Gratz v. Bollinger, which challenged the racially attentive undergraduate admissions practices of the College of Literature, Science, and the Arts. Grutter v. Bollinger, which challenged the Law School’s admissions practices, was filed soon thereafter. These cases put UM on a crash course with the Supreme Court.¹

Since the 1960s, UM leaders hadn’t faced a viable legal or political challenge to their affirmative action admissions practices. They watched as other universities went to court or battled with their state legislature. But the 1990s brought the University of Michigan into a contentious national battle over affirmative action. Suddenly, UM was at the center of the most important legal challenge to affirmative action admissions since Bakke (1978).

This chapter follows Gratz and the university’s efforts to defend the undergraduate admissions policies in LSA. Gratz and Grutter have received their fair share of scholarly treatment. Countless books and articles have offered legal analyses and narratives of the cases. My goal here isn’t to provide a round-by-round recitation of Gratz from the district court to the Supreme Court. Instead, I shed new light on UM’s defense of affirmative action by showing how the university’s co-optation of racial justice aligned with the rightward shift of the Supreme Court since the 1980s. UM leaders’ preference for diversity over the social justice rationale, their discomfort with enrollment targets, their efforts to make affirmative action serve business interests, and their selective incorporation of social science that promoted the benefits of interracial contact all made UM’s chances of swaying at least one conservative justice more likely.

Gratz emerged in a new political and legal climate. The 1990s witnessed another wave of backlash against racial inclusion initiatives that emerged directly from the national campaign for racial justice waged on college campuses across the country. The minority student protests of the late 1980s weren’t isolated in Ann Arbor. While the Michigan Mandate became one of the nation’s most ambitious and visible responses to campus activism, universities and colleges across the country put new inclusion policies in place. The outcomes of these policies received widespread attention, as Americans were reading about the sudden reversal of a decade of declining black enrollment. “We frankly don’t know all the reasons for this,” Richard Rosser, president of the National Institute of Independent Colleges and Universities, said of the sudden increase in black enrollment. Aggrieved whites thought they knew the answer: new, more aggressive affirmative action programs. By the early 1990s, journalists were documenting what they saw as a renewed backlash movement against racially attentive admissions policies in higher education.²

New efforts to transform the curriculum also brought news headlines. None were as popular in the press as Stanford University’s decision to revise its core curriculum, replacing a required course on Western culture with the class Culture, Ideas, and Values. In 1988, the new course required a few readings produced by women and people of color. The decision came on the heels of student pressure and with the help of Jesse Jackson, who held a rally chanting, “Hey hey, ho ho, Western culture’s got to go.” The usual conservative pundits of the late 1980s made Stanford the symbol of multiculturalism gone awry. Charles Krauthammer of the Washington Post warned that if other universities followed suit, “we will be firmly embarked on another round of cultural destruction.” George Will called the course emblematic of “special-interest scholarship,” in the same vein as Black Studies and Women’s Studies. Dinesh D’Souza called it “force-fed multiculturalism.”³

California became ground zero for the political backlash against higher education’s renewed racial inclusion efforts. In 1995, California’s Republican governor Pete Wilson used his influence with the University of California Board of Regents to ban affirmative action policies in all University of California (UC) institutions. The next year, Wilson and UC Board of Regent member Ward Connerly led a fight to ban racially attentive practices in all state institutions through a state ballot initiative. In 1996, California voters approved Proposition 209, an amendment to California’s constitution that banned “racial preferences” in all public institutions. Two years later, Washington joined California as the second state to ban affirmative action through a state initiative. Conservative columnist Charles Krauthammer announced that conservatives might not have to worry about fighting affirmative action in the Supreme Court anymore. “Affirmative action is dying,” Krauthammer wrote in an opinion piece that was published in newspapers across the country, “and the cause of death will be legislative not judicial.”⁴

Krauthammer’s prediction overlooked the changing legal environment that opened new opportunities for the opponents of affirmative action. Despite the political victories that opponents of affirmative action scored in the 1990s, a group of conservative lawyers were ready to test their luck in court. The cause of affirmative action’s death would be judicial, they thought.

Much had changed in the federal court system since Bakke. By the late 1980s and early 1990s, the opportunities to use the courts to advance conservative interests expanded as Ronald Reagan and George H. W. Bush made their marks on the federal judiciary. Reagan alone appointed 368 federal district and appeals court judges and 3 Supreme Court justices. He also raised William Rehnquist to chief justice. No president in history had appointed so many federal judges. Bush pushed the court even further to the right, replacing the court’s strongest civil rights advocate, Thurgood Marshall, with the conservative black justice Clarence Thomas. It didn’t take long for opponents of affirmative action to take advantage of these appointees.⁵

In 1989, even before Thomas took his seat, the Supreme Court changed the landscape of affirmative action law. The most important case, City of Richmond v. Croson (1989), centered on the constitutional merits of a Richmond, Virginia, program that mandated that 30 percent of public contracts awarded by the city go to minority contractors. Until Croson, the Supreme Court hadn’t agreed on the proper standard of review for racial classifications used by states. Proponents of affirmative action had long argued that the standard of review should depend on whether the racially attentive program in question represented invidious discrimination—practices meant to oppress minority groups—or whether the program represented benign discrimination—practices meant to rectify racial discrimination against minorities. Opponents of affirmative action didn’t see a difference between invidious and benign discrimination. Race represented such a dangerous and suspect category, they argued, that any racially attentive program should be held to the highest standard of judicial review, called strict scrutiny. Under strict scrutiny, an affirmative action program needed to represent a “compelling government interest” and be “narrowly tailored” to meet the purpose of that program.⁶

Croson transformed affirmative action law because, for the first time, a majority of judges agreed that the strict scrutiny standard must be applied to all racially attentive practices created by state and local entities. Another case in 1995 applied this standard to the federal government. In Croson, Sandra Day O’Connor, a Reagan appointee and the new swing vote in affirmative action cases, outlined just what strict scrutiny would mean for local and state entities trying to defend their affirmative action programs. O’Connor divided a compelling government interest, the first prong of strict scrutiny, into a two-step evaluation process. In legal scholar Goodwin Liu’s words, the first test of compelling interest determined “whether a particular government interest is sufficiently important … to justify a racial preference.” The second step in determining compelling interest evaluated whether “a government actor has produced sufficient evidence to substantiate its alleged interest.” Essentially, it asked whether the “stated interest is the actual interest motivating the government actor in the particular case.” A government entity, for example, couldn’t simply state that it was trying to remedy its own discrimination. It faced the evidentiary burden to show that it had discriminated, and remedying that discrimination was the driving motivation behind its affirmative action program. O’Connor’s interpretation of narrow tailoring, the second prong of strict scrutiny, placed even more burdens on government entities. She suggested that any state actor would have to show that no “race-neutral” means could fulfill the same purpose as its affirmative action program.⁷

Croson gave opponents of affirmative action new confidence that they could challenge racially attentive programs in court. It was just a matter of time before conservative lawyers tested the limits of Croson by asking the court to apply the same standards to affirmative action admissions in higher education.

Three years after Croson, journalists expected that Cheryl Hopwood would be the next Allan Bakke. Hopwood represented the ideal plaintiff for an anti–affirmative action case. She fit the narrative pushed by conservatives that affirmative action punished disadvantaged whites. Raised in humble circumstances by her mother, Hopwood had to pay her own way through college. After she graduated from California State University–Sacramento, she established residency in Texas and achieved a respectable LSAT score, but she received a rejection letter after she applied to the University of Texas (UT) Law School.⁸

When she decided to sue UT, Hopwood found support from an emerging force in the United States: the conservative public interest law firm. The first of these firms emerged in the 1970s at the same time that conservative think tanks, such as the Heritage Foundation, found a place in American politics. These conservative firms sought to challenge the liberal political and legal victories of the past decades. The number of conservative public interest firms only increased in the 1980s, as former Reagan staffers looked to build on the administration’s work. One of the newest of these conservative public interest firms, the Center for Individual Rights (CIR), took Hopwood’s case.⁹

In 1996, the Fifth Circuit Court of Appeals ruled in CIR’s Hopwood v. Texas. The judges decided that diversity didn’t meet the compelling interest standard set in Croson. Diversity, in other words, wasn’t a constitutionally permissible justification for affirmative action. The Supreme Court decided not to take the case, limiting the impact of Hopwood to Texas, Louisiana, and Mississippi, but the case gave CIR new confidence and struck new fear in the hearts of affirmative action supporters. There were signs that the University of Michigan might be CIR’s next target.

“Cordial greetings,” the letter began. “Under the provision of the Michigan Freedom of Information Act [Sec.4.1801] I request, hereby, the following information, stated separately for the College of Literature, Science & the Arts, the Law School, and the Medical School of the University of Michigan.” The letter went on to request a series of data points broken down by race, including standardized test scores, grade point averages, and admissions offers for the entering class of 1995. The letter put UM on a path to the Supreme Court.¹⁰

Carl Cohen, the same UM professor who advised Allan Bakke’s lawyers in the famous 1978 anti–affirmative action case, submitted the document request. He found what he was looking for in March 1996. The university sent him the admissions policies for the College of Literature, Science, and the Arts. He found the grids that evaluated white and Asian American applicants differently than underrepresented minority applicants. Hoping to create pressure on UM to end affirmative action, Cohen immediately made these documents public.¹¹

Cohen’s findings came at an opportune time for some of the state’s staunchest affirmative action opponents. The outcomes of the Michigan Mandate, which raised black enrollment in the early 1990s, sparked white backlash in Michigan. State representative David Jaye had been trying to follow California’s model to make Michigan the next state to ban affirmative action in public institutions. Despite Republican control of Michigan’s legislature, Jaye and like-minded colleagues found little success. They managed to pass only one ineffective anti–affirmative action bill, which amended the state’s Elliot-Larsen Civil Rights Act of 1976. The amendment prohibited state employers and universities from “adjusting test scores, using different cut-off scores, or otherwise altering the results of a test on the basis of religion, race, color, national origins, or sex.” UM officials were not worried about the bill because they believed that the university didn’t technically alter test scores or use different “cut-off” scores for white and minority applicants.¹²

When political efforts failed to eliminate affirmative action, Jaye saw Cohen’s FOIA documents as an opportunity to bring a court case against the University of Michigan. He and Deborah Whyman, another state legislator, contacted CIR, hoping the organization would use Cohen’s documents and sue UM. Jaye and Whyman told Michael Greve, a co-founder of CIR, that they would find the plaintiffs. On May 1, without any firm commitment from Greve, Jaye and Whyman, along with two other colleagues, announced that they were looking for potential plaintiffs for an anti–affirmative action court case against UM. Jaye alone received information about 450 potential plaintiffs. In total, the legislators received letters identifying 1,500 potential plaintiffs. Most of the complaints came from parents or grandparents, claiming that their child or grandchild didn’t get into UM because they were white. The politicians forwarded the complaints to the Center for Individual Rights. By September 1997, CIR was interviewing potential plaintiffs. It found Jennifer Gratz and Patrick Hamacher. The next month, CIR filed the lawsuit, claiming that LSA’s undergraduate affirmative action practices violated the Fourteenth Amendment.¹³

After CIR filed Gratz, the university hired the law firm Wilmer, Cutler, & Pickering. John Payton took the lead on the case. Payton was a nationally renowned lawyer with experience in defending affirmative action. He argued on behalf of the city of Richmond in front of the Supreme Court in Croson. Payton faced a difficult decision in Gratz. There were two constitutionally permissible defenses for an affirmative action admissions program. Despite the Hopwood decision, Bakke was still the law of the land outside the three states covered by the Fifth Circuit. Bakke made clear that universities could take race into account in order to achieve the benefits of a diverse student body. Further, although the case ruled that universities couldn’t use affirmative action to correct societal discrimination, Bakke also offered a constitutionally permissible remedial rationale. UM could argue that affirmative action was necessary to correct the university’s own discrimination. These defenses weren’t mutually exclusive; in fact, the University of Texas offered both in Hopwood.¹⁴

Payton, though, believed that diversity offered UM its best defense. This is where the legacy of co-optation likely influenced Payton’s legal strategy. UM officials had long used racial innocence to avoid culpability in the university’s racial disparities. As a result, top-level white administrators didn’t publicly admit that affirmative action intended to address institutional discrimination. Croson made clear that lawyers couldn’t develop a constitutionally permissible justification for an affirmative action program after an institution had already been sued. The justification offered in court had to reflect the institution’s driving motivation behind its affirmative action program. The popular institutional narrative of racial innocence, then, made it difficult to show that addressing institutional discrimination motivated UM’s affirmative action policies. Payton, though, saw references to diversity in many of the official documents produced since the Michigan Mandate.¹⁵

As Payton went to work, UM leaders didn’t leave the institution’s legal defense to lawyers. University officials offered support for Payton’s legal argument about the university’s commitment to diversity by addressing one of the potential problems that the Michigan Mandate posed for lawyers. To satisfy activists, Duderstadt had filled Mandate documents with social justice language. This was especially problematic, as it wasn’t the type of social justice language that offered a constitutionally permissible rationale for affirmative action. There were no references to institutional discrimination. In the Mandate, social justice referenced the institution’s responsibility to rectify societal discrimination outside UM’s walls—the type of social justice rationale that Bakke prohibited. Even worse, this rationale didn’t appear as a passing reference. The Mandate included six full pages that explained its motivations. Two of those pages explained that “first and foremost, the University of Michigan’s commitment to affirmative action and equal opportunity is based on our fundamental social, institutional, and scholarly commitment to freedom, democracy, and social justice.” “Equity and social justice,” the Mandate continued, “are fundamental values of this institution and integral to its scholarly mission. They are the basic reasons for making a commitment to promoting diversity.”¹⁶

Duderstadt resigned in September 1995, two years before Gratz was filed. By the time Lee Bollinger replaced Duderstadt in January 1997, the former UM Law School dean could see a lawsuit coming. Bollinger instructed staff to stop using the term “Michigan Mandate.” In his inauguration speech, he never mentioned the Mandate or affirmative action. University officials also rushed to strip social justice references from all the university’s official documents, ensuring that diversity represented the single documented driving influence behind affirmative action. In 1997, for example, the university’s admissions office made it clear that it sought “students who meet the spirit of contributing to a diverse class.” The office later added to its admissions guidelines a clear statement that “admissions is based on several factors that combine to produce a freshman class that provides a mixture of attributes and characteristics valued by the University.” It’s the university’s “sincere belief,” the guidelines continued, “that this mixture contributes to the education of our students, as well as fulfills the University’s mission to prepare society’s future citizens and leaders.” In 1998, the university’s Senate Assembly released a statement on the “Value of Diversity.” The National Board of Directors of UM’s Michigan Alumni Association did the same. Nancy Cantor and Lee Bollinger also gave speeches and wrote op-eds espousing the university’s commitment to diversity. All these documents that purged references to social justice were introduced as evidence that diversity, and diversity alone, motivated the university’s affirmative action practices. Importantly, they were presented as simply the continuation of policies and ideals introduced during the early years of the Michigan Mandate, not as a significant break from the Mandate’s statements on social justice.¹⁷

To support the diversity defense further, campus leaders wanted to rewrite the history of inclusion at UM. They wanted to show that diversity represented a priority deeply rooted in the university’s core values. Much of this work fell to Nancy Cantor, the university’s new provost and one of the nation’s preeminent social psychologists. At the time, though, none of the high-level officials knew anything about the history of diversity as a core value at UM; they had to create this history for the case. Cantor heard about Laura Calkins, a young historian who was helping UM’s Center for the Education of Women identify documents in its basement that should be preserved in the university’s institutional archives. Cantor called Calkins into her office just a couple of months after CIR filed the anti–affirmative action cases. The provost asked her to look for documents in the university’s archives that could establish diversity as a keystone institutional principle.¹⁸

Calkins went to work, looking through the early records of UM presidents. She struggled to find something Cantor could use. Not a single president in the nineteenth or early twentieth centuries mentioned any educational value in a diverse student body. That shouldn’t be a surprise. UM officials didn’t regularly begin promoting the education value of students from different backgrounds until the 1940s and 1950s, when officials defended admissions policies for international and out-of-state students. And university officials didn’t regularly promote the value of diversity in justifying affirmative action until the early 1980s.¹⁹

The only document Calkins could find that might help Cantor was in the records of James Angell, the university’s third president. In 1879, Angell gave a speech titled “The Higher Education: A Plea for Making It Accessible to All.” Nothing in the document suggested that contact between students of different backgrounds improved education or prepared students to participate in democracy. Instead, the speech defended low tuition rates in order to make higher education accessible to students of all social classes. His justification looked more like the social justice rationales proposed by black student activists than any diversity argument developed later by university administrators. Angell began by suggesting that universities had an obligation to provide education to people of all classes because it was “just.” Then he turned to more utilitarian arguments. It’s here that Angell came closest to contemporary diversity arguments by suggesting that providing education equity had implications for American democracy. But again, this argument resembled that of black student activists, who argued that the university had a responsibility to empower black communities, more than that of contemporary diversity advocates. Angell was worried that higher education exclusively for the wealthy would create an “aristocracy of wealth” that would “endow the rich alone with the tremendous power of trained and cultivated minds.” It would “consign the control of all intellectual and political life to the hands of the rich,” creating bitter class hatred with “no stable equilibrium.” No democracy could survive such turbulence, he suggested. Moreover, he assumed that most of the wealthy segregated themselves in cities. But for democracy to work, he argued, small towns and rural areas needed well-educated individuals to serve in government, schools, and medical facilities. He envisioned universities educating students from these places, and those students returning to serve their communities. For Angell, higher education was a tool to empower the poor and counter the power of the wealthy.²⁰

In Cantor’s hands, though, the document became evidence of the university’s long-standing commitment to the value of diversity. Soon after she received the document from Calkins, Cantor wrote an article in the Michigan Alumnus claiming that Angell’s speech showed a clear connection between the values the university was defending in court and the values of late nineteenth-century university officials. Cantor stretched Angell’s arguments well beyond their intended meaning. She claimed that through affirmative action, the university was “building, as Angell predicted, a lively democracy in which students can challenge each other by virtue of the variety of life experiences.” Nothing in Angell’s speech suggested that students could learn anything from contact with peers from a “variety of life experiences.” Furthermore, she took Angell’s arguments out of context. Cantor claimed that Angell and contemporary officials saw the university as the “essence of democratic living.” It’s true that Angell saw higher education as “the most democratic atmosphere in the world.” But to him, the definition of a democratic atmosphere was a college that gave the highest social status to the smartest individuals, not those with the largest family estates. He never thought about the democratic atmosphere as a place where students learned to get along with people from different backgrounds. Thanks to Cantor’s interpretation, the speech appeared in a footnote in the university’s Supreme Court brief. Although the document never became a core piece of evidence in the university’s legal argument, Cantor’s efforts to find the diversity rationale—and only the diversity rationale—in Angell’s speech represented an important strategy in the case—stripping social justice from UM’s ideals and replacing it with a long-standing commitment to the benefits of diversity.²¹

UM officials also rewrote the origins of the Michigan Mandate. The history of the Mandate posed problems because the initiative was a direct response to black campus activism that demanded a more aggressive affirmative action program to combat institutional racism. Nobody within UCAR or BAM III claimed to be fighting for the educational benefits of a diverse student body. University lawyers needed to silence this activism. James Duderstadt gave lawyers what they needed. In his deposition, Duderstadt claimed that the Michigan Mandate “was stimulated by a growing realization of the importance of the diversity of our campus, our students, our faculty and our staff, to the quality of our academic programs and to the educational experience of our students.” Duderstadt offered little recognition to the students who facilitated that realization or the social justice arguments that became so central to the Michigan Mandate. Lawyers used this statement from Duderstadt’s deposition to show that the educational benefits of diversity drove the university to adopt the affirmative action policies in question.²²

To present diversity as the exclusive motivation behind affirmative action, UM’s legal defense also had to ignore the history of black officials who saw affirmative action as a tool to address the university’s racist practices. The black official who crafted the university’s first affirmative action admissions program, Leonard Sain, had suggested that racially attentive policies were necessary because UM’s admissions and financial aid system identified and supported only middle-class white students. He called the university’s racially exclusionary practices “sins of omission.” J. Frank Yates, who served as the director of CULS and CAAS in the 1970s, explained that the BAM strike and its affirmative action demands were necessary responses to the university’s value system, which was “racist and exclusionary.” Niara Sudarkasa, when she served as associate vice president for academic affairs, called for new affirmative action practices to combat Sjogren’s and Goodman’s policy decisions, which led to the drop in black enrollment in the late 1970s and early 1980s. Charles Moody, a key figure in developing the Michigan Mandate, suggested that the Mandate intended to counter UM’s “corporate culture” of racism. “The first things people have to come to grips with,” Moody told a reporter, “is that racism is still alive and well on this campus.” These statements never appeared in Gratz because UM lawyers chose not to make the constitutionally permissible argument that UM used affirmative action to address institutional discrimination.²³

Silencing these statements was also significant because groups of minority students wanted to intervene and make institutional discrimination an important part of the case. Richard Shaw represented seventeen high school students—sixteen black and one Hispanic—who planned to apply to the University of Michigan. Shaw wanted the court to hear the one remaining remedial defense available to universities: that an institution could pursue affirmative action in order to address its own discrimination. The University of Michigan refused to make this argument, Shaw contended, because confessing to discriminating against minority students would open the university up to potential civil lawsuits. Nevertheless, the remedial defense would be essential in winning the case and preserving underrepresented students’ access, Shaw contended.²⁴

UM’s lawyers fought against Shaw’s intervention in the case. Payton filed a motion against intervention, arguing that UM was well prepared to defend the interests of the prospective minority applicants. The district court judge agreed with Payton and quickly rejected Shaw’s motion to intervene. CIR and UM continued to prepare for the case, taking depositions and moving through the discovery process without Shaw. Shaw, though, took his case to the Sixth Circuit Court of Appeals. In August 1999, just over a year after the district court rejected intervention, the Sixth Circuit ordered the district court to accept the intervenors as a party in the case. Despite the ruling, UM continued to fight against the intervenors’ access to institutional documents, and the university refused to give the intervenors time in oral arguments when the case eventually reached the Supreme Court.²⁵

Still, when given the opportunity, Shaw challenged the university’s claim of racial innocence embedded in the diversity defense and offered a different history of institutional change. To show that affirmative action was necessary to combat UM’s institutional racism, he hired education historian James Anderson to investigate UM’s long history of discrimination. Anderson uncovered a history (pre-1960s) of segregated dormitories and policies that allowed campus organizations to discriminate. He also showed that black activists, not benevolent administrators, were responsible for institutional change. Administrators never pursued dramatic institutional changes—like the Michigan Mandate—because of a deep commitment to diversity. Anderson portrayed UM officials as reluctant supporters of racial inclusion after BAM I, BAM II, and BAM III. Despite the institutional changes that unfolded after these protests, Anderson argued that administrators tolerated, even accepted, racial disparities and a poor racial climate.²⁶

Shaw also wanted to show that all the “color-blind” criteria in UM’s admissions system harmed underrepresented students, making affirmative action a necessary remedial tool to rectify the institution’s discrimination. To do this, Shaw hired a group of social scientists to look at UM’s admissions practices. William Trent, a sociologist in the University of Illinois’s Department of Educational Policy Studies, analyzed UM’s admissions tools. After CIR filed the case, UM eliminated the grid system and introduced a unified point system to evaluate all students. Students were awarded points for various factors, including grade point averages, essays, recommendation letters, extracurricular activities, and SAT scores. Underrepresented students received twenty automatic points in order to get results similar to the grid evaluations. Many of the basic components of the grid system and the point system, though, remained. For example, the point system continued to use the SCUGA method to evaluate a students’ high school GPA and calculate point totals. The “S” factor evaluated the quality of a students’ high school. Trent found that no more than two predominantly black high schools in Michigan received an “S” factor score, which would benefit an applicant in the admissions process. The “C,” or curriculum, factor, which gave students points for taking AP and IB courses, also disadvantaged black students. Trent found a strong correlation between students’ racial identity and the number of advanced courses offered in students’ high schools. The more black students in a particular school, the fewer AP and IB courses were offered. He also found a strong correlation between standardized test scores and the number of AP/IB courses a student took. This meant that when UM took the SAT and the “C” factor into account, underrepresented students were “doubly disadvantaged.”²⁷

Trent pressed further, looking at the final two factors in SCUGA. In the areas where students could benefit from the “G,” or geography, factor, less than 1 percent of the population was black. Finally, few black students benefited from the “A,” or alumni, factor. Between 1995 and 1998, 75 percent of the applicants reporting an alumni connection were white, whereas 4 percent were black. The only factor that benefited black students was the “U” factor, but it didn’t overcome the disadvantages imposed by the other factors.²⁸

All this showed, according to Shaw, that affirmative action was necessary to redress the university’s discriminatory “color-blind” admissions practices. In doing so, he asked the court to reconsider O’Connor’s standard, set in Croson, that argued that any rationale presented in court needed to reflect the driving purpose behind an institution’s affirmative action program. That standard asked institutions to implicate themselves in discrimination, Shaw argued—something that institutions would almost always avoid because it put them at risk for civil rights lawsuits. The standard in Croson, then, placed an undue burden that prohibited an important constitutionally permissible rationale for affirmative action.²⁹

The university’s lawyers did eventually incorporate a history of discrimination into its argument, just not in the way the intervenors preferred. UM lawyers needed to show why the experience of diversity on college campuses was a compelling government interest. Part of this argument depended on showing that students came to UM without much experience with interracial contact and how the experience with diversity would improve U.S. democracy. The university contacted Thomas Sugrue, one of the preeminent historians of race and urban inequality in the United States. In his expert report, Sugrue revealed that segregation in Detroit was worse in 1990 than it had been in 1960. The state of Michigan didn’t fare much better. Michigan’s schools were the fourth most segregated in the nation—more segregated than any state in the South. In Gratz, university lawyers used this history of discrimination outside campus walls to show the necessity of creating spaces of interracial contact at UM. “Americans tend to enter college without having had meaningful and sustained contact with people from races other than their own,” the lawyers concluded using Sugrue’s report. “This lack of contact with one another fosters misconceptions and mistrust on all sides and affords little or no opportunity either to disrupt the perpetuation of racial stereotypes or to experience the richness of different racial and ethnic communities.” Inequality was only useful when it served UM’s diversity argument.³⁰

The empirical evidence used to support the diversity defense revealed another legacy of co-optation in Gratz. UM leaders selectively incorporated social science to advance their interests. UM’s lawyers relied on social science evidence produced in previous years to offer an idyllic picture of race on UM’s campus, where diversity improved educational outcomes and taught students how to interact positively with different groups.

Patricia Gurin, professor of psychology and women’s studies at UM, wrote the expert report that showed the benefits of a diverse student body. Gurin was a renown social psychologist who wrote extensively about intergroup relations. She drew on three studies that began before the Gratz case was filed in district court. Two of these empirical studies were conducted at the University of Michigan during the Michigan Mandate era—the Michigan Student Study, covered in chapter 7, and a similar study on students by the Program on Intergroup Relations, Conflict, and Community. Gurin also used a national database provided by the Cooperative Institutional Research Program, which surveyed over nine thousand students nationwide on topics related to race relations.³¹

Gurin’s analysis of these studies provided the empirical foundation for Payton’s claims that a diverse student body represented a compelling government interest that justified using race as a factor in admissions. Gurin claimed that the studies showed that diverse student bodies led to positive learning and democracy outcomes. Without diversity, the quality of higher education and universities’ efforts to prepare students for a heterogeneous democracy would be in peril.³²

To show how diversity improved learning outcomes, she drew on decades of psychological literature on critical thinking and studies of students’ academic growth. Scholars had long questioned whether providing a college-level education, without any attention to the larger environment, produced “deep and complex thinking.” Students often came to college campuses, Gurin wrote, in a state of “mindlessness”—a commitment to particular ideas that had become so routine that thinking had become unnecessary. They hadn’t been taught the value of critical thinking and instead followed scripts that repeated information and values taught to them before they arrived on campus. Students couldn’t easily break out of this “mindlessness.” Gurin argued that racial and ethnic diversity represented an essential tool in getting students to question and evaluate the ideas they brought to campus. Because most UM students came from homogeneous communities, diversity created a new and unfamiliar environment, while classes encouraged students to see the world from multiple perspectives. In the end, Gurin analyzed the data of the three studies and found a positive relationship between the degree of students’ interracial contact and the growth of students’ critical-thinking skills. She concluded that diversity got students to “think deeply and effortfully to take into account multiple points of view, evaluate evidentiary claims, and draw conclusions based on conceptual soundness.”³³

Gurin also claimed that the data revealed positive democracy-related outcomes. Gratz worked its way through the court system in the midst of a contentious national debate about the future of American democracy as whites’ share of the national population decreased. Pat Buchanan’s presidential runs in the 1990s, for example, stoked fears about the incompatibility between democracy and diversity. Gurin placed high stakes on affirmative action in higher education, offering evidence that a diverse educational experience was vital for the future of a heterogeneous democracy. On a diverse campus, where students met each other as equals and participated in civil discourse, students gained the necessary skills to lead and participate in a twenty-first-century American democracy. Those fundamental skills included accepting conflict as a normal part of life, valuing difference, and taking other perspectives into account. Gurin revealed that a diverse campus changed students. They were more likely to live in heterogeneous communities and discuss racial and social issues across racial lines after they graduated.³⁴

Evidence that didn’t fit UM’s legal argument never found a prominent place in Gurin’s report. Instead, Gurin offered a positive portrayal of the university’s racial climate. Only a small section of her report documented black students’ negative experiences on campus. The survey evidence Gurin relied on didn’t show that black students experienced positive educational and democracy-related outcomes from their contact with white students. Black students’ survey responses revealed the importance of relationships with other black students. Gurin tried to downplay these results by suggesting that the data didn’t show positive learning and democracy-related outcomes for black students because of the smaller pool of survey responses. Still, Gurin discussed the potential consequences of ending affirmative action and the subsequent decline in the number of black students on campus. The evidence suggested that there was a correlation between black attrition and the number of black students on campus. The university could expect black student attrition to rise if black enrollment went down, she argued. Relegated to the appendix, though, none of this was part of Gurin’s key arguments in the expert report. It never became part of the university’s legal briefs, either.³⁵

These efforts to downplay black students’ survey responses fit neatly into the university’s long-standing practice of discounting black students’ social alienation. Since the 1960s, university leaders had prioritized changing white students’ behaviors over addressing black students’ social isolation. Since the mid-1970s, officials had often ignored the issue of social isolation altogether.

The intervenors offered an alternative portrayal of the university’s racial climate. Rather than arguing that affirmative action was necessary to create the type of student body that created positive educational and democracy-related outcomes, Shaw argued that affirmative action was necessary to help mediate against the impact of the university’s poor racial climate—a racial climate produced and maintained by institutional racism. Shaw’s experts showed that declining underrepresented student numbers would negatively affect the university’s racial climate and, in turn, the success of underrepresented students on campus.³⁶

Walter Allen, former UM professor and then sociologist at the University of California–Los Angeles, and Joe Feagin, a sociologist at the University of Florida, served as Shaw’s experts. Recall that Allen was the UM social scientist in the 1980s who presented evidence that connected black students’ attrition at UM with the racial climate. Campus leaders didn’t listen. Here was his opportunity to present that information in court. Feagin and Allen concluded that UM’s racial climate—and the climate at HWCUs more broadly—was detrimental to the success of underrepresented students. Unlike Gurin’s report, Feagin used words like “horrible” to describe the university’s racial climate. Black and Hispanic students endured racist jokes, stereotypes, exclusion from social groups, and heavier policing. The two social scientists highlighted the racist graffiti in campus dorms, racist literature on campus buildings, and racial epithets that black and Hispanic students saw and heard during their time at UM. A “critical mass” of black students, the scholars’ argued, was vital for black students to succeed in a racial climate like this. In Feagin’s words, “the anxiety and fear generated by being a Black person in a mostly White university are mitigated by the presence and support of other Black students.”³⁷

Their research represented one of the only moments in Gratz where underrepresented students’ actual voices entered the case. Allen conducted focus groups with undergraduate students at UM in April 2000. He submitted quotes from students of color who questioned the university’s commitment to diversity. One student, identified as a woman of color, said in a focus group: “The university promotes this image of being diverse and interested in multiculturalism but I think it’s problematic because a lot of times we don’t take direct action in doing so.” A Hispanic student noted that the “environment is such that it’s hostile for minorities to succeed because there are, let’s say, fifty people and then there’s one minority. And it’s very hard for minorities to succeed in that position because it’s hard for him to relate to the people.” One black woman said, “I can’t stand this school and I’m ready to leave.” The focus groups revealed a hostile racial climate that undermined underrepresented students’ academic performance and made them feel socially isolated.³⁸

“Critical mass” eventually made it into the University of Michigan’s argument, just not in the way the intervenors would have hoped. When the case made its way to the Sixth Circuit and then the Supreme Court, Payton began arguing that the absence of a critical mass of minority students caused harm. A critical mass was necessary, according to Payton, to “ensure that minority students do not feel isolated or pressured to ‘represent’ their racial or ethnic group.” Here Payton sounded like the intervenors. But he departed from the intervenors when he explained why social isolation was problematic. It wasn’t a problem because it would lead to black student attrition; it was a problem because black students wouldn’t “feel comfortable acting as individuals” and interacting with white students, all of which was necessary to produce the learning and democracy outcomes the university wanted. In other words, without critical mass, minority students’ presence on campus wouldn’t serve the educational interests of the institution. Payton transformed critical mass to make the university the victim of low minority enrollment numbers, ignoring the harm minority students’ faced on a campus that was overwhelmingly white.³⁹

Ambiguity was at the heart of the University of Michigan’s defense. Payton tried to avoid referencing an enrollment goal or target for underrepresented minority students. Instead, Payton preferred to use ambiguous terms like “meaningful numbers” and “more than token numbers.” Clearly, this was part of a legal strategy that tried to appease the moderate conservatives on the court. But this ambiguity was already embedded in the university’s co-optation strategy. Since the 1980s, university administrators resisted efforts to use numerical goals for affirmative action admissions. Again, UM’s co-optation strategies worked in harmony with its legal defense.

UM administrators had long preferred ambiguous affirmative action goals. Since the 1960s, UM leaders tried to resist efforts by activists and federal officials to make specific enrollment and hiring targets, and hold people accountable if those targets weren’t met. Administrators favored ambiguous goals because they preferred to measure the university’s commitment to inclusion based on the amount of effort UM officials devoted to inclusion, not by the outcomes of those efforts. It was easier to tell a story about UM’s commitment to inclusion when officials could point to all the money, programs, and staff members devoted to inclusion. Numerical targets led to annual stories of the university’s failure to create the types of outcomes administrators promised.

BAM’s 10 percent enrollment concession represented a brief period in which administrators reluctantly agreed to enrollment targets. But by the early 1980s, Shapiro used diversity to return to the university’s preferred position of ambiguous enrollment goals. Even when protesters again fought for numerical targets during the UCAR/BAM III protests in 1987, Shapiro offered only verbal support. These enrollment goals never made it into the Six-Point Plan. When Duderstadt took over and crafted the Michigan Mandate, he also resisted enrollment targets, leaving goals up to individual units.

This co-optation strategy worked to Payton’s benefit. Powell’s opinion in Bakke constricted Payton’s choices. Powell left uncertainty about how much attention universities could pay to the number of underrepresented students on campus in making admissions decisions. Clearly, Bakke made quotas illegal. But Powell’s endorsement of goals and targets were left to interpretation. Powell stated that diverse student bodies “cannot be provided without some attention to numbers,” and he went further in arguing that “there is some relationship between numbers and achieving the benefits to be derived from diversity.” But that only led Powell to conclude that admissions committees had to pay “some attention to distribution among many types and categories of students” to create a diverse student body. What did “some attention” mean?

Payton took a conservative approach when he answered that question. When pushed about the university’s attention to numbers, he argued that Powell allowed the university to consider black enrollment numbers when crafting admissions policies. But given the rightward shift of the court, Payton was never willing to suggest that UM officials were trying to achieve a specific numerical black enrollment goal. “Meaningful numbers,” “more than token numbers,” and “critical mass”—all used interchangeably—became popular tools to preserve the ambiguity of the university’s goals. And UM officials’ resistance to specific targets meant that Payton didn’t have to explain away numerical goals in internal documents. Deploying ambiguity in court did require some legal skill. In oral arguments at the Supreme Court, the ambiguity of critical mass came to a head. When Payton suggested that critical mass required “meaningful numbers,” Chief Justice William Rehnquist pushed Payton for a more specific definition.

REHNQUIST: Mr. Payton, what is a meaningful number?

PAYTON: It’s what we’ve been referring to as critical mass.

REHNQUIST: Okay, what is critical mass?

PAYTON: Critical mass is when you have enough of those students so they feel comfortable acting as individuals.

REHNQUIST: How do you know that?

PAYTON: I think you know it, because as educators, the educators see it in the students that come before them, they see it on campus.

Payton danced around any definition of critical mass that tied affirmative action to numerical goals or targets. According to Payton, educators at UM could simply tell when affirmative action successfully created a critical mass. When pushed further, Payton suggested that the university had been able to achieve the benefits of diversity when underrepresented students constituted between 12 and 17 percent of the student body. Still, Payton refused to argue that the university was committed to a fixed percentage range.⁴⁰

This was an area where Payton and the intervenors agreed. Likely because Shaw, too, saw the legal problems in attaching numbers to affirmative action, the intervenors avoided defining critical mass. While Feagin and Allen disagreed with Payton about the purpose of critical mass, the two social scientists were just as vague about how many minority students were necessary to achieve it. For them, the university achieved critical mass when underrepresented “students are able to form the necessary community and social support networks associated with success.” The way the university would measure that was just as vague as Payton’s definition.⁴¹

The university’s argument against so-called race-neutral alternatives to affirmative action were rooted in UM’s attack on working-class black students in Detroit, which began in the mid-1970s. UM officials opposed race-neutral alternatives primarily because they would force the university to return to inclusion practices that focused on working-class black students living in cities. UM was trying to defend its co-optation of affirmative action, which allowed officials to recruit and admit mostly middle-class students living in the nation’s suburbs. The way UM crafted this argument fit well with the court’s shift away from remedial rationales.

“Race-neutral” alternatives became an important part of the case because of Croson. The second prong of strict scrutiny required any affirmative action program to be “narrowly tailored” to achieve the stated “compelling government interest.” In Croson, O’Connor suggested that affirmative action hiring programs needed to show that “race-neutral” alternatives couldn’t produce similar results compared to the racially attentive program in question. Gratz’s lawyers tried to hold UM’s admissions program to the same standard.

Gratz’s lawyers argued that UM put little consideration into the available race-neutral alternatives that could provide similar outcomes as UM’s point system. By the time the case reached the Supreme Court, Texas, California, and Florida had created race-neutral plans in response to court decisions, referendums, or executive orders that banned racially attentive admissions policies. Texas’s plan, for example, gave in-state students who graduated in the top 10 percent of their high school class automatic admission to the state’s top institutions. The architects of the plan took advantage of the state’s segregated schools. Since black students often went to schools that were overwhelmingly black, the system would continue to produce a sizable pool of black students who were eligible to attend the state’s top public universities.⁴²

Payton made clear what was at stake in rejecting race-neutral plans. UM’s lawyers argued that the race-neutral percentage programs would force the university to admit underrepresented students with poor academic credentials to pursue a diverse student body. Without saying so directly, they suggested that race-neutral policies would bring too many black students from Detroit to UM. The university’s lawyers tried to make this argument more subtly by stressing the importance of geographical diversity within the underrepresented minority student population. Lawyers argued that a percentage plan, like Texas’s 10 percent plan, would force UM to admit black students from a small geographical area—meaning Detroit—which would frustrate “the interest in geographic and other diversity within all sections of the student body.” Of course, when Sjogren and Goodman crafted admissions and financial aid policies that moved affirmative action recruiting and admissions away from Detroit, administrators were concerned about getting what they called “better” black students. At no time did administrators suggest that they were interested in the benefits of a black student population from all corners of America. Geographic diversity served as a benevolent cover for the university’s interest in rationalizing the exclusion of low-income black students in the state’s urban areas.⁴³

Lawyers made further claims that harked back to university administrators’ resistance to black activism. According to Payton’s team, a race-neutral alternative would require selective universities to “radically alter their missions,” as they would no longer be able to “enroll a highly qualified, broadly diverse student body.” UM’s lawyers argued that such a plan would undermine the university’s “character, reputation, and educational excellence.” Black students were important, in other words, but elite universities could only have a certain type of black student to be inclusive and excellent. Even if a race-neutral plan could sustain black enrollment numbers, “the University would be an entirely different institution,” Payton argued. These statements resembled William Haber’s memo during the BAM strike in 1970. Haber concluded that BAM’s enrollment demands would “adversely affect the position of academic preeminence which it has achieved over the years” and “drastically change the character of the University.” When these words circulated around campus in 1970, they helped BAM gain widespread support for a campus strike. In the early twenty-first century, Payton hoped these words would save UM’s affirmative action practices in court.⁴⁴

In the mid-1970s, UM officials didn’t have any internal evidence to support their attack on working-class black students from Detroit—and they still didn’t have any evidence twenty years later. Thus, Payton turned to William Bowen for expert testimony. Bowen provided evidence from his recent book, The Shape of the River—a widely read defense of affirmative action, which he wrote with Derek Bok. The two authors were former Ivy League presidents in the 1970s and 1980s. Examining decades of data on minority students at the nation’s most selective institutions, Bowen and Bok challenged the most popular conservative arguments against affirmative action, namely that black students weren’t prepared for study at elite universities and would be better served by less selective institutions—an argument popularly known as “mismatch theory.”⁴⁵

A small section of the book that Bowen relied on in his expert report proved especially important for UM’s defense. Bowen and Bok argued that alternatives to race-based affirmative action could never sustain minority enrollment as long as UM wanted a student body that was both “academically excellent and diverse.” Bowen and Bok were more explicit than UM’s lawyers about the background of these black students, who would preserve the academic excellence of the university. Affirmative action allowed selective universities, like UM, to recruit middle-class black students with the academic credentials that could sustain the academic standards of elite schools, the two authors submitted. Alternatives to affirmative action, such as class-based selection tools, were flawed because there were simply too few low-income black students who could meet the admissions criteria of selective universities. They went even further, suggesting that current affirmative action admissions practices bring in minority students with future leadership potential in politics and business. The assumption here was that only middle-class black students had the potential to serve in these positions. It shouldn’t have surprised anyone that Bowen and Bok would make this type of argument. These were two Ivy League presidents who served during the era of racial retrenchment in higher education. Just like UM administrators, they were unapologetic about shifting affirmative action practices that focused on middle-class black students outside cities.⁴⁶

In The Shape of the River, Bowen and Bok used SAT scores and grades to show that few low-income black students could meet selective institutions’ academic criteria. This reflected shifting assumptions in the mid-1970s that institutions could successfully use the SAT to predict black students’ performance effectively. The most problematic evidence showed that over 70 percent of black students at selective institutions came from middle-class families. To Bowen and Bok, this again showed that only middle-class black students were prepared for elite study. What it really showed was the outcomes of practices at elite universities that excluded low-income black students who had performed well in previous years. They offered no data that revealed that low-income black students had begun to perform poorly. Their argument about race and social class represented selective universities’ version of mismatch, which relied on evidence that was as incomplete and problematic as the evidence in conservatives’ mismatch theory. Nevertheless, Bowen’s expert report became key evidence for UM’s attack on race-neutral alternatives in the Gratz case.⁴⁷

Other universities came to UM’s defense, echoing some of the same arguments Bowen offered in his expert report. Four public universities joined together to submit an amicus brief. Two Pennsylvania universities included in the brief—Temple University and the University of Pittsburgh—showed that they were especially concerned about the prospect of depending on low-income black students from the state’s cities if they were forced to adopt a percentage plan similar to Texas’s 10 percent plan. They used the Philadelphia school district as an example. Temple and the University of Pittsburgh pointed to the fact that the state of Pennsylvania had recently assumed supervision over the Philadelphia school district because “the education provided … was deemed to be so inadequate in preparing students.” Given the state of Philadelphia’s schools, the two universities argued that an admissions plan that offered admission to the top 10 percent of each high school’s graduating class would force them to admit Philadelphia students who weren’t as prepared to compete at selective universities as black students outside the city who didn’t finish at the top of their high school class. While the brief never mentioned middle-class black students, it was a thinly veiled argument that these schools preferred middle-class black students educated outside the state’s cities.⁴⁸

Private universities rang in with similar concerns in their own briefs, as opponents could still argue that private universities could adopt a class-based program. A group of the nation’s most prestigious liberal arts colleges, including Amherst College, Williams College, and Swarthmore College, argued against class-based alternatives to affirmative action by suggesting that “it is precisely the ‘middle class’ students from minority backgrounds who, research and experience shows, are most likely to succeed.” There were no code words in this statement.⁴⁹

The issue of social class, of course, wasn’t the only issue that drove universities’ resistance to race-neutral alternatives. Race-neutral plans were anything but race neutral. They were simply another form of race-based affirmative action that conservatives preferred. While these plans didn’t take race into account at the point of selecting students, they were clearly race conscious. Consider Texas’s 10 percent plan, which the state implemented in the aftermath of Hopwood. Legislators consciously created the plan with the racially attentive motivation to try to preserve the underrepresented minority enrollment in the state’s most selective institutions. They knew that the 10 percent plan would continue to produce a sizable pool of black students who were eligible to attend the state’s top public universities because much of the state’s public school system remained racially segregated. Since black students often went to schools that were overwhelmingly black, legislators knew that a significant number of black students would qualify for admission. The fact that these plans took race into account meant that they would be open to future lawsuits.⁵⁰

The percentage plans also wouldn’t work well for public universities in many states. UM’s lawyers pointed out that the percentage plans couldn’t work in the state of Michigan because the state’s small Hispanic population wouldn’t support a diverse student body, as the vast majority of Hispanic students at UM came from outside the state. Private universities offered another layer of criticism to race-neutral alternatives. Because their student enrollments were small and they served a national population, they could never guarantee admission to even the top 1 percent of high school graduates.⁵¹

All these arguments served UM’s goal of preserving an affirmative action program that focused on middle-class underrepresented students living outside cities. Even the intervenors never critiqued the university’s socioeconomic and geographic preferences. Their argument suggested that all underrepresented students suffered from the university’s discriminatory admissions practice equally, regardless of social class and geography. UM and their allies, then, advanced a critique of low-income black students in cities without any rebuttal in Gratz. The legacy of co-optation, again, found a prominent place in UM’s legal defense.⁵²

Finally, UM’s co-optation practices made it easy for lawyers to make an argument about the corporate interests in affirmative action admissions. UM had long tailored its affirmative action defense to the interest of corporations. Beginning in the early 1960s, when Hobart Taylor intervened on behalf of the PCEEO, UM officials saw affirmative action admissions as a tool to help companies fulfill their federal affirmative action hiring responsibilities. UM leaders would go on to emphasize that relationship in order to get more funding for the Opportunity Program from companies. In the 1980s and 1990s, diversity helped sustain that relationship, as UM officials suggested that diversity-trained students could compete in a global marketplace. At every turn, UM leaders found ways to reframe the goals of activists to serve the interests of businesses.

When CIR filed the case, UM courted businesses to write amicus briefs to support the university’s affirmative action practices. Given UM’s long history of connecting affirmative action admissions to business interests, it should be no surprise that corporations came to UM’s defense. It also helped that diversity became a corporate strategy to improve competitiveness beginning in the 1980s and early 1990s. When the threat of federal equal employment lawsuits declined during the Reagan administration, human resources officials began to use diversity to reframe affirmative action hiring so that it served the profit-driven interests of businesses.⁵³

Companies submitted four separate amicus briefs that supported the University of Michigan in Gratz. General Motors, operating less than an hour drive from Ann Arbor, was the first to lend its support. Sixty-five other major corporations, including 3M, Nike, Microsoft, and Boeing, joined together in another brief. The MTV Networks (MTVN), which included popular television stations such as MTV, VH1, Nickelodeon, and Country Music Television, submitted its own brief. Finally, eighteen media companies, representing television, radio, print, and cable media, joined to support UM’s affirmative action practices. Together, the briefs argued that businesses depended on selective universities’ affirmative action practices to produce a diverse workforce trained in cross-cultural understanding.⁵⁴

One of the popular arguments in the briefs suggested that diversity produced innovation. These companies found that a diverse workforce brought new approaches to problem solving and new ideas that produced a creative tension within companies that avoided the type of group thinking that kept companies stagnant. They worried that ending affirmative action admissions would harm their ability to cultivate a diverse workforce and subsequently stymie the innovative thinking that was essential to their market competitiveness.

These briefs also explained how diversity helped companies serve customers and clients. GM and the sixty-five leading businesses emphasized the necessity of diversity to compete in a global marketplace. GM and 3M sold products in about two hundred countries. Boeing sold 70 percent of its commercial aircrafts outside the United States. These companies wanted more employees of color to serve international clients and customers. All the companies submitting amicus briefs also argued that diverse workforces made them more competitive in serving minority communities in the United States. The media companies understood that communities of color wanted to see and read the perspectives of other people of color. Minority journalists and whites trained in cross-cultural understanding could also get better stories in these communities because they understood how to talk to people of color, one brief argued. MTVN argued that a diverse workforce was vital in cultivating its multicultural brand, which it wanted to sell to all communities in the United States.⁵⁵

Finally, these companies argued that access to a diverse workforce trained in cross-cultural understanding was essential to improving employee relations. Racial tension inside companies was bad for business. It made it difficult for companies to retain valuable employees, leading to turnover and costly recruiting and hiring initiatives. It also led to costly discrimination lawsuits. Companies made it clear that they didn’t want to take on the responsibility of training employees in cross-cultural understanding. As GM explained, businesses were “commercial enterprises, not educational entities.” Universities had pedagogical resources that businesses lacked, which made campuses the ideal location to teach future employees cross-cultural skills. Businesses made it clear that they now expected employees to get those skills on college campuses. Eliminating affirmative action admissions would hinder that training and shift a costly burden onto businesses, the argument went.⁵⁶

On June 23, 2003, the Supreme Court released its ruling in Gratz and Grutter. The court upheld the University of Michigan’s interest in using race as a factor in admissions to create a diverse student body, but it struck down LSA’s specific affirmative action practices. Gratz ruled that the old admissions grids based on race and the new system that automatically assigned the same number of points to all underrepresented minority students violated the Fourteenth Amendment. Instead, the court identified the Law School’s holistic admissions system in Grutter—which evaluated each minority applicant individually and didn’t assign a specific weight to underrepresented status—as an example of a constitutionally permissible affirmative action program.⁵⁷

On the surface, Gratz might look like a disastrous loss for undergraduate affirmative action admissions at the University of Michigan. The College of Literature, Science, and the Arts, after all, would have to scrap its entire admissions system and create new affirmative action practices to comply with the ruling. But, taken with Grutter, Gratz represented a victory for University of Michigan leaders. The rulings allowed UM to continue to use race as a factor in admissions without disrupting any of the co-optation tools of the past decades. The court endorsed diversity’s racial innocence narrative and its ambiguity—both of which the university used to wrestle control of inclusion from campus activists. The court endorsed the university’s hierarchy of values, which saw the university’s interest in maintaining its elite status as more important than its interest in creating a diverse student body. The ruling praised the model multiracial community’s goal to improve relationships between white and minority students, while ignoring the persistent problems black students faced within UM’s racial climate. Finally, the court embraced a brand of affirmative action that focused on recruiting and admitting middle-class black students outside cities.⁵⁸

Because the court ruled on Gratz and Grutter at the same time, and UM presented almost identical arguments in both cases, the court didn’t outline diversity’s “compelling government interest” in both opinions. Instead, Chief Justice Rehnquist used the majority opinion in Gratz to explain why UM’s specific admissions practices violated the Constitution. He referred readers to Justice O’Connor’s majority opinion in Grutter for the court’s decision that explained why diversity represented a constitutionally permissible justification for affirmative action in higher education. O’Connor made clear that she was overwhelmed by the evidence that diversity produced important benefits inside and outside higher education. Gurin’s report convinced O’Connor that diversity was vital in producing the best educational outcomes and in preserving democracy. The support from businesses also impressed her, as she contended that a diverse student body was essential to the United States to compete in a global marketplace.⁵⁹

In embracing diversity, she ignored the intervenors’ remedial argument and endorsed the university’s racial innocence narrative. She praised the university for its interest in pursuing the benefits of diversity. These benefits improved education and helped the nation. Despite the university’s long history of discrimination and racial disparities in its student body and workforce, the university had become a well-intentioned institution with the best interests of all its students in mind. By ignoring the intervenors’ brief, O’Connor’s decision gave the university even more support for its preference for the diversity framework over social justice.⁶⁰

Important for the preservation of UM’s co-optation techniques, she embraced the ambiguity of diversity. Powell’s decision in Bakke granted universities the ability to pay attention to numbers, but UM lawyers pitched a concept of diversity without any numerical goals. “Meaningful numbers” and “critical mass” were ambiguous goals without any coherent measuring tools. This was the type of ambiguity that UM administrators preferred, as they had long tried to avoid numerical targets in order to avoid accountability. It was also the type of ambiguity that O’Connor preferred. In celebrating UM’s vague concept of diversity, with no numerical targets or measurable criteria, O’Connor further eroded the ability of activists to push for enrollment targets.⁶¹

O’Connor also endorsed the university’s hierarchy of values. UM had always seen maintaining its elite status as its most important priority. UM leaders accepted inclusion initiatives only so long as they didn’t disrupt the institution’s status. O’Connor preserved this hierarchy of values when she embraced the university’s argument against race-neutral alternatives. She argued that UM shouldn’t have “to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups.” In other words, UM should be able to keep a value system that prioritized its elite status over racial equity.⁶²

While Gratz struck down LSA’s specific practices, then, the Gratz and Grutter decisions allowed LSA to create a more holistic admissions system that preserved the fundamental principles of co-optation put in place since the mid-1970s. Neither decision paid any attention to the socioeconomic background or location of underrepresented minority students who gained access to UM. The majority opinions paid no attention to the fact that the weight UM placed on standardized tests produced racial disparities and put low-income minority students at a special disadvantage. None of the justices raised concerns about the amicus curiae who stated explicitly that they didn’t want to create an alternative affirmative action system that brought low-income minority students from cities to their schools. Only one liberal justice, Ruth Bader Ginsberg, addressed social class at all. In her dissent in Gratz, she outlined the persistent inequality in the United States in defending the constitutional merits of UM’s undergraduate admissions system. “African-American and Hispanic children are all too often educated in poverty-stricken and underperforming schools,” she wrote. But she never recognized that UM’s affirmative action program didn’t serve those students. In the aftermath of the rulings, UM could simply reconstruct an undergraduate affirmative action program that focused on the same middle-class underrepresented students going to high schools outside cities. This represented a huge victory for UM leaders.⁶³

Ironically, Clarence Thomas provided the only argument that even came close to the claims of the intervenors. In his dissent in Grutter, Thomas offered a stinging critique of standardized testing. According to Thomas, the University of Michigan chose to use admissions tests that officials understood would produce racially skewed results. These were “self-inflicted wounds” of UM’s “own choosing,” Thomas argued.⁶⁴

Thomas also took issue with the idea that admitting students with high standardized test scores was the only way to preserve a school’s elite status. This mind-set, he argued, was the product of choices that higher education leaders had made over the last century. If university leaders created a system that produced racial disparities, they had the burden to create a new elite system that didn’t require affirmative action to offer access. At times, Thomas’s dissent looked even closer to UM’s Black Action Movement of 1970 than that of the intervenors. The intervenors argued that discriminatory standardized tests required an affirmative action program. Thomas seemed to be calling for an entirely new system that didn’t measure status by the standardized test scores that produced racial disparities.⁶⁵

Still, Thomas didn’t disappoint conservatives. Even after his critique of standardized tests, he turned to mismatch theory to argue that affirmative action brought too many minority students who weren’t prepared to succeed at elite schools. Mismatch proponents argued that many minority students at elite universities would be better served at less selective schools. Most of these proponents used standardized test scores—the same scores that Thomas criticized—as evidence that minority students weren’t capable of performing at selective institutions.⁶⁶

This was the type of argument UM had set itself up for since the 1960s. UM leaders had created and sustained an admissions system that produced racial disparities. Just as importantly, this system produced an institutional knowledge about black students that played into the hands of conservatives. The knowledge that UM released to the public showed how black students scored lower on SAT scores and left the university before graduating at higher rates than did whites, giving mismatch theorists ammunition. UM officials made the situation worse when they withheld from the public important data from the early 1970s that showed that academic deficiency didn’t explain black students’ attrition rates.⁶⁷

In defending an admissions system that produced racial disparities, UM leaders also gave conservatives like Thomas the opportunity to claim that they were the true champions of black students. Affirmative action has always been a tool of co-optation—an attempt to make only minor modifications to a discriminatory system. By preserving a discriminatory system and never offering a new admissions process built on justice and equity, UM leaders gave conservatives an opening to offer alternatives built on conservative principles. These conservative alternatives never matched black campus activists’ vision for a revolution of values and priorities in higher education. Nevertheless, UM’s reluctance to ever question an admissions system that had long produced racial inequality made Thomas’s dissent appear, at times, closer to black activists’ speeches and writings than UM’s defense of affirmative action.

The day the Supreme Court released its opinions in Gratz and Grutter, Students Supporting Affirmative Action held a celebration on UM’s campus. They held signs that read “DIVERSITY SAVED at UofM” and “AFFIRMATIVE ACTION IS RIGHT.” On the steps of the Supreme Court, the university’s president, Mary Sue Coleman—Bollinger accepted the president position at Columbia University in October 2001—sported a bright smile as she began holding press conferences.⁶⁸

For students worried that the end of affirmative action would lead to even greater racial disparities, the Supreme Court’s decision represented an important victory. But the Supreme Court’s decision also represented a clear victory for UM’s co-optation of racial justice. LSA might have to create a new affirmative action admissions system, but the admissions office could do so using all the principles of co-optation. The new affirmative action system could continue to focus on middle-class black students living outside cities. It could continue to use the ambiguity of diversity to avoid numerical goals and accountability. Affirmative action wasn’t the only thing that survived in Gratz and Grutter. Co-optation survived in 2003.