|
July 8, 2003
A Joint Statement of Constitutional
Law Scholars
On June 23, 2003, the United States Supreme Court
upheld the constitutionality of race-conscious admissions policies
designed to promote diversity in higher education. In a 5-to-4 decision
in Grutter v. Bollinger1, the Supreme Court, drawing on
Justice Powell’s opinion in the 1978 case of Regents of
the University of California v. Bakke2, held that student body
diversity is a compelling governmental interest that can justify
the use of race as a “plus” factor in a competitive
admissions process. Applying its “strict scrutiny” standard
of review within the context of higher education, the Supreme Court
upheld the University of Michigan Law School admissions policy as
constitutional. However, in a 6-to-3 decision in Gratz v. Bollinger3,
the Supreme Court held that the University’s current undergraduate
admissions policy was not narrowly tailored to advance an interest
in diversity because it was not sufficiently flexible and did not
provide enough individualized consideration of applicants to the
University.
In ruling that the promotion of student body diversity
is a compelling interest, the Supreme Court’s decisions resolve
a disagreement among the lower federal courts4 and allow selective
colleges and universities throughout the country to employ race
in admissions. The decisions reject the absolute race-blind approach
to higher education admissions advanced by the Grutter
and Gratz plaintiffs and by the U.S. government and others
as amici curiae. The Court’s decisions also effectively
overrule major portions of the 1996 ruling of the U.S. Court of
Appeals for the Fifth Circuit in Hopwood v. Texas5, and
will allow colleges and universities in the states of Texas, Louisiana,
and Mississippi to use race-conscious admissions policies designed
to advance diversity. State universities in California, Washington,
and Florida are still prohibited under their state laws from employing
race-conscious admissions policies; however, private universities
in those states can employ properly designed race-conscious policies
consistent with their obligations under Title VI of the Civil Rights
Act of 1964 and other federal laws.6
Taken together, the Court’s opinions in the
Grutter and Gratz cases reinforce the importance
of flexible and holistic admissions policies that employ a limited
use of race. The Court’s opinion in the law school case, Grutter
v. Bollinger, confirms that admissions programs which consider
race as one of many factors in the context of an individualized
consideration of all applicants can pass constitutional muster.
The Court’s decision to strike down the undergraduate admissions
policy in Gratz as unconstitutional also makes clear that
policies which automatically and inflexibly assign benefits on the
basis of race, such as the University’s undergraduate point
system that allocated a fixed number of points for underrepresented
minority group members, are constitutionally suspect. Universities
that employ systems which lack sufficient individualized review
will need to re-examine their current admissions policies to determine
whether their policies require adjustment or revision in light of
the Court's decision in Gratz. Institutions that have adopted
more restrictive policies than the Court's decisions allow may wish
to re-examine their policies to ensure that they are not “overcorrecting”
out of a misplaced fear of being held legally liable.
The University of Michigan decisions involve university
admissions policies, but the decisions have significant implications
both inside and outside of higher education. The rulings imply that
student body diversity supplies a justification for race-conscious
recruitment and outreach, as well as for financial aid and support
programs. The Supreme Court did not address the recent attacks on
race-exclusive financial aid and support programs, but the cases
provide constitutional moorings for the defense of such programs
when they are designed to advance diversity. The outcome of a legal
test of such a program in the Supreme Court is uncertain; however,
because the burdens on non-minority students in most of these programs
are diffused and considerably less than in admissions decisions,
the constitutional scales established by the recent decisions by
no means tip obviously against these programs, especially not against
programs in which individual applicants are given a “whole-person”
evaluation.
Although the Supreme Court has yet to address the
constitutionality of diversity-based affirmative action programs
outside of higher education admissions, language in the Grutter
decision acknowledges the importance of diversity in other contexts,
including K-12 education, government, and private employment and
business. For instance, the Court states expressly that the benefits
of affirmative action “are not theoretical but real, as 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.”
This and other statements by the Court imply that diversity may
be a constitutional predicate for race-conscious affirmative action
programs in areas outside of higher education.
This Paper analyzes the University of Michigan cases
and discusses their impact on higher education policy making and
on the constitutional assessment of affirmative action programs.
The Paper is divided into three parts. Part I examines the U.S.
Supreme Court’s opinions in the Grutter and Gratz
cases and discusses the constitutional boundaries for race-conscious
admissions policies established by the Court. Part II examines the
appropriate use of race in higher education admissions policies,
as well as race-conscious financial aid, recruitment, and support
programs. Part III examines the potential impact of the decisions
on areas outside of higher education, including K-12 education and
employment.
----------------------------------------------------------------------------------------------------
To view the COMPLETE LEGAL
MEMO go to:
Reaffirming
Diversity: A Legal Analysis of the University of Michigan Affirmative
Action Cases (in PDF Format)
|
