Q & A: Former University of Michigan VP and general counsel Marvin Krislov on affirmative action in higher education
With the Supreme Court of the United States issuing what many saw as a “non-decision” in the largest affirmative action case in nearly a decade, the future of racial considerations in higher education remains up in the air.
The Supreme Court handed down its decision Monday in the Fisher v. The University of Texas case that dealt with the university’s racially conscious admissions policy.
Marvin Krislov was vice president and general counsel at the University of Michigan during the school's last major Supreme Court case regarding affirmative action.
A statewide ballot initiative that passed in 2006 prevented the university from using affirmative action in its admission process, but that initiative was ruled unconstitutional by the U.S. 6th Circuit Court of Appeals in November. The Supreme Court announced in March that it will hear arguments on the case.
U-M is waiting until the Supreme Court's ruling before bringing back affirmative action policies to its admissions system.
Marvin Krislov was vice president and general counsel at U-M when the Grutter v. Bollinger case made its way to the Supreme Court in 2003. He left U-M in 2008 to become president of Oberlin College in Ohio.
Following the Fisher decision, Krislov talked with AnnArbor.com about the cases and their implications for the higher education community.
AnnArbor.com: Why was the Grutter v. Bollinger case important enough for Michigan to argue it to the Supreme Court?
Marvin Krislov: Michigan’s position has always been that a diverse student body contributes to the education excellence for all students.
At Michigan we took into account all kinds of diversity consideration, including geographic, socioeconomic, interest areas and athletics. Racial and ethnic diversity was one of many of those diversity factors.
… What happened in our case in 2003 was the court confirmed that [the opinion given in Regents of California v.] Bakke was still the law of the land. The opinion in our case had a lot of important language saying that diversity was still relevant.
Moreover, it acknowledged that the benefits to a diverse student body were not theoretical but real benefits that accrued.
AnnArbor.com: You’re now the president of a private college, what does this ruling mean for your school and other private colleges and universities?
Krislov: The Bakke decision and other court decisions have suggested that if you do get federal funds then you should follow the same rules. There is some debate, but the better interpretation is probably that these rulings do apply to private universities as well.
… Oberlin, and other private schools such as Amherst and Columbia, where Lee Bollinger (who was president of U-M in 2003) is now the president, have filed amicus briefs with the court to show their interest in the case.
AnnArbor.com: How closely will the higher education community continue to watch this case as it heads back to the lower court?
Krislov: The higher education community will definitely continue to pay attention to this case. The major takeaway here is that the overwhelming majority of the court affirmed the Grutter [v. Bollinger] decision that student body diversity is a compelling state interest.
What’s clear is that the [Supreme] Court wants to make sure that the programs are narrowly tailored and that other courts look at these programs with strict scrutiny. This ruling doesn’t really change the law, it just emphasizes that that’s the case.
It’s also important that this was a decision by a very strong majority of the court. [Justice Elena] Kagan was recused, so six of the eight judges were very clear that Grutter and Bakke are still the law of the land. There had previously been some question in people’s mind whether that would be the case after this ruling.
... For Michigan, yesterday’s decision does not really affect too much what they’re doing right now. Michigan has to follow state law so what happens with the 2006 ballot initiative will be more important.
AnnArbor.com: Is there general consensus in the higher education community that diversity programs are necessary?
Krislov: There are certainly individual groups and faculty members that disagree as a matter of constitutional law.
However, the decision does make clear that if there are workable alternatives they should be used and if a school doesn’t feel that they need to consider race and ethnicity in decisions then they are not forced to do so.
When we talk about who this case affects, we’re talking about the very selective colleges, universities, and graduate schools. It’s actually not a huge percentage of the American higher education system that will be affected by this but it is many of the most competitive schools.
… Many schools may choose not to use any [diversity programs] because they don’t feel that they need to or it is not a part of their school’s mission. Different places have different systems.
Ben Freed covers business for AnnArbor.com. You can sign up here to receive Business Review updates every week. Get in touch with Ben at 734-623-2528 or email him at benfreed@annarbor.com. Follow him on twitter @BFreedinA2
Comments
Terry
Mon, Jul 1, 2013 : 12:18 p.m.
This is such a great news source. Everytime I start buying into the hype that Ann Arbor is this hot spot for enlightenment, I can read articles like this and it reinforces my belief that this city is nothing more than a fad. Come on; it's 2013, we still feel the need to coddle people in the name of political correctness? Let's give prefferential treatment to a certain class of people because over a hundred years ago people 4 generations removed were ignorant and opressive. Give people what they earn! Enough with the pity party. I understand the laughable politics in this city, but stories like this still boggle my mind.
Terry
Mon, Jul 1, 2013 : 2:07 p.m.
Sorry had my reply mixed up..... this was to mgoscottie
Terry
Mon, Jul 1, 2013 : 2:04 p.m.
AsianAmerican, that is not at all what you should assume. Per my comments, if you deserve to get into a certain university based soley on your own academic abilities you should get in on those credentials alone. Give people what they earn. If a person happens to be white, black, asain, indian, etc... it is and should be irrelevant.
mgoscottie
Mon, Jul 1, 2013 : 1:44 p.m.
Does that mean we can assume you believe black people to be naturally inferior to white people and that is the cause of less black people going to college and being successful?
MadamButterfly
Mon, Jul 1, 2013 : 4:20 a.m.
Dr. Marvin Krislov is a fine lawyer, college president, and human being. Thank you for this enlightening interview!
blue85
Tue, Jul 2, 2013 : 1:21 a.m.
"If UM admitted those who would succeed, there would not be a 19 point gap in graduation between white students and minorities. For years this was actually a 25% gap." Why do you continue to lie? The gap is not 19 points. "How many minority students have been hurt by his policies? Many." OK, how many? You must know the answer. How are you defining "hurt"; how do you measure the harm. What has been the benefit to those who have graduated? How are you measuring that incremental benefit? If 80% of the AAs graduate and 20% do not finish, isn't the success ratio of 4:1 suggestive of benefits conferred? Why are your assertions presented in a loss framework rather than a benefit framework? Are you using a loss framework to make a point that cannot be made with the raw figures?
annarbor28
Mon, Jul 1, 2013 : 12:25 p.m.
What are you basing this on? UM's affirmative action policy has been short-sighted because although it brings in more racially diverse students, it does not necessarily choose wisely or support them in many cases. leading to less chance of the affirmative-action admits graduating. How does this make him a fine human being? I think it makes him not very analytical, and he wasted millions of UM's money to try to prove a point in courts which has hurt a lot of minority students. If UM admitted those who would succeed, there would not be a 19 point gap in graduation between white students and minorities. For years this was actually a 25% gap. How many minority students have been hurt by his policies? Many.
annarbor28
Mon, Jul 1, 2013 : 3:09 a.m.
This post and the last one are taken as quotes from the Journal of B;lacks in Higher Education", since it appears that other posters don't want to search the journal itself. They also state why they compile their stats: "Given the importance of higher education relative to future earnings and career prospects, it is necessary for college-bound black students to have as much information as possible concerning their chances of success at particular colleges and universities. In past reports JBHE has identified some colleges and universities often rated among the best academically in the nation that have eliminated the racial gap in graduation rates. At several other top-rated colleges and universities, including Harvard, Vanderbilt, and Davidson, the black student graduation rate is very high and is only one percentage point below the rate for whites. But these high-ranking colleges and universities enroll only a tiny percentage of African-American college students. Therefore, it is useful to examine where black students do well, compared to their white peers, in graduating from the nation's thousands of colleges and universities that are not rated among the academically top tier institutions. It is most important that college-bound black students know of the colleges and universities where their African-American peers have not done so well in completing their bachelor's degree programs. For all college-bound blacks it is important to know where they stand a good chance of success and where they are more likely to fail. JBHE has retrieved graduation rate statistics from Department of Education databases on thousands of colleges and universities in the United States not ranked among the 30 highest-ranked universities and 30 highest-ranked liberal arts colleges. The vast majority of the colleges and universities have racial gaps in graduation rates that are in the range of the national averages."
annarbor28
Mon, Jul 1, 2013 : 3:06 a.m.
There are many reasons for the low college graduation rate of African Americans and the large black-white gap in college completions: • Clearly, the racial climate at some colleges and universities can affect black persistence and graduation rates. If black students do not feel welcome or if they experience any sort of racial harassment or discrimination, they will likely drop out of that particular institution. • Many black students who enroll in college are not adequately prepared for college-level curriculum. Poor preparation in K-12 education leaves many black students without a sufficient academic foundation to succeed in college. Poor grades then lead to frustration which increases the likelihood that these students will drop out. • Many black students come from families that have no tradition of higher education. There can be a lack of necessary support and understanding for nurturing the black student's effort to succeed in higher education. • But, undoubtedly, the most important factor is money. JBHE research has shown that two thirds of all blacks who drop out of college do so for financial reasons. Many black students decide they do not want to build up large debts. Others see financial aid awards reduced after their first year in school and do not want to assume additional expenses. At times, increases in tuition, fees, and the price of textbooks push the cost of education too high for black students. Some black students drop out because they need to enter the work force to help support their families. Others who have tried to work while going to college find that undertaking both tasks simultaneously is too difficult and, so, many of these students will drop out of college. Given the importance of higher education relative to future earnings and career prospects, it is necessary for college-bound black students to have as much information as possible concerning their chances of success at particular colleges and universities.
annarbor28
Mon, Jul 1, 2013 : 3:05 a.m.
The black graduation rate at UM is actually up to 70%, the white rate is 89%. See this link from the Journal of Blacks in Higher Education, as also cited above. "Black enrollments in higher education are at an all-time high. But nationwide the black student college graduation rate remains dismally low, at a level of about 45 percent. The black student college graduation rate is about 20 percentage points lower than the rate for whites." (jbhe) These are facts, published by a well-respected journal, the "Journal of Blacks in Higher Education", which has been following graduation trends for decades. http://www.jbhe.com/features/58_gradratesracialgap.html http://www.jbhe.com/features/65_gradrates.html
annarbor28
Tue, Jul 2, 2013 : 12:40 p.m.
These stats are from the US Dept of Education, which should be an objective source. If you question the Journal of Blacks in Higher Education, please take it up with them, not me!
blue85
Tue, Jul 2, 2013 : 1:17 a.m.
"Actually, the black graduation rate at UM is up to 70%, the white rate is 89%. " The link which I posted showed a rate of nearly 80%. That rate is from a UM publication, not from a second hand source. Your post followed mine by several hours. You had time to read the original link and get your facts straight, so why do you feel the need to lie in an attempt to support your initial inaccuracy (or was that a lie as well?)? "These are facts, published by a well-respected journal, the "Journal of Blacks in Higher Education", which has been following graduation trends for decades." So this journal has been following the numbers for decades, yet the number that you cite is widely inaccurate relative to UM's original source data, so shouldn't that suggest to you that they may also have been getting the number wrong for decades?
Cornelius Nestor
Mon, Jul 1, 2013 : 2:10 a.m.
The presumption behind diversity programs is that students of one race will hold different views than students of another race. If this view were true, then it would deny students free will because it implies that their views are established for them genetically. If people are automata whose views are inextricably and biologically tied to their race, then, of course, the only way to gather a mass of people with more than one set of views among them is to select them on the basis of race. But do we really believe people are trapped in their views because of their genes? I certainly treat my students regardless of race as though they have free will and can reach their own decisions.
mgoscottie
Mon, Jul 1, 2013 : 11:30 a.m.
It could do that on average without being applied individually pretty easily with the numbers of admissions
GoNavy
Mon, Jul 1, 2013 : 1:03 a.m.
Let's face it: As far as admissions is concerned, "diverse" at the University level means "different skin color" in most cases.
Terry
Mon, Jul 1, 2013 : 12:28 p.m.
As an institution of higher learning shouldn't their criteria center on exporting the most successful product possible? As an employer I have absolutely no interest in creating a diverse work force at the expense of my final product and I feel a university should feel the same way. You bring in the best, you strive for the best, and you export the best regardless of ethnicity, income, social status, etc...
mgoscottie
Mon, Jul 1, 2013 : 11:29 a.m.
It really doesn't, I think one of their criteria is at least one student of all 50 states and as many countries as possible
Somargie
Sun, Jun 30, 2013 : 8:14 p.m.
So according to the insane belief perpetuated black students who are accepted into UM are unprepared and therefore admitted only because of their racial background....this would be funny but sadly many still believe this lie and use it with immunity to disparage someone different and justify their either hidden or overt racism that only "they" not that "other" person have more rights to an education or that belief that "others" are somehow taking their place. I weep for this country that their is still this sick pervasive feeling of "white privilege" that "university students of color aren't really that smart." The facts are that all the students who are admitted to UM earned it fairly and each and every university have a point system. The students who are given more points are those given legacy status or athletic abilities. Instead of worrying about this sickening fantasy that students of color are unprepared worry about the many unprepared legacy & student athletes that are accepted to fuel the insatiable appetite for sports over academics. It would be refreshing if AArbor.com actually print a comment that was presented with facts instead of sickening fantasy that is continually destroying the very ideas of "we the people."
mike
Tue, Jul 2, 2013 : 1:37 a.m.
Blues85 My guess is that African Americans are about 12% of the general population. The UM almanac suggests that roughly 5% of the UM population is African American. This suggests that despite any tie breakers, African Americans are very UNDERREPRESENTED at UM, despite UM's efforts. So, let us take your estimate that 12% of the population is African American. Of those 12 % only 52% graduate high school Vs. 78% white student graduation. Based on a class 1 million, the white graduates would be 633,600 the African American graduates would be 62,400 or a total of 696,000 graduates. If the University of Michigan could except the entire graduating class of 696,000 students and to keep your 12% minority enrollment we would need to have 21,120 more African American graduates. So, it would seem that the University of Michigan is about right with the number of African American students at 5 to 6 %. I am all for bringing K thru 12 education to ethnic groups, I would love to see a 100% graduation class. The facts are that not only should we strive to educate our youth but we need to prepare them for a college education. Affirmative action is not the best way to educate our youth, equalization of all teaching nation wide. Poor , and minority areas should have the same chance, the same choices.
vivian
Mon, Jul 1, 2013 : 12:08 p.m.
Blue85, I don't think that the alternative to UM is necessarily trade school (and besides, I think the skilled trades are greatly undervalued, often even by people who wouldn't describe themselves as snobbish). How about one of the other very good but less selective and thus less prestigious state universities? How about one of the many small colleges that provide much more prof-student contact in the crucial first year and a welcoming environment? Such schools typically offer good student aid packages (some even guarantee four years of full support for academically promising students). Someone in this thread--maybe it was you--noted that high costs are one of the primary reasons for the low graduation rate of minority students--how about two years at community college and then a transfer, which has the additional advantage of ensuring that students who pay the high tuition at a selective college have had the chance to form a pretty good idea of what they want to do and how to do it by the time they get there? Yes, my remarks are based largely on anecdotal evidence, but I'm more interested in the human costs of what I perceive as a mismatch between students and schools than in the statistical piece of the picture. You can amass a lot of data--some of it pretty heartbreaking--in several decades of association with a number of universities and colleges. And, as somargie seems to be suggesting, legacy students and student athletes suffer in such circumstances just as minority students do. The goal of an admissions office ought to be to recruit students who will thrive in the environment offered by their college or university.
Somargie
Mon, Jul 1, 2013 : 2:26 a.m.
"They feel just the way you or I would in those circumstances--deflated, defeated, and dispirited. What kind of favor does preferential admission do these kids?" Sorry, that statement is demeaning on so many levels and the ending on preferential treatment is blatantly false. This article is not about the many outreach programs designed to increased college enrollment of minority, low SES, or rural students. Research stats have consistently proven that all students who enter universities from less academically rigorous high schools don't succeed as well as students from academically rigorous high schools regardless of race. That's not a mystery to anyone and that those students who thought they were the top at these schools have been surprised. Equally true, is that students at academically rigorous college prepared high schools find that they aren't the smartest anymore either. To twist these proven & commonsense facts into a rationale about minority college admittance is demeaning enough but worse to imply what these students might feel served no purpose but to humiliate, shame and to show some kind of superiority which in itself belongs in the annals of deprave hubris and darkens these simple but powerful American words..."in order to create a more perfect union all men are created equal." I'll end with this quote from Don Quixote, "facts are the enemy of truth."
blue85
Mon, Jul 1, 2013 : 1:31 a.m.
"They feel just the way you or I would in those circumstances--deflated, defeated, and dispirited. What kind of favor does preferential admission do these kids?" Vivian: this is a fair point based on the logic, but with 80% of the AA cohort graduating in 6 years versus 92% for the white cohort, your comments seem well intentioned but anecdotal. While it is not UM's role to repair the damage/neglect in the K-12 time frame, UM can do its part by graduating the better part of the entering cohort, and it appears to be doing just that. In a perfect world, every kid would match to a school that would stretch him/her to 110% of their perceived upper bound. In a perfect world, kids would not be over stretched. However, I'd rather see kids fail by being pushed to hard after being given access, than to see them being told "sorry, this fare is a bit too rich for your undeveloped palate and this trade school is good enough for the likes of you.". The kids that don't succeed will have attempted to climb the summit. Those who reach the summit will begin to create a cultural legacy for those who follow. That is how you move the ball forward, not by avoiding risks.
blue85
Mon, Jul 1, 2013 : 1:25 a.m.
As you note, various factors are used as TIE BREAKERS, NOT AS EXCLUSIVE FACTORS FOR ADMISSION: race, legacy, economic class, preferential skill (sports, musical instrument, languages), and geography, to name a few. There is no evidence that I've ever seen published that shows that the students who come in are less prepared. I've never seen evidence that the cohorts for certain groups (chiefly Hispanic and African American) approach anything like their numbers in the general population. My guess is that African Americans are about 12% of the general population. The UM almanac suggests that roughly 5% of the UM population is African American. This suggests that despite any tie breakers, African Americans are very UNDERREPRESENTED at UM, despite UM's efforts. This suggests that the pipeline for such students is very small, which suggests unequal opportunity/access at K-12. I've never read a convincing presentation that supports a racial theory of intelligence. In the absence of a plausible racial theory of intelligence, it would seem that there are other explanations: economic disadvantage; racism... As I note above,the entering cohort doesn't do as well as some of the other cohorts, but nowhere near as poorly as the original OP suggests. It seems likely that as more African Americans attain a college education and reap the related rewards, the more closely their ex post experience will resemble the cohorts of other races. I can't think of a contrary argument that doesn't require a racial (i.e., racist) component. The contrary scenario would be to deny African Americans and other minority groups access to education (a popular approach pre 1865 or so) deny them access to the economic system and then act surprised when their social outcomes fall short. To my mind, this is a complete non-starter: if you want a just society, give people equivalent starting access from K-12 and possibly through a 4 year school. It may take another 4-5 generations to get there.
vivian
Mon, Jul 1, 2013 : 1:17 a.m.
Somargie, I agree with you that many universities, including UM, seem to overvalue athletics, but I'm really having trouble following some of your other statements. Are you making a blanket statement that all admitted students of color are qualified to attend the University of Michigan and that none are unprepared? Sadly, that's not entirely true, as the existence of many bridge programs and special service units attests. Many minority students struggle academically. Often they find themselves in competition with the very most highly qualified, motivated, and competitive non-minority students (non-minority students have to have very good qualifications to be admitted to UM and other top tier schools when affirmative action programs are in place), and for those non-whites who come out of inferior inner-city or rural schools, it can be a painful and ego-damaging experience. I've had students who'd been at the top of their classes in Gary or Detroit or Memphis but find themselves at the bottom of their classes at Michigan. They feel just the way you or I would in those circumstances--deflated, defeated, and dispirited. What kind of favor does preferential admission do these kids?
annarbor28
Sun, Jun 30, 2013 : 5:59 p.m.
This is absurd. The graduation rate of African American students at U-Michigan is 65%, compared to 85% in other groups. Letting in unprepared students hurts these students who don't graduate and often have student loans, and also takes spots from others who are more likely to succeed. It make people like this lawyer and Mary Sue Coleman feel good to admit diverse students, but then they don't speak about the consequences. Stats from the Journal of Blacks in Higher Education, which has been following these statistics for years. Guess Mr. Krislow and Ms Coleman are not aware of these statistics, and instead just do their feel-good admission game.
blue85
Tue, Jul 2, 2013 : 1:15 a.m.
"Actually, the black graduation rate at UM is up to 70%, the white rate is 89%. " The link which I posted showed a rate of nearly 80%. That rate is from a UM publication, not from a second hand source. Your post followed mine by several hours. You had time to read the original link and get your facts straight, so why do you feel the need to lie in an attempt to support your initial inaccuracy (or was that a lie as well?)?
annarbor28
Mon, Jul 1, 2013 : 3:01 a.m.
Actually, the black graduation rate at UM is up to 70%, the white rate is 89%. See this link from the Journal of Blacks in Higher Education, as also cited above. Of course these figures won't be "bragged about" by UM. http://www.jbhe.com/features/58_gradratesracialgap.html http://www.jbhe.com/features/65_gradrates.html
blue85
Mon, Jul 1, 2013 : 1:14 a.m.
"This is absurd. The graduation rate of African American students at U-Michigan is 65%, compared to 85% in other groups. Letting in unprepared students hurts these students who don't graduate and often have student loans, and also takes spots from others who are more likely to succeed." According to the university almanac (page 46), the university computes graduation figures for 4, 5 and 6 year cohorts. Nowhere in that 186 page document are rates broken out for African Americans. A second university of Michigan document (http://sitemaker.umich.edu/obpinfo/files/umaa_ug_grdrts_12.pdf) indicates, using a standard 6 year time frame, that the graduation rate for African Americans is 79%. So, are you lying to make a point, or are you ignorant of the data and choosing a number which fits your theory (hint:that is also a lie). BTW: your other cohort figure is also off (low) by 5%. So you used two numbers and they are both wrong. "Guess Mr. Krislow and Ms Coleman are not aware of these statistics, and instead just do their feel-good admission game." So, given the above .pdf, this assertion is factually incorrect. Mr. Krislov and Dr. Coleman (that's "Doctor" to you) are not aware of those statistics with good reason: they are, as a factual matter, incorrect. Want to try again using real numbers?
Mike
Sun, Jun 30, 2013 : 4:26 p.m.
So Mr. Krislov supports discrimination based on the color of one's skin or ethnicity.......................?