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Opinion No. 6612

February 27, 1990


Race-based college admission caps or quotas


Race-based admission caps or quotas

State colleges and universities may not impose a numerical ceiling or cap on the admission of Asian American students.

Honorable H. Lynn Jondahl

State Representative

The Capitol

Lansing, MI

You have requested my opinion on the question of whether a formal or informal admissions policy imposing a cap on the enrollment of Asian American students at state colleges and universities is consistent with applicable law.

Article 4 of the Elliott-Larsen Civil Rights Act. MCL 37.2401 et seq; MSA 3.548(401) et seq. provides in pertinent part:

"An educational institution shall not:

"(a) Discriminate against an individual in the full utilization of or benefit from the institution, or the services, activities, or programs provided by the institution because of religion, race, color, national origin, or sex.

"(b) Exclude, expel, limit, or otherwise discriminate against an individual seeking admission as a student or an individual enrolled as a student in the terms, conditions, or privileges of the institution, because of religion, race, color, national origin, or sex.

"(c) For purposes of admission only, make or use a written or oral inquiry or form of application that elicits or attempts to elicit information concerning the religion, race, color, national origin, age, sex, or marital status of a person, except as permitted by rule of the commission or as required by federal law, rule, or regulation, or pursuant to an affirmative action program.

"(d) Print or publish or cause to be printed or published a catalog, notice, or advertisement indicating a preference, limitation, specification, or discrimination based on the religion, race, color, national origin, or sex of an applicant for admission to the educational institution. "(e) Announce or follow a policy of denial or limitation through an quota or otherwise of educational opportunities of a group or its members because of religion, race, color, national origin, or sex."

MCL 37.2402(1); MSA 3.548(402)(1). (Emphasis added.)

The above provision conclusively prohibits the imposition of a cap on the enrollment of racial or ethnic groups. Moreover, the equal protection clause of the 14th Amendment to the U.S. Constitution also clearly forbids such practice. The central purpose of the 14th Amendment is to eliminate racial discrimination emanating from official sources in the states. McLaughlin v Florida, 379 US 184; 85 SCt 283; 13 LEd 222 (1964). Decisions based on racial or ethnic origin by administrators of state universities are reviewable under the 14th Amendment. Missouri ex rel Gaines v Canada, 305 US 337; 59 SCt 232; 86 LEd 208 (1938); Sweatt v Painter, 339 US 629; 70 SCt 848; 94 LEd 1114 (1950). When a classification denies an individual opportunities solely because of his or her racial or ethnic heritage, it is inherently suspect. McLaurin v Oklahoma State Regents, 339 US 637; 70 SCt 851; 94 LEd 1149 (1950).

In University of California Regents v Bakke, 438 US 265 98 SCt 2733; 57 LEd2d 750 (1978), the Supreme Court considered the validity of a special admissions program at the University of California Medical School at Davis which set aside 16 places in an entering class of 100 for members of racial minority groups. While five justices in Bakke agreed that an admissions program could take race into account in order to promote diversity in the student body, the court rejected the use of a rigid quota. Further, it was noted in Justice Powell's opinion that racial preferences have been sanctioned by the court only as a remedy for proven past discrimination. 438 US at 307.

Your question does not raise the issue of remedial quotas granting preference to previously disadvantaged minority groups. Rather you question the legality of placing a ceiling on the number of Asian American students admitted for the sole reason that their academic achievement may result in their admission in numbers greater than their proportion in the general population. Such a practice, whether formal or informal, is forbidden by Michigan law and by the equal protection clause.

It is my opinion, therefore, that state colleges and universities may not impose a numerical ceiling or cap on the admission of Asian American students.

Frank J. Kelley

Attorney General