Excerpted From: McKenna L. Thayer, Call it What it Is: How Michigan's Public Universities Practice Affirmative Action for White Applicants, 67 Wayne Law Review 639 (Spring, 2022) (189 Footnotes) (Full Document)


McKennaLThayerIn a state historically hostile to affirmative action, it would seem ironic that Michigan's public universities use admissions policies which favor applicants of a specific ethnicity. It is time Michiganders re-think what affirmative action means and who actually benefits from it: white applicants.

Research has shown that considering standardized testing in college admissions favors wealthy, white applicants. Favoring applicants related to alumni and donors clearly gives another leg-up for white students; the majority of the alumni and donor bases from public universities across Michigan are white. This Note demonstrates how current college admission practices in Michigan's public universities constitute affirmative action for white applicants in violation of the Michigan constitution.

Michigan adopted a constitutional amendment banning affirmative action based on race or ethnicity in public university admissions in 2006. While this amendment appears to ban affirmative action practices for all races, it was clearly directed at policies that were used to benefit underrepresented minorities. While diversity-driven practices were made unconstitutional, and therefore abandoned by the public universities in the state, the current practices that directly increase the presence of white students on college campuses in Michigan still persist.

As this Note argues that current admissions practices constitute affirmative action for white applicants and explores potential remedies, it is grounded in several truths. First, Michigan campuses are not diverse enough--more specifically, Black students are underrepresented across Michigan's public universities. Second, these public universities have a duty to Michiganders and their students to remedy this. Finally, higher education admissions constitute only one, small piece of the puzzle in the fight for racial equity in Michigan.

Part II of this Note establishes what higher education in public universities in Michigan looks like today. It also provides an overview of the current legal framework surrounding affirmative action and facially-neutral admissions policies. Further, it provides support for the importance of racially diverse campuses and the importance of affirmative action as a tool for achieving diversity on campus. Part III of this Note concludes that the current admissions policies that consider standardized testing scores and the applicant's relationship to alumni or donors constitute affirmative action for white applicants. It then explores proposed litigation under Michigan's constitutional ban on affirmative action and potential outcomes that could be used to increase diversity on Michigan campuses. Next, this section explores how disparate impact litigation could be another legal approach to preventing affirmative action for white students furthered by these facially-neutral admissions policies. Specifically, this section highlights how, under both litigation strategies, college campuses would likely become more diverse regardless of the success of the claims. Finally, Part IV of this Note concludes that the legitimizing effects and potential outcomes of this proposed litigation are worth the risks and should be considered as one part of the larger fight for racial equity in Michigan.

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Michigan's public universities are not doing enough to increase the representation of racial minorities on their campuses. Their hands are tied when it comes to affirmative action, but there is clearly room for facially neutral, race-conscious policies. These changes are necessary, not only for the benefit of their own student bodies, but for Michigan overall as we move toward a more racially just state.

This Note has demonstrated how current admission practices used by Michigan's public universities work to effectively increase the representation of white students on campus. By considering standardized test scores or relationship to donors and alumni, current policies give preference to groups of students that are statistically likely to be white, and statistically unlikely to be Black.

Michigan's constitution bans this type of racial affirmative action in college admissions. Litigation against a Michigan public university could shed light on these biased practices and their effects and could potentially provide a remedy. This proposed litigation could lead to precedent that prevents affirmative action for white students, which would be one small step towards equity in college admissions. Alternatively, it could create precedent that strengthens and protects policies that are facially neutral but race conscious. These new policies, such as giving preference for applicants from certain high schools or zip codes, could then be used to increase racial diversity on college campuses.

In addition to the positive impacts that are likely to result from litigation under Michigan's constitutional ban on affirmative action, a disparate impact claim yields similar results. Regardless of the success of this proposed litigation, steps could be taken as a result that would increase racial diversity on college campuses in Michigan.

It is important to note that this proposed litigation is not without risks. It seems that Michigan's white population is hostile to diversity-focused policies. This proposed remedy also puts the burden on applicants of color to change the system that is working to exclude and oppress them. Further, college admissions is only one area that impacts students of color on Michigan's college campuses and is only one small piece of a larger picture of racial justice in the state. This litigation should be led by, and focused on, the communities it seeks to benefit. Finally, this is a narrow and specific remedy for one small piece of the overall system of racial injustice and oppression in this state. Litigation, if not paired with other system reforms, will not be as effective.

This Note, at the very least, tries to make one thing clear. It is time we call out college admissions practices for what they really are--another systematic tool working to exclude Black Michiganders and uphold systems of white supremacy which unduly benefit white Michiganders. Based on the information laid out above, it may be true that in trying to abolish tools like affirmative action, which are used to increase diversity and dismantle oppressive systems, Michiganders may have instead placed a tool to increase diversity directly into our constitution. It is time to rethink affirmative action, and to enforce Michigan's constitutional ban to prevent its colleges and universities from using affirmative action for white applicants.

B.S., 2017, University of Michigan; J.D. Candidate, 2022, Wayne State University Law School.