In a nutshell:

  • States, not the federal government, are responsible for governing public colleges and universities.
  • Michigan universities are bound by the state Constitution, which includes a ban on affirmative action programs that grant preferential treatment to people based on race, sex, color, ethnicity, or national origin in public education, public employment, and government contracting.
  • Federal policy directives can influence university admissions policies, but U.S. Supreme Court decisions have declared that race-based admissions policies are a “highly suspect tool” and must use narrowly tailored means to achieve a compelling state interest.

The Trump administration made news in recent days with a directive to undo Obama-era guidance surrounding affirmative action in university admissions. This raises a question: What role does the federal government have in how public colleges and universities operate, including how they select their students? Answer: A very limited one.

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The U.S. higher education system was created under the Jeffersonian notions of limited government and local control. Consequently, states are responsible for governing their own public institutions. Universities make their admissions rules within state laws, but must comply with boundaries established by the U.S. Constitution, as interpreted by the Supreme Court.

Michigan universities are bound by the state Constitution, which was amended via a 2006 ballot initiative to include a ban on affirmative action programs that grant preferential treatment to people on the basis of race, sex, color, ethnicity, or national origin in public education, public employment, and government contracting. The language actually specifies the University of Michigan, Michigan State University, and Wayne State University, as well as any other public college or university, community college or school district.

The language in the constitutional amendment did not actually include the term “affirmative action,” first used in a 1961 executive order issued by President Kennedy. The U.S. Commission on Civil Rights defined it as “any measure, beyond simple termination of a discriminatory practice, adopted to correct or compensate for past or present discrimination or to prevent discrimination from recurring in the future.”

A Research Council analysis of that 2006 amendment found the affirmative-action ban’s greatest effect would likely be on university admissions, especially at Michigan’s most elite public institution, the University of Michigan.

A Supreme Court that goes both ways

At least four other states (California, Washington, Texas, and Florida) have laws or court orders restricting affirmative action, but all public universities are constrained by U.S. Supreme Court decisions that have ruled on its appropriate use in university admissions.  

In 2003, the Court ruled in a case involving the University of Michigan and found that the U-M law school’s use of race in admissions decisions was not prohibited by the equal protection clause of the 14th amendment to the U.S. Constitution. While it ruled in favor of the program, the Court set the standard of race-based government action as a “highly suspect tool” requiring narrowly tailored means and a compelling state interest. The majority decision, written by Justice Sandra Day O’Connor, stated that the Court expects race-based admissions policies will no longer be needed to achieve diversity within 25 years.

But in a separate 2003 case involving U-M, the Court found the university’s freshman admissions policy violated the equal protection clause because its use of race was not narrowly tailored to achieve its stated interest in diversity. In a more recent case, the Supreme Court rejected a challenge to a race-conscious admissions program at the University of Texas-Austin.

A current lawsuit making its way through the system accuses Harvard of discriminating against Asian Americans in admissions by imposing a penalty for their high achievement and giving preferences to other racial minorities. This lawsuit involves a private rather than public university and it will be interesting to see how it is played out.

The push/pull of federal policy directives

So, where does the federal government fit in to all of this? While the government has a very limited role in governing higher education, its role in financially supporting students and university research has increased its ability to influence colleges and universities even in areas outside of research and student financial aid, including university admissions.

This influence includes Obama administration documents that encouraged affirmative action in university selection. These documents provided guidance on establishing policies that could withstand scrutiny from the Supreme Court.

But the Trump administration is abandoning those guidelines. The current administration recently re-posted a Bush administration affirmative action policy document that encourages the use of race-neutral methods for assigning students to schools.  

These documents do not have the force of law, but represent the official view of the federal government. They suggest the stance federal officials will take on affirmative action issues and that they may investigate and sue universities over discriminatory admissions policies.

Regardless of these directives, public universities (and all public bodies) in Michigan must follow Supreme Court rulings on the appropriate use of affirmative action, as well as state law, which includes a constitutional ban on such programs in state government.

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