LIFE AFTER THE UNIVERSITY OF MICHIGAN CASES:

STRIVING FOR STUDENT DIVERSITY IN HIGHER EDUCATION

Fall 2005

Jonathan R. Alger

Rutgers, The StateUniversity of New Jersey

New Brunswick, NJ

On June 23, 2003, the U.S. Supreme Court issued its decisions in two challenges to the consideration of race as one of many factors in the admissions process at the University of Michigan: Grutter v. Bollinger et al. (LawSchool) and Gratz v. Bollinger et al. (undergraduate College of Literature, Science, and the Arts). The Court made clear that race is one of many factors that can contribute to a diverse student body that produces educational benefits for all students, and further held that the way in which race is considered and weighed as a factor must not be rigid or mechanical. In light of the Court’s guidance, universities around the country are now reviewing their policies and procedures with regard to admissions as well as financial aid, recruiting, outreach, and retention programs in which race is a factor. This outline will include a summary of the decisions themselves, followed by analysis of their impact on these respective areas: admissions, financial aid, and recruiting/outreach/retention.

The Court’s decisions indicate that race can be considered as a factor under some circumstances—not that it must be. In some states (such as California and Washington), legal constraints remain in force that prohibit the consideration of race in admissions and other areas. Thus, in evaluating the consideration of race in various types of programs, it is important to be aware of any relevant constraints under state as well as federal law.

I.Summary of Supreme Court Decisions:

Grutter v. Bollinger et al. (LawSchool), and

Gratz et al. v. Bollinger et al. (College of Literature, Science, and the Arts)

Overview

On June 23, 2003, the U.S. Supreme Court held in Grutter v. Bollinger et al. that diversity is a compelling interest in higher education, and that race is one of a number of factors that can be taken into account to achieve the educational benefits of a diverse student body. The Court found that the individualized, whole-file review used in the University of Michigan Law School’s admissions process is narrowly tailored to achieve the educational benefits of diversity. The Court also held that the LawSchool’s goal of attaining a critical mass of underrepresented minority students does not transform its program into a quota. In Gratz et al. v. Bollinger et al., the Court held that while race is one of a number of factors that can be considered in undergraduate admissions, the automatic distribution of twenty (20) points to students from underrepresented minority groups is not narrowly tailored.

Majority Opinion (Grutter v. Bollinger et al.)

In an opinion by Justice O’Connor (joined by Justices Stevens, Souter, Ginsburg, and Breyer), the Court explicitly adopted Justice Powell’s view from Regents of the University of California v. Bakke (1978), finding that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” It noted that public and private universities across the nation have modeled their admissions programs on the views articulated by Justice Powell in Bakke, and it reiterated that race “’is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body.’”

The Court stated that “[a]lthough all government uses of race are subject to strict scrutiny, not all are invalidated by it,” and that “context matters” when reviewing programs in which race is taken into account. The Court rejected the assertion that “the only governmental use of race that can survive strict scrutiny is remedying past discrimination.” It recognized that “universities occupy a special niche in our constitutional tradition,” and deferred to the University of Michigan Law School’s good faith educational judgment that diversity is essential to its institutional mission.

The Court found that the educational benefits of diversity “are not theoretical but real,” and had been substantiated by the University and its amici in supporting briefs. Those benefits include "cross-racial understanding” and the breaking down of racial stereotypes. The Court cited social science research showing that “student body diversity promotes learning outcomes, … better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” It acknowledged that “major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints,” and that high-ranking former military leaders have asserted that “a highly qualified, racially diverse officer corps” is essential to national security. Finally, the Court noted that diversity is particularly important in the law school context because law schools "represent the training ground for a large number of our Nation's leaders." The Court concluded that “[e]ffective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”

The Court next found that the LawSchool's admissions program is narrowly tailored to achieve its compelling interest. The Court held that universities may consider race or ethnicity as a “plus” factor in the context of individualized review of each applicant, and that admissions programs must be “’flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.’” Institutions may not, however, “establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks.” The LawSchool policy meets all of these requirements—it is “a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.” The Court defined a quota as a “program in which a certain number or proportion of opportunities are ‘reserved exclusively for certain minority groups,” and held that “[t]he Law School’s goal of attaining a critical mass of underrepresented minority students does not transform its program into a quota.” Citing Bakke, the Court stated that “’some attention to numbers,’ without more, does not transform a flexible admissions system into a rigid quota.”

The Court went on to hold that “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” and that a university need not choose between commitments to excellence and to a diverse student body. Institutions must give “serious, good faith consideration” to workable race-neutral alternatives to achieve these objectives, but the Court indicated that the LawSchool had adequately done so. The Court noted that percentage plans that guarantee admission to all students above a certain class-rank threshold in every high school in a state—the alternative suggested in the federal government’s brief—may not work for graduate and professional schools, and may preclude the individualized review of applicants necessary to achieve diversity along all the qualities valued by the university.

The Court held that the LawSchool flexible admissions program does not unduly harm members of any racial group, because all applicants have the opportunity to demonstrate how they would contribute to the diversity of the entering class.

Finally, the Court held that “race-conscious admissions policies must be limited in time,” and that universities should consider sunset provisions and periodic reviews for such programs. It concluded with an expectation that, 25 years from the time of the decision, such programs will no longer be necessary.

Majority Opinion (Gratz et al. v. Bollinger et al.)

In an opinion by Chief Justice Rehnquist (joined by Justices O’Connor, Scalia, Kennedy, and Thomas), the Court reiterated its holding from the Grutter decision that diversity is a compelling state interest that can justify the consideration of race as a plus factor in university admissions. It found, however, that the automatic distribution of twenty (20) points to students from underrepresented minority groups is not narrowly tailored to achieve this purpose.

The Court emphasized the importance of individualized review to assess all of the qualities each applicant might contribute to the diversity of the entering class. It ruled that the admissions process of the College of Literature, Science, and the Arts did not meet this standard insofar as 20 (out of 150 total possible) points were automatically awarded to all applicants from underrepresented minority groups, without further consideration of their other individual attributes. The Court concluded that this automatic distribution of 20 points has the effect of making race a decisive factor for “virtually every minimally qualified underrepresented minority applicant.” The fact that certain files are flagged for further individualized consideration by a committee was not deemed sufficient to meet the narrow tailoring standard, because such reviews were found to be “the exception and not the rule” and because they occur only after the points are distributed.

Finally, the Court held that “the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system.” The case was remanded to the federal district court for further proceedings consistent with this opinion.

Other Opinions

In addition to the controlling majority opinions, a number of other concurring and dissenting opinions were filed. Justice Kennedy agreed with the rule articulated by Justice Powell in Bakke that race is one of a number of factors that can be taken into account by universities in the admissions process, but disagreed with the application of the rule in the Law School case. Justices Scalia and Thomas were the only members of the Court who explicitly disagreed with the majority’s holding that the educational benefits of a diverse student body constitute a compelling interest.

II.Admissions Policies and Procedures

Universities around the country have been analyzing their admissions policies at the undergraduate and graduate school levels in light of the decisions in the Michigan cases. Some of the relevant factors to consider in such reviews include the following:

Justification/Compelling Interest

Is race or ethnicity a factor in the admissions policy or process? If so, what purpose is it serving (e.g., a compelling interest in a diverse student body)? Has this purpose been articulated somewhere (e.g., in a mission statement for the university, admissions program, etc.)?

  • The legal justification for the consideration of race should be articulated somewhere (e.g., in order to achieve a diverse student body), and tied to the institution’s educational mission and objectives.
  • The Court did not foreclose the possibility of other interests that might be “compelling” so as to justify the consideration of race. The two interests explicitly recognized to date include achieving the educational benefits of a diverse student body, and remedying the present effects of past discrimination. The latter interest applies only to remedying present effects of past discrimination at your own institution, however. The Supreme Court has made clear that societal discrimination alone cannot be used as the basis to justify the consideration of race in admissions.

How were the educational judgments made to determine the purpose of the policy and the criteria considered for admission? To what extent were faculty members involved in the process?

  • The Court indicated that courts owe some deference to educational judgments about who may be admitted to study—fundamentally, these are educational rather than legal judgments. Institutions will want to be able to demonstrate that admissions criteria are based on sound educational judgments (especially where the consideration of race is involved), and not mere administrative convenience.

What kinds of research or evidence (institution-specific as well as national) support the stated rationale for the program?

  • It is helpful to have institution-specific (as well as national) research, data, or testimony (e.g., in the form of considered educational judgment by a faculty committee, faculty and/or student surveys, etc.) to demonstrate why diversity is important to the educational experience and mission of your particular institution.

Narrow Tailoring

Is the review process individualized and holistic for each applicant?

  • It is especially helpful to include opportunities for applicants to bring out a wide range of attributes through essays, personal statements, teacher and counselor recommendations, etc.
  • All students should be competing against the entire pool. Candidates should not be separated (via different committees or processes) based on race.
  • Candidates should not be automatically admitted based on a “soft” (non-quantitative) variable such as race.

What factors are considered that relate to diversity, aside from race and national origin?

  • As the Supreme Court indicated, a wide variety of factors should be considered. It is helpful to be able to demonstrate that majority applicants also benefit from consideration of this full range of factors.

How is race considered – e.g., how is it weighted in the process? For what racial and ethnic groups is race considered a “plus” factor, and why are those groups chosen (and not others)?

  • Race should not be the predominant factor, and should not be assigned a weight or score in a mechanistic or automatic way.
  • The institution should have a consistent and coherent rationale for the groups that receive consideration of race as a plus factor, as well as for excluding others (e.g., based on its applicant pool, service area demographics, mission, etc.).

How would race be considered with regard to students of “mixed race”?

  • The flexibility and individualized review required by the Supreme Court can be helpful in dealing with issues of mixed race.

Are cut-off scores (for grade-point averages or standardized test scores) used to make automatic decisions at either end of the spectrum to admit or reject applicants? If so, what is the rationale for those cut-off scores? Are they consistently applied, or are exceptions sometimes made? To what extent are they used, and how does the profile of the students admitted in this fashion (e.g., considering race and other factors) compare with the profile of students admitted through other means?

  • The decisions do not categorically exclude the use of cut-off scores. The use of such scores for some portion of the class could be seen, however, as undermining an institution’s argument that it is using holistic, individualized review for every applicant because it cares about the full range of factors that contribute to a diverse student body. Another possible approach is to have presumptive ranges in mind without absolute cut-offs (while reviewing each file in its totality), and to have more intensive review of applicants “at the margins.”
  • There should not be different cut-off scores for various groups based on race.

Does the institution have a guiding principle/target for the enrollment of minority students?

  • Rigid quotas or set-asides in admissions based on race are illegal. The pursuit of a critical mass as a flexible, educationally based goal was upheld by the Supreme Court, however. Specific numerical targets should be avoided (as well as “racial balancing” to reflect the exact percentages of various groups in the population at large).

Have race-neutral alternatives been studied and considered? If they have been considered and rejected, are such deliberations documented in some fashion?

  • The Court did not require that institutions try and fail in implementing all such alternatives before considering race as a factor. Institutions should, however, be able to demonstrate that such alternatives would not produce the same level of racial diversity they seek without compromising other institutional goals and values.
  • Institutions are not required to sacrifice academic excellence or other educational goals in order to achieve race neutrality.

Does the policy include periodic reexamination, and/or a sunset provision, in light of changes in the structure and composition of the applicant pool?

  • It is a good idea to indicate explicitly in policies that they will be reviewed periodically (preferably on an annual basis).

How does the consideration of race affect the chances of admission of students for whom race is not a “plus” factor? What are the relative admit rates of students from various racial and ethnic groups?

  • The smaller the burden imposed on non-minority students by the consideration of race, the more likely a program will be found to be narrowly tailored.

III.Race-Targeted Financial Aid

As in admissions, the consideration of race or national origin in the awarding of financial aid is also subject to strict scrutiny. In 1994, after a long process involving public notice and comment, the U.S. Department of Education issued final policy guidance setting forth the circumstances under which race-targeted financial aid is permissible under Title VI as interpreted by the federal government. See 59 Fed. Reg. 8756 (Feb. 23, 1994). This guidance was reiterated by the Department in light of subsequent federal court decisions in Podberesky v. Kirwan (described below) and Adarand Constructors v. Pena, 515 U.S. 200 (1995) (applying strict scrutiny to racial classifications in federal programs), see letter from Judith A. Winston to College and University Counsel dated September 7, 1995; and in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, Texas v. Hopwood, 518 U.S. 1033 (1996) (rejecting the diversity rationale as applied to admissions at the University of Texas Law School), see letter from Judith A. Winston to College and University Counsel dated July 30, 1996. The Department has applied the policy guidance in a number of agency findings since its issuance. As with admissions, the developing case law in any particular federal circuit or jurisdiction (as well as any applicable state law or initiatives) must also be considered by any institution in reviewing its race-conscious financial aid programs.