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. (Law School) 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.

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 Law School’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 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.

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.

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.

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 (5^th 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.

Some financial aid programs have been challenged in litigation or in complaints to the U.S. Department of Education’s Office for Civil Rights. For example, in October 1998 a white male student at the University of Tulsa filed a class action suit against the Oklahoma State Regents for Higher Education in federal district court (Pollard v. State of Oklahoma), challenging the legality of a scholarship program that set different test-score requirements for members of different racial groups and for men and women. The Oklahoma Academic Scholars Program was established by state law and provides scholarships to in-state students with high test scores. The case was settled in 1998, and in June 1999 the state eliminated the race and gender-specific features of the program.

The Department of Education policy guidance has not been amended by the current administration as of the date of the writing of this outline, although some commentators have expressed concern about this possibility. The guidance describes the applicability of Title VI and its implementing regulations to student financial aid that is awarded, at least in part, on the basis of race or national origin. The guidance sets forth several principles, which are described briefly below, and provides legal analysis to support each of the principles. The Department noted that in identifying these principles, it was “not foreclosing the possibility that there may be other bases on which a college may support its consideration of race or national origin in awarding financial aid,” and that other justifications presented during the course of a Title VI investigation would be considered on a case-by-case basis. 59 Fed. Reg. 8756, n.1.

Principle 1: Financial Aid for Disadvantaged Students

A college may make awards of financial aid to disadvantaged students, without regard to race or national origin, even if that means that these awards go disproportionately to minority students. Id. at 8757.

The guidance notes examples such as aid for students from low-income families or from school districts with high dropout rates, or for students from single-parent families or families in which few or no members have attended college. Other possibilities might include students from particular geographic locations (e.g., the inner city). Although some critics charge that such programs serve largely as proxies for the consideration of race, they are likely to be upheld if they can be shown to relate in some broad sense to the mission and goals of the institution. As the Department noted,

It is the Department’s view that awarding financial aid to disadvantaged students provides a sufficiently strong educational purpose to justify any racially disproportionate effect the use of this criterion may entail. In particular, the Department believes that an applicant’s character, motivation, and ability to overcome economic and educational disadvantage are educationally justified considerations in both admission and financial aid decisions.

Id. at 8759.

Similarly, financial aid can be awarded based on race-neutral criteria such as experience in diverse cultural or social settings, interest in studying fields such as ethnic studies, interest in community service, etc. This same sort of justification for facially race-neutral criteria has also been used historically to support other criteria that have had a disproportionate impact in favor of white students (e.g., alumni preferences).

Principle 2: Financial Aid Authorized by Congress

A college may award financial aid on the basis of race or national origin if the aid is awarded under a Federal statute that authorizes the use of race or national origin. Id. at 8757.

The Department noted that aid programs authorized under a specific Federal law cannot be considered to violate another Federal law (i.e., Title VI), based on “the canon of construction under which the specific provisions of a statute prevail over the general provisions of the same or a different statute.” Id. (citations omitted). A question that often arises, however, is the degree of specificity needed in legislation and in legislative history to demonstrate specific congressional intent to create race-targeted programs. Furthermore, in 1995, the Supreme Court ruled that federal programs containing racial classifications are subject to the same level of scrutiny as state and local programs. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

Since the guidance was issued, some federal financial aid programs have been challenged or modified. For example, a white male graduate student at Clemson University--who failed to win one of 2250 National Science Foundation (“NSF”) research fellowships--sued NSF in federal court in 1997 for denying him a chance to apply for one of 400 additional slots in NSF’s Minority Graduate Research Fellowship Program based on his race. See Kidd v. National Science Foundation, No. 97-2005-A (E.D. Va. filed Dec. 12, 1997). Slots in the program had been reserved for members of groups traditionally underrepresented in science and engineering—blacks, Hispanics, Native Americans, and Pacific Islanders. NSF initially contended that its mandate for the fellowship program came directly from its founding mission to strengthen U.S. science and from more recent legislation ordering it to take steps to increase the number of minorities in science. The suit was settled in 1998, and NSF developed a new program of graduate fellowships making financial awards to institutions instead of to individual students.

Principle 3: Financial Aid To Remedy Past Discrimination

A college may award financial aid on the basis of race or national origin if the aid is necessary to overcome the effects of past discrimination. 59 Fed. Reg. at 8757.

This principle requires the demonstration of a nexus between present effects and past discrimination in policies, practices, etc. The Department stated that a finding of discrimination may be made by a court, administrative agency such as the Department’s Office for Civil Rights, or a State or local legislative body with a strong basis of evidence of discrimination within its jurisdiction. The guidance stated that a college need not wait for such a finding to act, however, so long as the institution had a strong basis in evidence for concluding that race-conscious affirmative action was needed to overcome the effects of its own past discrimination.

Financial aid has been used at a number of institutions as a tool to overcome the effects of past discrimination, frequently in states that had once had de jure segregated systems of higher education—many of which were subject to continuing desegregation orders. Race-restricted scholarships have been offered to white students at historically black institutions, as well as to black students at traditionally white institutions. For example, a federal judge in 1995 ordered two historically black institutions in Alabama (Alabama State University and Alabama A&M University) to spend up to $1 million a year for ten years in new state funding on scholarships for white students. The Center for Individual Rights brought suit on behalf of non-white students, and the case was eventually merged with the state’s broader desegregation case.

In Podberesky v. Kirwan, a white Hispanic student claimed that his ineligibility for the University of Maryland’s Banneker Scholarship program for African-American undergraduates violated his 14^th Amendment equal protection rights and Title VI. The University had established the scholarship program years ago as part of a desegregation compliance plan, as the state had formerly had a de jure segregated system of higher education. The University contended that it needed the program to overcome present effects of past discrimination, and cited minority underrepresentation and low retention and graduation rates. The Fourth Circuit Court of Appeals held, however, that the University failed to demonstrate a sufficient nexus between the present conditions it identified and past discriminatory policies or practices, and that in any event the scholarship program was not narrowly tailored to remediate the problems identified by the University. 38 F.3d 147 (4^th Cir. 1994), cert. denied, 514 U.S. 1128 (1995).

If a race-targeted aid program is being justified on this basis, some key questions to consider might include the following:

• Is there specific evidence of past discrimination (e.g., in terms of policies, practices, etc.) at the institution, rather than simply in society at large?
  
  
• Is there specific evidence of present effects of discrimination at the institution, rather than simply in society at large (as opposed to general concerns about underrepresentation or a racially hostile climate mirroring larger societal conditions, for example)?
  
  
• Is there some demonstrable nexus between the present effects and the past discrimination?
  
  
• What body has made the decision about the need for this form of affirmative action?

Principle 4: Financial Aid To Create Diversity

A college should have substantial discretion to weigh many factors—including race and national origin—in its efforts to attract and retain a student population of many different experiences, opinions, backgrounds, and cultures—provided that the use of race or national origin is consistent with the constitutional standards reflected in Title VI, i.e., that it is a narrowly tailored means to achieve the goal of a diverse student body. 59 Fed. Reg. at 8757.

This principle reflects the diversity rationale outlined by Justice Powell in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), and reiterated in the University of Michigan cases. Justice Powell noted that colleges have a First Amendment right to seek diversity in admissions to fulfill their academic mission through the “robust exchange of ideas” that flows from a diverse student body. Id. at 312-13. The Department noted in its guidance that race-targeted financial aid is not the same as race-conscious affirmative action in admissions, because (among other reasons) financial aid does not involve a finite, set number of places, and the availability of such financial aid might actually increase the total pool of financial aid available to all students.

Some key questions to consider include the following:

• Has the institution articulated an interest in diversity (e.g., as part of its mission statement)? Does this interest vary within or among the institution’s various components (e.g., undergraduate and graduate schools)?
  
  
• Has the institution developed any evidence of the educational benefits of diversity on its own campus (e.g., through survey information from its students, faculty, or alumni)?
  
  
• What groups are considered for purposes of race-conscious financial aid? Are there articulated reasons for the inclusion of some groups and not others? Is there any reason to subdivide certain categories (e.g., Asian-Americans) in light of institutional needs and demographics?
  
  
• How is the issue of “mixed race” handled?

Narrow Tailoring

This section of the guidance also provides information about the factors that should be taken into account in ensuring that a program is narrowly tailored to meet the stated goal.

Among the considerations that affect a determination of whether awarding race-targeted financial aid is narrowly tailored to the goal of diversity are (1) whether race-neutral means of achieving that goal have been or would be ineffective; (2) whether a less extensive or intrusive use of race or national origin in awarding financial aid as a means of achieving that goal has been or would be ineffective; (3) whether the use of race or national origin is of limited extent and duration and is applied in a flexible manner; (4) whether the institution regularly reexamines its use of race or national origin in awarding financial aid to determine whether it is still necessary to achieve its goal; and (5) whether the effect of the use of race or national origin on students who are not beneficiaries of that use is sufficiently small and diffuse so as not to create an undue burden on their opportunity to receive financial aId.

59 Fed. Reg. at 8757. In a number of recent cases, courts have focused on the narrow tailoring issue in scrutinizing programs--rather than the more fundamental question of whether the diversity rationale articulated by Justice Powell constitutes a compelling interest.

In determining whether a program is narrowly tailored to achieve a compelling interest in diversity, some questions to consider might include the following:

• Has the institution considered race-neutral means to achieve its stated goals? Have such means actually been tried, or at least analyzed and determined to be not sufficiently effective?
  
  
• Is the institution also making other types of efforts to reach its goals (e.g., in terms of outreach, recruiting, etc.)?
  
  
• To what extent is race considered as a factor (e.g., is it a “plus” factor or an exclusive criterion)?
  
  
• Are other factors also considered in terms of diversity that contributes to the robust exchange of ideas (e.g., geography, special skills and talents, socioeconomic status, disadvantaged backgrounds, etc.)?
  
  
• Is the program regularly reevaluated for its impact and effectiveness, in light of changes in institutional needs, admissions or student body demographics, yields, etc.?
  
  
• Is the program flexible enough so as to allow for the consideration of exceptions or special circumstances (e.g., are white students from disadvantaged backgrounds ever considered)?
  
  
• Does the program rely upon general goals rather than quotas?
  
  
• How does the race-targeted financial aid available compare with the amount of overall financial aid available, taking into account the various types of financial aid (grants, loans, work-study, etc.)?

Principle 5: Private Gifts Restricted by Race or National Origin

Title VI does not prohibit an individual or an organization that is not a recipient of Federal financial assistance from directly giving scholarships or other forms of financial aid to students based on their race or national origin. Title VI simply does not apply. Id.

This principle reflects the limitations on the reach of Title VI, which applies to entities that are recipients of Federal financial assistance (i.e., almost all colleges and universities). If a college or university is involved directly in administering a financial aid program, however, or provides significant assistance to an outside program—even if that program is funded by external sources—then Title VI might still apply. For example, in 1997 the Office for Civil Rights decided that privately funded scholarships at Northern Virginia Community College ran afoul of Title VI in part because the scholarships were administered by a foundation, located at the college, that college officials had created to support the institution. See Healy, Patrick, “Education Department Sends Strong Warning on Race-Exclusive Scholarships,” The Chronicle of Higher Education (Oct. 31, 1997).

In determining whether a privately funded program might nevertheless fall within the ambit of Title VI, some key questions to ask might include the following:

• To what extent is the institution involved in administering, or providing significant assistance to, the privately funded program?
  
  
• Does the institution set the criteria for, or select the recipients of, the privately funded aid?
  
  
• Does the institution provide resources or information to the private program that it does not generally make available to other outside providers of financial aid?

Financial Aid at Historically Black Colleges and Universities

The policy guidance includes additional guidance indicating that historically black colleges and universities (HBCUs) may participate in student aid programs established by third parties for black students that are not limited to students at the HBCUs (e.g., the National Achievement Program), and that HBCUs may use their own institutional funds in those programs if necessary for participation. 59 Fed. Reg. at 8763. This provision is intended to ensure that the policy guidance does not subvert congressional efforts to enhance HBCUs in light of their historical role in American higher education.

The principles applicable to admissions and financial aid may also apply to other types of educational programs and activities in which race or national origin is considered as a factor for participation. These programs might include, for example, recruiting and outreach programs, mentoring or tutoring programs, bridge or summer programs, special orientation programs, etc. The Center for Individual Rights (CIR) has long asserted that such programs are subject to the same sorts of legal challenges as admissions and financial aid programs. See, e.g., Racial Preferences in Higher Education: The Rights of College Students—A Handbook (Center for Individual Rights, 1998). The Center for Equal Opportunity and American Civil Rights Institute have also written letters to dozens of colleges and universities, indicating that they will challenge such programs (particularly if they are race-exclusive in nature).

As Justice O’Connor indicated in the Grutter decision, however, “context” is important. In other words, each program must be evaluated carefully on a case-by-case basis in terms of its history, purposes, and impact on minority and majority students (among other factors). In reviewing such programs, some factors to consider might include:

• The history and purpose of the program, including any external relationships involved (e.g., participation in a consortium with other institutions)
  
  
• How the program relates to other University programs (e.g., admissions, financial aid, etc.)
  
  
  • o Does the program directly support the University’s admissions and recruitment efforts—i.e., is it designed to increase applications, the yield of students with particular types of backgrounds, etc.?
    
    
• What criteria are considered for participation in the program? Are some non-minority students eligible to participate (e.g., based on socioeconomic disadvantage or other factors)?
  
  
• What benefits are related to participation in the program? To what extent do other students have access to the same types of resources or services offered in the program?
  
  
• Have alternatives been considered in which race plays less of a role (e.g., including race-neutral alternatives)? To what extent would such alternatives impact the purpose and success of the program?

Future Challenges

In addition to possible litigation or complaints filed with the U.S. Department of Education’s Office for Civil Rights (under Title VI of the Civil Rights Act of 1964), opponents of affirmative action in higher education have indicated that they will pursue other political and public relations strategies to try to eliminate any consideration of race or national origin in programs run or administered by colleges and universities. For example, Ward Connerly has already indicated that he will pursue a ballot initiative in Michigan (similar to California’s Proposition 209) to amend the state constitution so as to prohibit the consider of race, national origin, and gender in higher education admissions as well as other contexts. Similar efforts are underway in other states (e.g., Colorado).

Collaborative Efforts

In light of the Court’s stated expectation that the consideration of race as a factor in admissions will no longer be necessary in 25 years, colleges and universities should be working in partnership with other institutions in society to study and address educational preparation and opportunity for students at all levels. Creative collaborations (e.g., with corporations, other non-profit organizations, states, school districts, etc.) to deal with “pipeline” issues such as K-12 student preparation, teacher training, and other barriers to equal access and achievement should be pursued. All institutions in society have a vested interest in ensuring diversity at all levels, and all have expertise and resources to bring to the table. The great coalition of interests that worked to convince the Supreme Court that diversity is a compelling interest in higher education must now turn its attention to the underlying inequities and barriers in our society. Institutions which are actively engaged in such efforts will be able to demonstrate that they are taking proactive steps to meet the challenge set forth by the Court.

Prepared by:

Jonathan Alger, Assistant General Counsel, University of Michigan
503 Thompson St., Room 5026
Ann Arbor, MI 48109-1340
Phone: 734-764-0304
Fax: 734-615-8937
E-mail: [email protected]

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