February 24, 2005Newsletter

Landmark Decisions Allow for Affirmative Action

Employment Update


In a 5-4 decision, the Supreme Court recently held that the attainment of student body diversity is a compelling state interest, and validated the use of a race-conscious admissions program by the University of Michigan Law School (Grutter v. Bollinger) while, at the same time, the Court struck down that University's undergraduate admissions program by a vote of 6-3 (Gratz v. Bollinger). Why did the Law School's admissions policy pass the Court's strict scrutiny while the University's undergraduate admissions policy fail? The Law School, according to the Court, utilized a narrowly-tailored admissions process that: (1) provided for an individualized consideration of each applicant; (2) conducted a good faith consideration of race-neutral alternatives; (3) was not an undue burden on non-minority applicants; and (4) provided for periodic reviews to assess whether racial diversity had been achieved, thereby limiting the duration of a preference-based approach.

While the Court's decisions in these cases do not directly address the use of race-conscious admissions at private colleges and universities, the Court did note that the analysis used to sustain the Law School's program applies in reviewing claims under Title VI (applies to recipients of federal funds) and ยง1981. These federal laws prohibit racial discrimination and apply to private institutions. Accordingly, private institutions will want to use the University of Michigan Law School's approach as a model in their own admissions policies.

Why Did the Court Uphold the Law School's Admission Policy?

In Grutter, the court found Michigan Law School's admissions policy constitutional because the Law School considers race only as a "'plus' in a particular applicant's file." The policy was found to be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according to the same weight."

The Policy

Michigan Law School's admissions policy requires admissions officials to evaluate each applicant based on all the information available in the applicant's file, including: a personal statement; letters of recommendation; an essay describing how the applicant will contribute to the Law School life and diversity; the applicant's undergraduate grade point average; and the Law School Admission Test score. Additionally, officials must look beyond grades and scores to so-called "soft variables," such as: the recommender's enthusiasm; the quality of the undergraduate institution; and the areas and difficulty of undergraduate course selection.

The policy does not define diversity solely in terms of racial and ethnic status and does not restrict the types of diversity contributions eligible for "substantial weight." But the policy does reaffirm the Law School's commitment to diversity with special reference to the inclusion of African-American, Hispanic, and Native-American students, who otherwise might not be represented in the student body in meaningful numbers. The policy seeks to ensure the applicant's ability to contribute to the Law School's character and to the legal profession by enrolling a "critical mass" of underrepresented minority students. The Law School defines a "critical mass" as "meaningful numbers" or "meaningful representation;" a number that encourages underrepresented minority students to feel comfortable in participating in the classroom and not feel isolated.

The Decision

Justice Sandra Day O'Connor, writing for the majority, found the Law School's admissions policy to be constitutional. Both in purpose and means, the policy was written and implemented in a way that was narrowly tailored to its purpose and did not make race a deciding factor in the admissions selection process. In reaching its decision, the Court reaffirmed the deference courts have given to a college's or university's educational judgment.

The Court found the Law School's policy constitutional because the Law School defines its critical mass concept by reference to the substantial, important, and laudable educational benefits that diversity is designed to produce, including cross-racial understanding and the breaking down of racial stereotypes. O'Connor noted that it would be altogether different if a "critical mass" was simply a way to "assure some specified percentage of a particular group because of its race or ethnic origin." The Court concluded that the Law School's policy does not establish a quota and noted "that in some cases an applicant's race may play no role [when taking all factors into account], while in others it may be determinative. The policy permits consideration of race as a 'plus' factor in any given case while still ensuring that each candidate competes with all other qualified applicants."

The Court noted that the admissions process is flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes race or ethnicity the defining feature of the application. "The Law School engages in 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." There is "no policy, either de jure or de facto, of automatic acceptance or rejection based on any single 'soft' variable." Also, the Court found that the program adequately ensures that all factors that may contribute to diversity are "meaningfully considered alongside race."

Additionally, the Court mentioned favorably that the Law School's admissions policy reflected the good faith effort to take other race-neutral factors into account; was not unduly burdensome on non-minority applicants; and required periodic reviews to assess whether student body diversity had been achieved, thereby creating a "sunset provision" or logical termination point for the use of race as a factor.

Why did the Court Strike Down the Undergraduate Admissions Policy?

Unlike the Law School admissions policy that was found to be constitutional, the Court in Gratz v. Bollinger struck down Michigan's undergraduate admissions policy. In delivering the opinion of the court, Chief Justice William Rehnquist noted that race must not be the "deciding factor" in the admissions process. The Court found unconstitutional the point system that Michigan's undergraduate admissions program employed because it resulted in race being the deciding factor for admissions. As Justice O'Connor succinctly wrote in her concurring opinion, "the Office of Undergraduate Admissions did not provide for a meaningful individualized review of applicants."

The Policy

Michigan's undergraduate admissions policy assigns points based on high school grade point average, standardized test scores, academic quality of applicant's high school, strength or weakness of applicant's high school, in-state residency, alumni relationship, personal essay, personal leadership or achievement and miscellaneous considerations. Under the "miscellaneous" category, an applicant is automatically entitled to 20 points based upon his or her membership in an underrepresented minority group. An applicant must earn 100 points to be "automatically admitted" without postponement.

The Decision

The majority found that Michigan's automatic distribution of 20 points, based solely on the race of the applicant, was not narrowly tailored to achieve the interest in educational diversity. The Court noted that the automatic allocation of 20 points fails to provide any individualized consideration. Instead, Chief Justice Rehnquist found that the point allocation without any individualized assessment has the effect of making race a deciding factor in the admissions process.

The Court brushed aside the University's arguments that conducting a more individualized review for all applicants would be cost prohibitive. The Court explained that institutions must not only take extraordinary care when designing race-conscious admissions policies, but also prepare themselves for the expense of creating a constitutional admissions program. The Court pointed favorably to the Harvard College Admissions Program that does use individualized considerations of applicants, including race, to determine whether to admit an applicant.

Impact on Higher Education Institutions and Beyond

The Supreme Court has recognized the promotion of educational diversity as a compelling interest that can justify the use of race as a factor in the admissions process. However, institutions must make sure that their policies require individualized consideration of applicants and contribute to the interest of diversity on a campus. The individualized admissions process may be more expensive, but any program that does not review applicants individually when taking race into account is vulnerable to a legal challenge.

Leading constitutional scholars released a Joint Statement of Constitutional Scholars opining that the Bollinger decisions also may be used to justify university race-conscious recruitment and outreach, as well as for university financial aid and support programs. The Supreme Court did not address these issues directly, but the commentators refer to language in the cases that supports such arguments.

Additionally, the commentators suggest that these cases may have an effect on programs outside of a college or university setting. They point to language in Grutter that reveals "the Court's support for the importance of diversity in other contexts, including K-12 education, as well as employment and business."

While these cases constitute landmark decisions, their full impact remains to be seen. Higher educational institutions definitely need to examine their admissions policies and practices to ensure that they comply with the Court's decisions.

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