Limiting Legal Impact: Universities, Affirmative Action, and the Politics of Policymaking

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Johns Hopkins University
From 1996 to 2008 six states amended their constitutions or statutes, adding total bans on affirmative action by state institutions of higher education.  All selective flagship universities in these states immediately announced their intentions to comply fully.  Yet these universities maintained their existing commitment to increasing racial diversity on campus and created new policies aimed at this goal.  This paradox speaks to a central question of law and society scholarship: can law make social change? If universities can resist these bans while complying with them, then we need a more sophisticated account of law’s impact on society and organizations. Through interviews with officials at the Universities of California, Washington and Michigan, this dissertation explains how targets of law may blunt law’s impact by complying with the law’s language, while resisting its purpose.  Because these universities followed unqualified bans, while nonetheless frustrating their purpose, I term their responses “resistant compliance.”  Public universities interpreted these laws as a ban on the methods they used to pursue diversity but not on the goal itself. Technological resources, financial resources, and relationships with private organizational partners enabled them to achieve this law-abiding form of legal resistance.  Organizations targeted by laws have the capacities to resist while complying, combining a legal and political response through organizational action.  If organizations can use compliance as a tool to resist law, then questions of law’s impact are even more complicated than previously described.  This suggests that the ultimate success of a new dominant political regime in upending social policies might depend less on the laws it can pass in legislatures or judges it can put on courts, and instead on the particular capacities of the organizations these laws target.
legal impact, compliance, affirmative action, universities, law and society, organizations