Legal Perspective

Douglas Laycock, University of Texas at Austin

University administrators celebrated a win for affirmative action in the Michigan Law School case, Grutter v. Bollinger. But opponents of affirmative action continue to threaten lawsuits and administrative complaints. They allege that race-neutral alternatives have already succeeded in Texas and California, and they may be expected to allege that many plans are too mechanical, or insufficiently individualized and holistic, to satisfy the rules announced in the Michigan cases. This paper clarifies the current state of the law in non-technical terms, highlights pitfalls for unwary faculties and administrators, and advises on design of a defensible affirmative action plan. The race-neutral alternatives on which opponents of affirmative rely are highly race-conscious, but indirect and inefficient, generally producing less diversity than a well-designed affirmative action plan and doing more harm to academic standards, conventionally measured. These consequences matter legally; universities need not use methods that significantly undermine academic standards.