Disparate Impact and the Use of Racial Proxies in Post-MCRI Admissions

The Michigan Civil Rights Initiative (“MCRI”) amended the Michigan Constitution to provide that public universities, colleges, and school districts may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of . . . public education.” We argue that, in addition to prohibiting the overt use of racial preferences in admissions, the MCRI also prohibits using racial proxies such as socioeconomic status or a “Ten Percent Plan” that aim to prefer minorities in admissions. Though the MCRI does not expressly say so, we stipulate for this paper that its language prohibits universities from overtly considering race in any way when making admissions decisions. It remains unclear, however, what other conduct might be barred by the MCRI. In particular, it is unsettled whether the MCRI would prohibit using proxies or other race-neutral criteria designed to aid minority candidates in admissions. Would a plan similar to the “Texas Ten Percent Plan,” which accepts all in-state students who graduate at the top of their high school classes, violate the MCRI as a proxy for racial preference? What about giving applicants a bonus for socioeconomic disadvantage or overcoming adversity? Does purpose matter? These questions are vital to universities trying to achieve racial diversity in a post- MCRI world. The answers will depend mostly on how state courts interpret the MCRI’s language on “discrimination” and “preferential treatment.