A Reprieve for Affirmative Action In Higher Education
 
March 22, 2001
 
Sara L. Doyle- Atlanta

Recently it appeared as if courts and legislatures were putting an end to affirmative action in higher education.  In Georgia, a federal court held that the University of Georgia’s use of race and gender in admissions did not pass constitutional muster even though “diversity” was its stated goal.  In Florida, the legislature passed a law prohibiting the use of race, gender or national origin in higher education admissions.  Two courts, however, have bucked the trend, upholding the use of race in admissions to achieve diversity.  The key issues remain whether a college or university can demonstrate that its goal of diversity is a compelling interest and whether the use of race in the admissions process is narrowly tailored to reach that goal.

In the Ninth Circuit, several white applicants for admission to the University of Washington law school filed suit claiming that they had been denied admission because of their race.  Smith v. University of Washington, 233 F.3d 1188 (9th Cir. 2000).  From 1994 to December 1998, the law school had used race in its admission process to ensure the enrollment of a diverse student body.  On November 3, 1998, Washington passed Initiative Measure 200 (I-200), which prohibited discrimination against, or preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in public education.  As a result of I-200, the University eliminated the use of race in its admission process.

On appeal, the Ninth Circuit determined that the passage of I-200 mooted the plaintiffs’ claims for prospective relief.  Nevertheless, with respect to the University’s prior admissions program, the Ninth Circuit held that diversity, in the context of higher education, was a compelling governmental interest that met the requirements of strict scrutiny and that race could be considered for other than remedial purposes.  In so finding, the Ninth Circuit relied on Justice Powell’s opinion in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).  Justice Powell’s opinion laid down four principles: (1) strict scrutiny applies to classifications based on race; (2) using race to ensure a specific number of students is facially invalid; (3) the state has a legitimate and substantial interest in rectifying identified discrimination, and (4) a diverse student body is a constitutionally permissible goal for an institution of higher education.  Bakke, 438 U.S. at 311-12.

The University argued that the fourth principle justified its race-conscious application process.  The court agreed without any detailed analysis, leaving it to the Supreme Court to overturn  Bakke and the use of race in admissions.

In a more lengthy and detailed analysis, the U.S. District Court for the Eastern District of Michigan analyzed whether the University of Michigan’s College of Literature, Science and the Arts (CLSA) had violated Title VI of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment by considering race as a factor in its admissions decisions.  Gratz v. Bollinger, Duderstadt and the Board of Regents at the University of Michigan, 122 F. Supp. 811 (E.D. Mich. 2000).

The District Court upheld CLSA’s admissions program.  The CLSA did not utilize rigid quotas or seek to admit a predetermined number of minority students. Instead, admissions counselors were assigned to a specific region of the country and required to review all applications in their territory, including under-represented minority and non-minority candidates. Counselors were allowed to award under-represented minorities 20 points toward the calculation of their selection index score.  Admissions counselors also were allowed to flag applications that showed certain sought-after qualities, including under-represented race.

Even though the number of points afforded to race was greater than the points awarded for some other plus factors, the court held that it was constitutionally permissible under Bakke for the CLSA to give more weight to race. Michigan’s “flagging” system also passed constitutional muster because while  counselors could flag under-represented minority applications, it did not require the counselor to do so. Thus, there were no impermissible quotas or mandatory preferences.

In determining that diversity in higher education, constituted a compelling governmental interest, the court received numerous expert opinions and studies showing the academic benefits of diversity. These studies were critical to the finding that diversity is a compelling interest.

The court then determined whether the CLSA’s program was narrowly tailored to achieve its objective of diversity. CLSA introduced evidence to the court that other race-neutral attempts to achieve diversity were unsuccessful. The CLSA had implemented marketing efforts designed to attract minorities to its program, but they were unsuccessful.  An expert for CLSA testified that the use of race-neutral admissions programs, such as admitting all students who finished in the top 10 percent of their high school class, was not effective in enrolling a diverse student body because high schools differ substantially in the academic abilities of their students and the level of difficulty in their courses. The same expert rejected income-based strategies for achieving diversity because there were simply too few minorities from poor families who had strong enough academic records to qualify for admission to highly selective institutions. The expert opined that, if universities totally eliminated the consideration of race from the admissions process, “over half of the black students in selective colleges today would have been rejected.” This evidence led the court to find that other race-neutral alternatives were not feasible and would not aid the CLSA in obtaining a diverse student population.

Why did the Ninth Circuit and Michigan courts reach a different conclusion than the Georgia court several months earlier? At least one important distinction appears to be the evidence introduced by the Universities.

The federal court for the Southern District of Georgia determined that the University of Georgia’s (UGA) admissions program violated Title VI and the Fourteenth Amendment because UGA’s articulated reason for using race and gender in its admissions process was generalized, ill-defined, and relied on stereotypical assumptions about particular races and gender.  UGA also failed to identify how its goal of diversity would ever be met by its admissions program.  CLSA, on the other hand, put forth the testimony of several experts and introduced studies both supporting its use of race to obtain diversity in higher education and calling into question other potential alternatives for achieving diversity.

Another distinction between the two Universities was the finding that UGA was doing nothing more than attempting to achieve racial balancing. CLSA’s process, however, did not employ a quota system or attempt to achieve a certain racial population.

What can a university learn from these cases?  Be careful.  Whether diversity in the educational setting is a compelling governmental interest remains an unsettled question.  Even when diversity is found to be a compelling interest, an application process may still be struck down if it is not narrowly tailored to achieve its objectives.  Complicating the issue further are state initiatives, such as those of Florida and Washington which prohibit the use of race in admissions processes.  Until the U.S. Supreme Court decides the issue, a university is well-advised to employ race or gender in their admissions as narrowly as possible, avoid quotas or racial balancing, and be prepared to support its diversity goals with hard evidence.