I.    Recent Cases Involving Affirmative Action Issues in Education

* Cites in bold are the highest court opinion on the substantive issues of a particular case.

1. Higher Education Systems
   
   
   1. Michigan

Grutter v Bollinger, 137 F. Supp. 2d 821 (E.D. Mich. 2001), stay granted, 247 F.3d 631 (6^th Cir. 2001), hr’g en banc ordered, 277 F.3d 803 (6^th Cir. 2001), rev’d 288 F.3d 732 (6^th Cir. 2002), aff’d 539 U.S. 306 (2003).

This case involved a class action challenge to the University of Michigan Law School’s race-conscious admissions program. Named plaintiff Barbara Grutter was an unsuccessful white applicant to the Law School for the Fall 1997 class. The arguments of the plaintiff, University, and intervenors are essentially the same as in Gratz (below).

The Law School’s admission policy of holistic review is narrowly tailored to pursue a “critical mass” of students from under-represented groups, providing a class with meaningful numbers of minority students “to ensure that all students—majority and minority alike—will be able to enjoy the educational benefits of a diverse student body.”

On June 23, 2003, in an opinion by Justice O’Connor (joined by Justices Stevens, Souter, Ginsburg, and Breyer), the Supreme 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 Law School'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 Law School 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 Law School 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 Law School 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 now, such programs will no longer be necessary.

Gratz v Bollinger, 122 F. Supp.2d 811 (E.D. Mich. 2000), rev’d 539 U.S. 244 (2003) on remand to 80 Fed. Appx. 417 (6^th Cir. Mich.).

This case involved a class action challenge to the University of Michigan’s race-conscious admissions program to its largest undergraduate college. Named plaintiffs Jennifer Gratz and Patrick Hamacher were unsuccessful white applicants to that college in 1995 and 1997, respectively, and the Center for Individual Rights (“CIR”) sued University officials on their behalf in October 1997. They argued that the program violated the 14^th Amendment and Title VI of the Civil Rights Act because it considered race and gave race too much “weight”. The University argued that its program is justified by the pursuit of educational benefits of diversity, and that the program is “narrowly tailored” to pursue that interest. The University considered a variety of factors in a point system, including, among others, whether the student was socioeconomically disadvantaged or came from an educational environment that was socioeconomically disadvantaged, and whether the student was a member of an underrepresented racial or ethnic community or came from a school that served those communities. The vast majority of the points (110 out of 150) were awarded based on academic criteria, and the remainder related to personal characteristics and accomplishments that could contribute to the diversity of the class as a whole.

On the same day as the Grutter decision, 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 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 had the effect of making race a decisive factor for underrepresented minority applicants. The fact that certain files were 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 occurred only after the points were 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. The University subsequently altered its undergraduate admissions policy so as to constitute a holistic, individualized review process in which race is one of may factors considered (but in which points are not used and race is not given a particular weight) See http://www.admissions.umich.edu/process/

2. Washington

This case involves a challenge to the race-sensitive admissions program at the University of Washington Law School. The case was certified as a class action and the plaintiffs sought admission to the Law School as well as damages. In November of 1998, a state statute was enacted by ballot initiative (I-200) making it unlawful to consider race in public education, employment or contracting. In the wake of I-200, the University decided to discontinue its race-sensitive admissions programs and moved the court to dismiss as moot the class action portion of the case as well as the injunctive relief sought by the individual plaintiffs.

In February 1999, the Court issued an opinion on the plaintiffs’ summary judgment motion affirming that Bakke is still good law and stands for the proposition that educational diversity can be a compelling governmental interest justifying race-sensitive admissions programs. On December 4, 2000, the Ninth Circuit affirmed the district court’s ruling that the Supreme Court’s 1978 Bakke decision is still good law and that Justice Powell’s opinion, as the “narrowest” opinion in support of the holding, is the controlling opinion in that case. In May 2001, the U.S. Supreme Court declined to review the case. The case then went to trial in federal district court on April 8, 2002 on the issues of damages and whether the Law School’s policy was narrowly tailored to fit the compelling state interest in educational diversity. In a decision dated June 5, 2002, the court found for the Law School on all claims, stating that its admission program during the years 1994, 1995 and 1996 was consistent with Bakke and adequately relied upon the Harvard Plan cited as a model by Justice Powell in Bakke. This decision was subsequently appealed to the 9^th Circuit.

3. Texas

Hopwood v. Texas, 861 F. Supp. 551 (W.D. Tex. 1994), rev’d 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996), remanded to 999 F. Supp. 872 (W.D. Tex. 1998), aff’d in part, rev’d in part, 236 F.3d 256 (5th Cir. 2000), cert. denied, 533 U.S. 929 (2001)

This case involved a challenge to the race-sensitive admissions policy at the University of Texas Law School. The so-called “Hopwood III” decision was issued December 21, 2000. The 5th Circuit Court of Appeals held that Bakke was not controlling authority and reversed the district court’s injunction against the Law School and affirmed the awarding of nominal damages and attorney’s fees to the plaintiffs. In June 2001, the Supreme Court rejected a petition from Texas to review the case.

The Fifth Circuit initially struck down the admissions policy and the case was remanded to the district court, which determined that even under a fully “color-blind” system, the plaintiffs would not have been accepted to the law school and had not proved any damages. Plaintiffs were awarded nominal damages, attorneys’ costs and fees.

Texas v. LeSage, 158 F.3d 213 (5th Cir. 1998), rev’d, 528 U.S. 18 (1999)

This case involved a white applicant to a PhD counseling psychology program who sought damages for discrimination due to the program’s race-conscious admissions policy. The Supreme Court held that if the plaintiff would have been rejected under a race-neutral admissions policy, he had no cognizable injury warranting relief under 42 U.S.C. §1983. If, however, the plaintiff had sought “forward looking relief,” i.e. to be admitted to the program, he would not have to establish that he would have been admitted under a race-neutral program.

4. Georgia

Wooden v. Board of Regents of the University System of Georgia, 32 F. Supp. 2d 1370 (S.D. Ga. 1999), vacated sub nom. Tracey v. Board of Regents of the University System of Georgia, 208 F.3d 1313 ( 11^th Cir. 2000), on remand, 2000 WL 1123268 (S.D. Ga. June, 16 2000), aff’d in part, rev’d in part, and dismissed in part sub nom. Wooden v. Board of Regents of the University System of Georgia, 247 F.3d 1262 ( 11^th Cir. 2001)

Johnson v. Board of Regents of the University System of Georgia, 106 F. Supp. 2d 1362 (S.D. Ga. 2000), aff’d, 263 F.3d 1234 ( 11^th Cir. 2001)

These cases involved challenges to the University of Georgia’s race-conscious admissions policy. The 11^th Circuit Court of Appeals declined to reach the question of whether diversity is a compelling governmental interest but struck down the policy on the grounds that it was not “narrowly tailored” to serve that interest. In particular, the appeals court was troubled that only a small portion of the applications were read individually, that race was a factor for every minority applicant, and that there was no coherent rationale linking the interest in diversity to the specifics of the policy. After the district court decision, the University discontinued the use of its race-conscious policy and settled the individual plaintiffs’ claims. On July 31, 2002, the University announced a new policy in which factors such as creativity, maturity and a history of public service would be taken into account in admissions.

There are several opinions from the district court on the standing of particular plaintiffs, on the prior admissions system and on the application of LeSage (above) to the plaintiffs’ claims for damages. On July 24, 2000 the district court held that the admissions policy was unconstitutional.

5. Maryland

This case involved a challenge to the admissions program of the University of Maryland School of Medicine. The School’s strategic admission plan called for a diverse student body, but there was not a specific number of seats set aside for any particular classification. Instead, the admissions committee was permitted to consider “non-cognitive” criteria, which included the race of the applicant that was indicated on an application. The case was brought in federal court in Maryland by a white male who had been denied admission twice. Farmer contended that the School of Medicine manipulated the “non-cognitive” criteria in order to admit minority students with weak grades and test scores. The district court used the “same decision” test articulated in Wooden (mentioned above) to find that the plaintiff lacked standing to bring the suit because he would have been rejected regardless of any constitutional violation. Under this test, a university may defeat liability by showing that an applicant would not have been admitted even if race had played no role in the decision process. This was based upon an examination of the plaintiff’s undergraduate grades, letters of recommendation, MCAT scores, and personal statements. The School of Medicine produced adequate evidence that all applicants with academic records and letters of recommendation similar to those of the plaintiff were denied admission. The Fourth Circuit Court of Appeals affirmed the decision on August 3, 2002.

The courts found no direct evidence of either discrimination against the plaintiff or the School of Medicine operating a de facto quota system.

6. Nevada

University and Community College System of Nevada v. Farmer, 930 P.2d 730 (Nev. 1997), cert. denied, 523 U.S. 1004 (1998)

This case involved an unwritten affirmative action policy of the University of Nevada-Reno entitled the “Minority Bonus Program,” which allowed a department to hire an additional faculty member after the hiring of a minority faculty member. The court found the policy was constitutionally sound and promoted Bakke’s holding that race may be considered among other factors. The goal of achieving a diverse faculty was seen as analogous to achieving a diverse student body. The plan survived a Title VII challenge under the factors set out in United Steelworkers of America v. Weber, 443 U.S. 193 (1979) because it does not “unnecessarily trample the interests of white employees”, is a temporary measure, and is utilized to break down old patterns of racial segregation and hierarchy.

7. New York

Weser v. Glen, 190 F. Supp. 2d 384 (E.D.N.Y. 2002), aff’d 41 Fed. Appx. 321 (2^nd Cir 2002)

This case involved a challenge to the admissions policy of the City University of New York Law School at Queens College brought by a rejected white male applicant. Summary judgment was granted for the defendant. The school stated that it strove to achieve diversity through actively seeking to recruit “men and women of all races, national origins, classes, sexual orientations, and belief systems.” In effect, diversity is achieved through recruiting the largest applicant pool possible. Race and gender are not factors in admissions decisions and all students admitted are held to the same academic standards. The court found this policy to be facially neutral and non-discriminatory.

8. Oklahoma

Pollard v. State of Oklahoma (W.D. Okla., complaint filed October 20, 1998)

This case involved Oklahoma’s Academic Scholars Program that provided full and partial scholarships to Oklahoma colleges. The program was divided into three categories: for students whose SAT or ACT scores fell into the top 0.5% (Category I), 1% (Category II), and 2% (Category III) of all scores in Oklahoma. The program also allowed students of certain races to compete solely with other students in their racial or gender group. The white male plaintiff alleged that he was denied a Category III scholarship because there were too many qualifiers in Categories I and II, some of whom were minority students with lower test scores than himself. In June 1999, the race and gender-specific features of the policy were eliminated. The case eventually settled in 2000.

2. High School and Elementary School Systems
   
   
   1. Parents Involved in Community Schools v. Seattle School District, No. 1, 137 F. Supp. 2d 1224 (W.D. Wash. 2001), rev’d, 285 F.3d 1236 (9^th Cir. 2002), withdrawn, 294 F.3d 1084 (9^th Cir 2002), certifying questions, 294 F.3d 1085 (9^th Cir. 2002), on remand, 149 Wn. 2d 660 (Wash. 2003), App’d, No. 01-35450 (9^th Cir. 2004).

This action commenced in July, 2000. Plaintiffs describe themselves as “a nonprofit corporation formed by parents whose children have been or may be denied admission to the high school of their choosing solely because of race.” The city of Seattle allowed students to choose which of the ten high schools in the city they wished to attend. When a particular school was oversubscribed, a tiebreaker system was used to decide which students to admit. The first tiebreaker gave preference to students with siblings already attending the school. The second tiebreaker was based entirely on race in an attempt to balance the racial makeup of the various schools. The plaintiffs alleged that this policy was in direct opposition to a 1998 Voter Initiative, I-200, that forbade state discrimination against, or granting of preferential treatment to, any individual or group on the basis of race. The plaintiffs also relied on the Equal Protection Clause of the Fourteenth Amendment and the Civil Rights Act of 1964, 42 U.S.C. § 2000d.

In 2001, the Federal District Court for the Western District of Washington granted summary judgment for the defendant. Construing the Washington State Constitution as requiring a diverse environment for education, the court found I-200 inapplicable to the assignment plan. As to the federal claims, the court found the system narrowly tailored to fit the compelling government interests of diversity and mitigating de facto segregation.

The case was appealed to the 9^th Circuit and was reversed on April 16, 2002. The court looked only to the state claim and found that the plain language of I-200 forbade the granting of any preferential treatment on the basis of race, regardless of whether the preference varied depending on which school was preferred by the particular student. The court found no educational diversity requirement in the Washington Constitution in the absence of de jure discrimination. The court relied on an expansive reading of Bakke, stating that Powell’s opinion is still controlling law. Under the Grutter analysis, the court determined that, although diversity is a compelling interest, the tie-breaker system did not fulfill the narrow tailoring requirement. Discussion on the federal claims was not thought to be necessary. A concurring opinion criticized the majority’s reading of Bakke as too broad and its comparison of I-200 to federal law as unwarranted due to a lack of substantial similarity. An injunction was granted against the defendant on April 26, 2002. The Supreme Court of Washington subsequently held that the use of a racially cognitive tiebreaker did not violate state law.

On July 27, 2004, a three-judge panel of the 9^th Circuit followed the Grutter & Gratz analysis and held that diversity is a compelling interest in the K-12 context, but struck down the school district's use of a race-based tiebreaker on narrow tailoring grounds. In a 2-1 decision, the court held that the use of a racial tiebreaker is an impermissible, mechanical use of race. The court also stated that race-neutral alternatives must be earnestly considered, on the record. It further stated that deference to educational institutions is appropriate with regard to their identification of compelling interests, but not on narrow tailoring. Furthermore, such deference should apply only to institutions' pursuit of internal, core educational goals -- not to more external or tangential benefits that the educators are not uniquely positioned to evaluate (e.g., broader societal benefits that might result from diversity within the institutions). Judge Graber wrote a vigorous dissent that would have upheld the school district's policy with regard to both the compelling interest and narrow tailoring. The school district has indicated that it will seek review by the full 9^th Circuit.

2. Capacchione v. Charlotte-Mecklenburg Schools, 57 F. Supp. 2d 228 (W.D.N.C. 1999), aff’d in part, vacated in part, rev’d in part sub nom. Belk v. Charlotte-Mecklenburg Board of Education, 233 F.3d 232 (4^th Cir. 2000), reh’g en banc, 269 F.3d 305 (4^th Cir. 2001), cert. denied, 122 S. Ct. 1538 (2002)

Despite the fact that a school district had achieved unitary status, the court found its race-conscious admissions policy for a magnet school to be lawful because the district had been under desegregation orders when the policy was implemented. In dicta, the court stated that the magnet school policy would be unconstitutional if implemented by a unitary school district.

3. Brewer v. West Irondequoit Central School District, 32 F. Supp. 2d 619 (W.D.N.Y. 1999), vacated, 212 F.3d 738 (2^nd Cir. 2000)

This case involved a challenge to an urban-suburban school district transfer policy. In order to prevent “racial isolation” only minority students were allowed to transfer from urban to suburban schools, and only white students were allowed to transfer from suburban to urban schools. The plaintiff, a white student who wanted to transfer to a suburban school, claimed that this policy violated the 14^th Amendment and obtained a preliminary injunction against enforcement of the policy from the District Court. The Court of Appeals vacated the injunction and remanded for a trial on the merits based on its view that the plaintiff could not clearly demonstrate a likelihood of success on the merits. The court held that in light of: (1) previous cases of the 2^nd Circuit which held that reducing de facto segregation could be a compelling governmental interest; (2) the absence of a Supreme Court decision dealing with permissible race-based justifications in the educational context; and (3) the lack of a clear rule regarding permissible justifications for race-based classifications generally, it was not “clear” that “preventing racial isolation” was not a constitutional justification for the transfer policy.

4. Eisenberg ex rel. Eisenberg v. Montgomery County Public Schools, 197 F.3d 123 (4^th Cir. 1999), cert. denied, 529 U.S. 1019 (2000)

A white non-Hispanic first grade student was denied admission to Rosemary Hills Elementary, a magnet school in Montgomery County, Maryland. The denial was based upon the negative impact the student’s departure would have on the “diversity profile” of the school to be exited. The District Court denied the child’s parent’s request for declaratory and injunctive relief. The Court of Appeals chose to leave “unresolved” the question of whether diversity is a compelling governmental interest. However, the Court concluded that the school’s policy was not narrowly tailored because it was aimed at racial balancing; it explicitly compared the diversity in the school to that of the population. Montgomery County filed a petition for certiorari to the Supreme Court that was denied on March 21, 2000.

5. Tuttle v. Arlington County School Board, 195 F. 3d 698 (4^th Cir. 1999), cert. dismissed, 529 U.S. 1050 (2000)

In April 1998, the District Court struck down the admissions program to Arlington Traditional School, an alternative public elementary school in Arlington, Virginia. Without allowing the School Board to present evidence on the educational value of diversity, the court ruled that educational diversity is not a compelling governmental interest: “Even if the court accepts defendants’ contention that diverse student enrollments are educationally preferable, the court cannot conclude that the goal of diversity excuses racial discrimination.” The admissions program compared the pool of applicants to the district’s overall student population with respect to family income, race/ethnicity and whether English was a first language. Depending on how different the composition of the pool was from the population, the admissions lottery would be weighted for those characteristics. The Fourth Circuit Court of Appeals assumed (but did not decide) that diversity is a compelling interest, but held that the policy was not narrowly tailored to that interest. The Appeals Court further ruled that the District Court abused its discretion when it ordered the School Board to adopt a specified admissions policy. The School Board filed a petition for a writ of certiorari to the Supreme Court that was denied on March 28, 2000.

6. Hunter ex rel. Brandt v. The Regents of the University of California, 971 F. Supp. 1316 (C.D. Cal. 1997), aff’d, 190 F. 3d 1061 (9^th Cir. 1999), cert. denied, 531 U.S. 877 (2000)

The University of California’s admission policy to a laboratory elementary school was challenged on the grounds it violated the equal protection clause. The elementary school’s purpose was to research issues pertinent to the education and social development of children in multicultural urban settings. The results were then shared with the state’s public school teachers. To accomplish the research aims, the University sought to enroll a diverse student body and therefore took race, gender, ethnicity, and family income into account in admissions. The Court of Appeals upheld the district court’s decision that the admission policy was narrowly tailored to serve the compelling governmental interest of improving the quality of education in urban public schools. A petition for certiorari to the U.S. Supreme Court was filed on July 18, 2000, and rejected on October 2, 2000.

7. Wessmann by Wessman v. Boston School Committee, 996 F. Supp. 120 (D. Mass. 1998), rev’d sub nom, Wessmann v. Gittens, 160 F. 3d 790 (1^st Cir. 1998)

The First Circuit decided that the admissions programs at the competitive public high schools in Boston are unconstitutional. The Court assumed, without deciding, that Bakke stands for the proposition that educational diversity can be a compelling governmental interest to justify race-sensitive admissions programs and that Bakke remains good law. But it went on to find that the admissions guidelines “appear to be less a means of attaining diversity in any constitutionally relevant sense and more a means for racial balancing.” The admissions guidelines called for half of the seats in an entering class to be filled in proportion to the racial/ethnic mix of the qualified applicant pool. The School Committee decided not to appeal the First Circuit’s decision.

8. Updated November 1, 2004: Comfort ex rel. Neumyer v. Lynn School Committee, 100 F. Supp. 2d 57, 150 F. Supp. 2d 285 (D. Mass. 2001), dismissed by 283 F. Supp. 2d 328 (D. Mass. 2003), rev’d in part, 2004 U.S. App. LEXIS 21791 (1st Cir. 2004)..

On October 20, 2004, the First Circuit Court of Appeals held that the achievement of racial diversity in K-12 schools was a compelling state interest, but that the school district’s transfer policy was not narrowly tailored to achieve that interest. The school district had adopted a plan to control transfers in an effort to maintain the racial balance of the community within the various student populations of its schools. The court held that the policy used race as a deciding factor and was not sufficiently individualized. The court also held that the policy was not geared toward attaining critical mass and that the district did not fully consider race-neutral alternatives.

The First Circuit noted that the mechanical application of race as the determining factor --without considering any other diversity-related attributes of the children involved--fails strict scrutiny. It also held that the policy was geared toward achieving a particular racial mix that reflected the community population as a whole, rather than a “critical mass” of students from underrepresented groups so as to encourage “intergroup contact.”

The court also cited an omission of any time limits on the plan as required in the Grutter case. The court said that at minimum, the use of race-based factors should be reviewed on a regular basis.

9. Boston’s Children First v. City of Boston, 62 F. Supp. 2d 247 (D. Mass. 1999), aff’d, Anderson ex. Rel. Dowd v. City of Boston, 2004 WL 1562543 (1^st Cir. 2004).

The Boston School Committee voted to abandon the use of race as a factor in determining elementary school placements beginning in September of 2000. This case was a challenge to the use of race during the 1999-2000 school year. The court denied a request for a preliminary injunction because of the disruptive effect of such an order. The court said that plaintiff’s reading of Wessmann (above) was too broad and that there may be instances where diversity is a compelling interest. It distinguished the plan in question from Wessmann’s plan in that it may be more narrowly tailored and it involved elementary schools. The court found that diversity may be more important in elementary schools than in other academic environments. Subsequent hearings were held between 2000 and 2002 on the issues of standing and mootness.

On appeal, the First Circuit examined several points of the lower court decision. First, the constitutionality of the new plan required evaluation of what level of scrutiny would be involved. Since there was no facial race-based classification in the plan, strict scrutiny was not deemed necessary unless there was discriminatory intent or application of the plan. Using rational basis review, the court determined that there was a legitimate state interest to which the new plan had a rational relationship.

Secondly, plaintiff’s request for injunctive relief was found to be moot since the new system was found not to be unconstitutional and there is no evidence of any intention of the school system to go back to using the unconstitutional, race-based system of distribution. In evaluating the denial of even nominal damages to all but two of the plaintiffs, the court cites Texas v. LeSage in stating that there can be no award of damages of any kind where it is clear that the outcome of the government decision would have been the same regardless of whether or not there was any use of racial criteria in the admission process. If this is so, there is no injury for which there can be compensation. In the present case, only two of the ten plaintiffs were found to have been denied access to the school of their choice under the original plan, and were therefore eligible for nominal damages.

The court also held that the plan for assigning students to schools was rationally related to achieving legitimate governmental interests in fostering excellence, equity and diversity though access and educational opportunity throughout the public school system.

10. McFarland v. Jefferson County Public Schools, No. 3:02CV-620-H (W. D. Kentucky 2004)

The District Court for the Western District of Kentucky upheld the Jefferson Country Public Schools “2001 Plan” which allowed for the school district’s voluntary consideration of race in making student assignments to achieve and preserve racial integration in each of the individual public schools, including magnet schools. The court followed Grutter and Gratz but had to adapt the holdings to the context of an elementary and secondary school student assignment plan. The “2001 Plan” was held to meet both the compelling interest requirement and the narrow tailoring requirement.

The aspect of the plan pertaining to JCPS’ use of separate racial categories in the “traditional” schools was held to violate the Equal Protection Clause because it separated students into racial categories and put them on separate assignment tracks in a manner that “appears completely unnecessary to accomplish its objectives.” The school district is revising that part of its assignment plan for the 2005-2006 academic year.

II.    Other Notable Developments in Admissions Practices in Higher Education

Information on recent developments in admissions policies and practices nationwide can be obtained from the following resources, among others:

• The Chronicle of Higher Education (www.chronicle.com)
• NAACP Legal Defense Fund (www.naacpldf.org)

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