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Affirmative Action and Financial Aid
Affirmative action is often defined as the effort to improve access to
higher education for minority and female students. It is typically
implemented through special recruitment efforts and by giving special
preferences to minorities. For example, given two comparable
candidates, affirmative action chooses the minority candidate over the
non-minority candidate.
Some of the key goals of affirmative action are to correct past
discrimination at the college or university, to provide access to
education to qualified and talented students of every race
(especially underrepresented minority students), to level the playing
field by compensating for or eliminating current cultural biases
against minority students (such as those inherent in standardized
academic tests), and to create diversity in the academic
environment. Diversity, in particular, can improve the educational
experience of all students by promoting a variety of perspectives and
a robust and enlightening exchange of ideas and viewpoints.
This document presents a lay interpretation of the laws and court
cases affecting affirmative action, and does not provide legal advice
nor is it intended to provide legal advice. All colleges, universities
and race-based scholarship sponsors should have their admissions and
financial aid policies reviewed by a qualified attorney.
Federal Law
Current US Supreme Court rulings permit public colleges and
universities to consider race in college admissions and financial aid
when it furthers "a compelling interest of the state in obtaining
educational benefits that derive from a diverse student body". Race may
be considered as part of a holistic and flexible individual review
process, but not as part of an automated mechanical process based on
points or quotas. Race needs to be considered for more than just
simple ethnic diversity. The focus must be on the educational benefits
that derive from a diverse student body, and diversity must consider
not only race but also other characteristics that
contribute to diversity. Educational benefits can include
cross-racial understanding, the different perspectives of students who
have experienced discrimination and related disadvantages, the
breakdown of racial stereotypes, and the promotion of effective
participation by all racial and ethnic groups.
Race may also be considered to compensate for actual past
discrimination at the college or university. The discrimination must
have occurred at the educational institution (and not
just in the local community or society at large). The remedy must be
in proportion to the past discrimination and thereby limited in
duration.
The 2003 US Supreme Court rulings give more detail on how to structure
affirmative action processes in a constitutional manner, but the
guidance is still somewhat limited, as follows:
The US Supreme Court rulings apply to all public institutions and any
private institution which receives federal funding.
State Law
Several states have passed state restrictions on the
use of race in college admissions and financial aid. Since the US
Supreme Court rulings permit the use of race in
certain situations but do not mandate it, it is possible for
individual states to pass more restrictive laws. The following states
have passed laws further restricting the use of race
in college admissions and financial aid.
Note that these state laws only apply to public institutions, not
private colleges and universities.
Impact on Private Colleges and Universities
It isn't entirely clear whether private colleges and universities
that receive federal funds (i.e., federal student aid and federal
research grants) are affected by restrictions on the use of race in
college admissions and financial aid. The argument that private
colleges and universities are affected by the ruling hinges on Title
VI of the Civil Rights Act of 1964 (CRA), which bans discrimination on the
basis of race at any institution that receives federal funds. (In
addition, Title VII of the CRA, which bans discrimination in
employment, may apply to graduate fellowship and assistantship
programs to the extent that they can be construed as employment.)
The
US Supreme Court has previously found that the 14th Amendment and Title VI are
coextensive, which means that if a policy violates the 14th Amendment,
it also violates Title VI of the CRA. However, the recent US Supreme
Court rulings did find that colleges have a compelling interest in the
use of race in admissions, and so affirmative action is not in itself
unconstitutional. (The government may treat individual people
differently according to race only for the most compelling reasons
and when the racial classification is narrowly tailored to further
those compelling interests.
When race must be considered to further a compelling interest, it does
not violate the equal protection clause of the 14th amendment when the
use of race is narrowly tailored to achieve the compelling interest
and the goal is sufficiently compelling to warrant the use of race.)
Rather, it is only the University of Michigan's automated approach
using a point system that is not narrowly tailored and hence
unconstitutional.
As a result, it appears that Title VI of the CRA does not prohibit the
use of race in admissions and financial aid. This means that private
colleges can continue to consider using race in college admissions and
financial aid, to the extent that they do not rely on mechanical formulas
involving race. Since private colleges tend to review every
application and use a more subjective process, they can avoid the need
to use an automated system involving race. This gives them an
advantage over public colleges, which are often faced with a much larger
applicant pool and class size.
In addition, schools that receive Federal funds are bound by Title I,
Part B, Section 111(a) of the Higher Education Act of 1965
which prohibits using federal funds, directly or indirectly, to
discriminate on the basis of race, religion, sex or national origin,
by Title IX, Section 1681 of the Education Amendments of 1972,
which bars discrimination on the basis of sex (note exception in
1681(a)(9) for scholarships awarded by beauty pageants),
and by the Age Discrimination Act of 1975, which bars discrimination on
the basis of age.
There are also several Federal regulations that prohibit
discrimination in the provision of financial aid. For example,
45 CFR 80.3(b) prohibits
discrimination on the basis of race, color or national origin in the
awarding of financial aid under programs receiving federal assistance
through the Department of Health and Human Services. Similarly, 34 CFR
1200.130(b) prohibits discrimination on the basis of handicap.
Race-based Scholarships Funded by Private Donors
There is also some debate about whether schools may administer
minority scholarships that are funded by private donors. Rice
University, for example, has rejected donations from alumni who sought
to place racial restrictions on scholarship funds. On the other hand,
there is no problem with purely private minority scholarships such as
the Gates Millennium Scholarship Fund and the United Negro College
Fund. The problem arises when the college has a role in the selection
of recipients or provides resources for the raising of funds.
If the private donor specifies a selection method that provides the
school with little or no room for subjective judgment, such as
requiring the minority scholarship to be awarded to the most
academically talented minority student who demonstrates financial
need, such an award would likely be constitutional. Likewise if the
donor selects the recipients directly. The issue is who controls the
selection process and the extent of this control. On the other hand,
the university would not be able to administer an award that
instructed the school to give a preference to qualified minority
students, since the decision to award the scholarship to a minority
student as opposed to a non-minority student would be left to the
school's discretion.
There is also some concern that managing a racially restricted scholarship
trust might invalidate a school's 501(c)(3) tax exempt status or need
to be treated as taxable income to the recipient. See N. IRC 4945,
Scholarship Grants to Individuals and the Validity of Racially Restricted Scholarship Trusts, 1982 EO CPE Text.
The form used to apply for 501(c)3 tax exempt status,
IRS Form 1023,
asks in Schedule B, Section II, Question 4 whether
In many cases the college can ask the courts to strike the racial
restrictions of existing funds. There is ample precedent for the use
of cy pres (follow the intent of the donor/testator when
literal compliance is impossible) to strike such
restrictions. Examples cited by the IRS summary include Lockwood
v. Killian, 179 Conn. 62 (1979); Smith v. Moore, 225 F. Supp. 434
(D.Va. 1963), remanded on other grounds, 343 F.2d 594 (4th Cir. 1965),
Coffee v. William Marsh Rice University, 408 S.W. 2d 269
(Tex. Civ. App. 1966); Wachovia Bank & Trust Co., N.A. v. Buchanan,
346 F. Supp 665 (D.D.C.), aff'd without opinion, 487 F.2d 1214
(D.C. Cir. 1973); Bank of Delaware v. Buckson, 255 A.2d 710
(Del. Ch. 1969); In re Will of Potter, 275 A.2d 574 (Del. Ch. 1970);
Trammell v. Elliott, 230 Ga. 841, 199 S.E. 2d 194 (1973); and Wooten
v. Fitz-Gerald, 440 S.W. 2d 719 (Tex. Civ. App. 1969). These court
cases found the racial restrictions to be impractical and an
impediment to the operation of the schools.
One could also argue that the creation of a tax exempt scholarship fund
establishes a kind of public trust, and that public policy can dictate
the manner in which the funds are expended. Restrictions that are
contrary to public policy can and should be invalidated.
In cases involving public colleges, the courts have also shown a
willingness to strike racial restrictions on constitutionality
grounds. Facilitating race-based scholarships would be clearly
incompatible with public policies that prohibit states from
discriminating on the basis of race, directly or indirectly.
See, for example, Pennsylvania v. Board of Directors, 353 U.S. 230 (1957).
Some state laws, such as California's Proposition 209, preclude
public universities from administering university aid programs to
increase diversity. Such universities have no choice but to eliminate
the program, transfer the funds to a generic scholarship program, or
change the selection criteria to no longer use race or
gender. Proposition 209 also considers private gifts and endowments to
be university funds, and so prohibits donor preferences. If the
university cannot ask the donor to modify the terms (or a court
refuses to permit the modification of the selection criteria when the
donor is no longer living), the university may have no choice but to
transfer the funds to an external non-profit organization. However, this
restriction on private gifts and endowments has yet to be tested in
the courts. It is likely that the university's fiduciary
responsibility to the donor has priority over Proposition 209 for any
funds received before August 28, 1997.
There is, however, another option that may work for many
institutions. This option is known as pooling. Specifically,
the institution would award funds to all students based on
non-race-specific criteria, such as GPA and financial need. Then the
school would match the students with the donor funds based on the
donor preferences, making up the difference with the university's own
funds. This allows the university to comply with the donor's
preferences without violating the constitutional
requirements. Practically speaking, this is what happens anyway for
most awards. The only problem would occur when the donor funds exceed
the financial need of available students, in which case the restricted
funds must remain unexpended. The school cannot allow the availability
of racially restricted funds to influence the number, amount or types
of awards it offers, since that would be tantamount to setting a
quota. (Specifically, the school cannot increase the overall number
of awards simply to avoid having unexpended funds left in the racially
restricted scholarship pool. The awarding philosophy must be
independent of any considerations arising from the existence of
racially restricted scholarships.) From this perspective, pooling
only works when the racially restricted scholarships account for a
small portion of the financial aid awarded by the school. If the
restricted awards account for too great a percentage of the school's
financial aid budget, they might subtly influence the school's award
selection process to increase the number or amount of awards to
members of the targeted race, indirectly contributing to racial
discrimination by the school.
The school should also ensure that its current awarding policy is
determined independent of any consideration of the racially restricted
scholarship funds. This includes any historical acknowledgment of the
availability of the restricted funds. To the extent that the school's
current awarding policy represents an incremental change to the prior
year's policy, the financial aid budget might encode an awareness of
the availability of the race-based scholarship funds, allowing the
funds to exert historical influences on current policy. The school
should sever any such historical ties by calculating the amount of the
financial aid budget based on objective principles without regard to
race.
The 4th District Court of Appeals' decision in
Podberesky v Kirwan
is relevant to this issue.
In addition,
Principle 4
and
Principle 5
of the US Department of Education's guidance are relevant to this discussion.
They indicate situations in which a
college could administer minority scholarships using its own or
donated funds.
Another approach is to have a completely separate and independent
legal entity administer the scholarship. The college cannot control
the entity in any way or be involved in the selection of
recipients. Some colleges, for example, have completely independent
alumni associations than can operate such scholarships. A good example
is the Alumni Association of the University of Michigan (a separate
legal entity that is independent of the college), which announced that
it would begin providing minority scholarships after the passage of
the Michigan Civil Rights Initiative (Proposal 2). If the college's
alumni association is not independent, then a new legal entity can be
established.
US Department of Education Guidance
The US Department of Education's current
position
is that it is permissible
for colleges and universities to consider race in making admissions
decisions and granting financial aid to promote diversity of the
student body. Specifically:
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.
Financial aid may be earmarked for students from low-income
families. Financial aid also may be earmarked for students from school
districts with high dropout rates, or students from single parent
families, or students from families in which few or no members have
attended college. None of these or other race-neutral ways of
identifying and providing aid to disadvantaged students present Title
VI problems. A college may use funds from any source to provide
financial aid to disadvantaged students.
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.
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. A finding of discrimination may be made by a court or
by an administrative agency -- such as the Department's Office for
Civil Rights. Such a finding may also be made by a State or local
legislative body, as long as the legislature has a strong basis in
evidence identifying discrimination within its jurisdiction for which
that remedial action is necessary.
In addition, a college may award financial aid on the basis of race or
national origin to remedy its past discrimination without a formal
finding of discrimination by a court or by an administrative or
legislative body. The college must be prepared to demonstrate to a
court or administrative agency that there is a strong basis in
evidence for concluding that the college's action was necessary to
remedy the effects of its past discrimination. If the award of
financial aid based on race or national origin is justified as a
remedy for past discrimination, the college may use funds from any
source, including unrestricted institutional funds and privately
donated funds restricted by the donor for aid based on race or
national origin.
A State may award financial aid on the basis of race or national
origin, under the preceding standards, if the aid is necessary to
overcome its own past discrimination or discrimination at colleges in
the State.
America is unique because it has forged one Nation from many people of
a remarkable number of different backgrounds. Many colleges seek to
create on campus an intellectual environment that reflects that
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.
There are several possible options for a college to promote its First
Amendment interest in diversity. First a college may, of course, use
its financial aid program to promote diversity by considering factors
other than race or national origin, such as geographic origin, diverse
experiences, or socioeconomic background. Second, a college may
consider race or national origin with other factors in awarding
financial aid if the aid is necessary to further the college's
interest in diversity. Third, a college may use race or national
origin as a condition of eligibility in awarding financial aid if this
use is narrowly tailored, or, in other words, if it is necessary to
further its interest in diversity and does not unduly restrict access
to financial aid for students who do not meet the race-based
eligibility criteria.
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.
If the use of race or national origin in awarding financial aid is
justified under this principle, the college may use funds from any
source.
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.
The provisions of Principles 3 and 4 apply to the use of race-targeted
privately donated funds by a college and may justify awarding these
funds on the basis of race or national origin if the college is
remedying its past discrimination pursuant to Principle 3 or
attempting to achieve a diverse student body pursuant to Principle
4. In addition, a college may use privately donated funds that are not
restricted by their donor on the basis of race or national origin to
make awards to disadvantaged students as described in Principle 1.
Characteristics of Acceptable Selection Mechanisms
The following characteristics apply to acceptable mechanisms for
selecting award recipients that involve race. These characteristics
are based on FinAid's lay reading of the relevant court opinions. As
such, they do not provide any kind of a safe harbor.
The following characteristics apply to acceptable mechanisms that
do not involve race:
It is also possible to rely on self-selection by potential applicants
to focus the applicant pool on a particular segment of the student
population. For example, one can encourage minority students to apply
by using photographs of minority students in the application materials
and program publicity.
Alternatives to Affirmative Action
Mechanisms that do not make reference to race or a proxy for race are
clearly constitutional. These mechanisms can be used for recruiting
and outreach, for college admissions, and for scholarships and
financial aid. Unfortunately, such mechanisms are much less
effective at maintaining racial diversity.
The most common "race-neutral" alternatives to racial preferences include:
These preferences can include preferences for individual students
(i.e., low-income students) or for students from particular geographic
regions or schools (i.e., schools in impoverished areas).
So long as the criteria do not seem arbitrarily selected to equate to
selecting the target population, they are probably safe from challenge.
For example, one can give a preference to all high schools from
Southern California, even if those schools tend to have higher
minority enrollment. On the other hand, one cannot give a preference
to a particular set of high schools, where the
schools were selected solely on the basis of their having a high
minority population. Yet if the selection of the schools is not
formulaic, but part of a careful review process, one can give a
preference to those schools even if the students at those schools are
drawn primarily from a minority population.
Similarly, giving a preference to a set of high
schools that do not normally serve as feeder schools for the college
or university is fine, even if those schools happen to have a large
population of minority students. (It is nevertheless a good idea to
review such preferences to ensure that they do not give the appearance
of being designed solely to provide a racial preference.)
The most commonly cited examples of race-neutral approaches are based
on class rank:
In addition, Florida and Pennsylvania both guarantee admission into a
state university for students who complete an associate degree at one
of the state's community colleges.
The US Department of Education's Office for Civil Rights published
a report entitled
Race-Neutral Alternatives in Postsecondary Education
in March 2003.
This report characterizes the class-rank alternatives mentioned above
as "positive" and "promising". Half of the report focuses on pipeline
leakage issues and half on race-neutral alternatives to affirmative action.
An updated version of the report, entitled
Achieving Diversity: Race-Neutral Alternatives in American Education
was published in March 2004.
Other studies, however, have found that the alternatives described in this report are
less effective at achieving diversity than previous affirmative action
programs that considered race.
For example, prior to Hopwood v. Texas, African-American
students represented 5.3% of the minority enrollment at the University
of Texas-Austin (UTA). Since 1998, Texas has guaranteed admission to the top
10% of students in each high school. African-American students now
represent 2.7% of the minority enrollment at UTA. A study entitled
Closing the Gap? Admissions & Enrollments at the Texas Public
Flagships Before and After Affirmative Action looked at the
percentage of overall enrollment from 1992-96 (pre-Hopwood) and
1997-2000 (post-Hopwood).
The study found that UTA enrollments by African-American
students dropped from 4% to 3.3% and Texas A&M enrollments dropped from
3.7% to 2.4%. Hispanic enrollments dropped from 15.8% to 13.7% and from
12.6% to 9.2% at UTA and Texas A&M, respectively.
The Civil Rights Project at Harvard University issued two reports
in February 2003 that had similar results. One compared the
California, Texas and Florida plans
while the other focused on
Florida's plan in greater detail.
The reports found that such guaranteed admissions plans have only
modest success at increasing diversity and fall short of the high
water mark set by affirmative action. In addition, the reports
attribute more of the success in regaining minority enrollments
to outreach programs that focus on high schools with strong minority
enrollments. (Such race-based recruitment programs might no longer be
constitutional, given the recent US Supreme Court rulings.)
They also noted that relative growth in the number of college-age minority
residents is partly responsible for the improvement. The improvement
at the most selective California and Florida schools was also limited,
since those states do not guarantee admission to the college or
university of the student's choice. The report authors also question
the effectiveness of the plans, since they showed that less than
200 Florida students who were in the top 20% wouldn't otherwise have
been admitted to a Florida public college or university and a
declining percentage of students in the top 20% are applying to a
state college or university.
Critics of the Harvard University report say that the focus should not
be on minority enrollments, but on enrollments from students at less
affluent and rural high schools.
Another flaw with percentage plans is they do not make sense for graduate and
professional school admissions, nor for schools that draw their
enrollments from more than one state. They do not necessarily achieve
the university's other goals (including non-racial diversity), nor do
they permit the kind of nuanced selection possible through individual
case-by-case evaluation. Such plans are also only
successful at promoting racial diversity in higher education to the
extent that the secondary school system is still segregated. (According
to a report from the
Harvard Civil Rights Project,
approximately
three-quarters of African-American and Hispanic students
attend high schools where minority students represent the
majority of the student body.)
Other race neutral plans, such as lottery systems or systems that
deemphasize GPA and academic test scores, run counter to a
justifiable interest in academic excellence. A mechanism for achieving
diversity cannot come at the cost of academic selectivity or the
school's reputation for excellence. (It is a common myth about
affirmative action that schools would give preferences to unqualified
candidates. Few schools, if any, would admit an unqualified student
merely to achieve diversity goals. The students were always
comparable, although the minority students might have had slightly
lower academic test scores. So race-neutral alternatives that would
result in unqualified students being admitted are not viable alternatives.)
Schools should make a good faith effort to consider race-neutral
alternatives, but are not obligated to use a race-neutral alternative
that does not achieve their diversity goals or which impairs
their other goals, such as maintaining the academic quality of
admitted students.
Often, a key differentiator between minority and non-minority students
is the belief that college is possible. Accordingly, running intense
recruiting efforts to encourage students to pursue a college education
will have more of an impact on increasing enrollments among
minority students and socio-economically disadvantaged students. Such
programs do not need to be restricted by race or sex, as they will often
self-select to those students who can benefit the most.
The College Board, ACT and ETS could help colleges maintain diversity by
eliminating types of questions on academic tests that select against
minority students because of cultural bias. This would yield a
race-neutral measure of academic talent, leveling the playing field.
A report by Sigal Alon of Tel Aviv University and Marta Tienda of
Princeton University in the August 2007 issue of
The American Sociological Review (ASR)
presents research demonstrating that
overweighting of SAT scores in admissions decisions increases the need
for affirmative action. The authors argue that reducing the reliance
on the SAT could result in improved diversity without affecting
student quality.
Aside from the class-rank plans, most of the other efforts focus on
recruiting, such as colleges running recruiting centers in
underrepresented geographic areas, forming partnerships with high
schools to help students prepare for college, and early awareness
efforts to encourage students to think about college as a real
possibility early in their high school careers.
Proxies for Race
There are a variety of applicant characteristics that are in a
one-for-one correspondence with race. Award programs based on such a
race proxy are legal only to the extent that they are not clearly
intended to circumvent the law. A key test is whether membership in
the group is selective or automatic. Another key test is whether race
is essential to the program or merely associated with it.
For example, if a college had an award for a member of the Black
Graduate Students Association, whether it was in violation of the law
would depend on whether all African-American graduate students were
automatically members of the group and whether non-African-American
students could join the group. Likewise, an award for a student
pursuing a major in Women's Studies is legal. The fact that most of
the students who pursue such a major are female is irrelevant.
The following examples are most likely legal.
One can also select for race by using majors that have no apparent
connection to race. For example, a scholarship for equine studies or
horseback riding will self-select for Caucasian female students, while
a scholarship for Petroleum Engineering, Urban Affairs,
Entrepreneurship, Radio and Television Broadcasting, or Public
Administration will select heavily for African-American students.
On the other hand, an award that involves a race or gender based
prerequisite, such as the Miss America scholarship pageant, is not
constitutional. Only women are eligible to apply for such a scholarship.
Private organizations can sponsor such programs, but
colleges and universities cannot be involved in the administration of
such programs. (The prohibition against discrimination on the basis of
gender includes an exception in
Title IX Section 1681(a)(9) of the Higher Education Amendments of 1972
for beauty pageants. There are also exceptions for fraternities and
sororities and boy scouts and girl scouts. If not for these special
exemptions, colleges receiving federal funds would not be able to
award scholarships as part of beauty pageants due to the restrictions
in Title I of the Higher Education Act of 1965.)
Manipulating the membership of the selection committee is also
potentially problematic. On the other hand, few faculty ever volunteer
to participate in award selection committees, so to the extent that
the school allows anybody who volunteers to participate, it is
acceptable to permit such self-selection to skew the selection
process.
History of Legal Decisions
The Ninth US Circuit Court of Appeals ruled 7-4 that race may be used as a
tie-breaking factor in high school admissions. When a Seattle public
high school has more applicants than spaces, it uses a series of
tiebreaking factors to differentiate among applicants: first, students
with siblings in the school are admitted; second, enough students are
admitted to bring the
racial composition of the school's student body within 15% of the
School District's demographics;
third, student's who live closest to the school are admitted; and
fourth, the remaining slots are allocated by a lottery. The tiebreaker
was used only for admissions to the 9th grade.
The school
district demonstrated compelling educational and social benefits from
racial diversity, such as improved critical thinking, higher levels of
student achievement, a reduction in
prejudice, increased awareness of cultural and social differences, and improvements in race relations.
The weakest aspect of the court's ruling is its determination that the
15% variance is not a quota. Yet the school district used the
requirement as a soft goal as opposed to a rigid ratio. For example, the school district would allow
the variance to persist if all students of the underrepresented race
in the applicant pool had been exhausted, discontinued it beyond the
9th grade, allowed a broad target range, and the ratio of white to
non-white students varied "from school to school and from year to year".
This ruling is likely to be upheld by the US Supreme Court.
The State Supreme Court had previous ruled in 2003 that
Initiative 200 does not prohibit the use of race as a tiebreaker in admissions.
The National Wrestling Coaches Association (NWCA) sued the US
Department of Education, alleging that Title IX discriminates against
male athletes. In particular, NWCA maintained that the proportionality
provision of the athletics three-part opportunities test created a
quota system that caused schools to cut men's wrestling teams.
The US District Court for the District of Columbia dismissed the case
on June 11, 2003. Judge Emmet Sullivan's opinion indicated that NWCA
failed to demonstrate that Title IX caused the men's teams to be
cut. He noted that schools have significant flexibility in how they
structure their athletic programs, and the teams might not be
reinstated even if he had ruled in NWCA's favor. The US Court of
Appeals for the DC Circuit upheld the ruling on May 14, 2004.
This case concerned the state of Washington's requirement that the
state's Promise Scholarship Program may not be used to pursue a
devotional theology degree. This case focused on the 1st amendment's
free exercise and establishment clauses and not on the 14th amendment.
The US Supreme Court found the state of Washington's prohibition does
not violate the free exercise clause and hence is constitutional. In
particular, the court found that prohibitions against the use of
public funds to support religion are constitutional, based on "play in
the joints" between the establishment and free exercise clauses.
The Higher Education Act's prohibition against discrimination on the
basis of religion does not apply because this case involved state
funds, not federal funds.
The University of Michigan law school used race as one of many factors
in a holistic admissions review process. The law school used a
flexible assessment of each candidate's talents and experiences, and
specifically evaluated the potential to contribute to the learning of
their peers. Race was considered as one of many factors in the latter
category. The US Supreme Court found that this process does not
violate the US Constitution's 14th amendment equal protection guarantee.
The US Supreme Court also rejected the Bush administration's arguments
that colleges must exhaust all race-neutral means for achieving diversity.
The court also stated that narrow tailoring does not "mandate that
a university choose between maintaining a reputation for excellence or
fulfilling a commitment to provide educational opportunities to
members of all racial groups".
The University of Michigan's undergraduate admissions process used a
point system, where points were awarded according to several criteria,
such as high school GPA, test scores, and legacy
status. Applicants who were underrepresented minorities received a
bonus of 20 points solely on the basis of race. The racial bonus was
the decisive factor for every minimally qualified minority applicant,
and there was no individualized consideration in the awarding of the
points. The bonus for race was also much higher than the bonus available
for other diversity contributions, such as leadership, geographic
diversity, and personal achievement and did not allow one to draw
non-racial distinctions among underrepresented minorities.
This policy treated whole groups of candidates differently, based
solely on their race, and as such was not narrowly tailored to meet
the diversity objectives.
The US Supreme Court found this system to be unconstitutional, and
specifically rejected the school's argument that the volume of
applications make it impractical to use a holistic review process.
Note that the University of Michigan previously used a grid system that sorted
applicants by grades, test scores, and race from 1995 to 1998. This
system was found to be unconstitutional by US District Judge Patrick
Duggan in December 2000. The university switched to the point-based
system mentioned above in 1998.
The University of Georgia used race in selecting 15 percent of the
incoming class. Non-white applicants received a points bonus
equivalent to 6 percent of the maximum score. The 11th Circuit Court
of Appeals ruled against the university. This ruling applies to Alabama,
Florida, and Georgia. Georgia chose not to appeal
to the US Supreme Court, instead waiting for a decision in the
Michigan case. The US Supreme Court ruling in Gratz v. Bollinger
effectively finds that the University of Georgia admissions policy was
unconstitutional.
According to the Chronicle of Higher Education, the university
discontinued its 1999 policy of giving a preference to male students
in the borderline applicant pool in early 2000.
In a separate matter, the University of Georgia reached a settlement
on September 1, 2000 with ten applicants for undergraduate admission
who sued the school for race and gender discrimination. Under the
settlement the university agreed to not use race in awarding
scholarships to undergraduate students.
The University of Washington law school ranked students by GPA and
LSAT scores, then considered other qualifications, including potential
contributions to diversity. They did not use a specific formula.
The 9th Circuit Court of Appeals ruled in the university's favor,
finding that Justice Powell's opinion did indeed represent the
majority opinion. The US Supreme Court declined to consider an appeal
of the 9th Circuit's opinion in May 2001. Washington voters amended
the state constitution in 1998 to ban the use of racial preferences,
rendering the issue moot. The 9th Circuit Court's opinion is
consistent with the subsequent US Supreme Court rulings in 2003.
The Center for Individual Rights continued to pursue the case,
focusing on the admissions policies that were in effect between 1994
and 1996 before the state constitution was amended. The 9th Circuit
Court of Appeals ruled
in the university's favor, and the US Supreme Court declined to
consider an appeal in October 2005.
The US 5th Circuit Court of Appeals ruled against the University of Texas,
prohibiting the use of race or ethnicity in college admissions,
recruitment, financial aid and retention. This ruling applied to the
states of Texas, Louisiana, and Mississippi. The court questioned
whether Bakke permitted the use of race or ethnicity in college
admissions, and even entirely rejected the use of Bakke as precedent
based on more recent rulings of the US Supreme Court in
cases concerning the use of race in government employment and
contracting. The court also questioned whether racial diversity
promotes educational diversity. The US Supreme Court decided to not
hear the Texas case because the University of Texas had already
stopped using race in admissions and financial aid. (Public colleges
in Texas
stopped using race in 1996 after the state attorney general issued an
opinion that race cannot be used in admissions and financial aid. Race
could, however, continue to be considered in recruitment efforts.)
The 5th Circuit Court's decision no longer applies given the US Supreme Court's
June 2003 reaffirmation of Bakke and endorsement of Justice Powell's
view that "student body diversity is a compelling state interest that
can justify using race in university admissions".
The University of Maryland at College Park established a merit
scholarship program for which only African American students were eligible.
The academic standards required for this scholarship program were less
rigorous than those for a similar university merit scholarship program
that was not restricted by race.
The 4th District Court of Appeals found that the minority scholarship
program was unconstitutional because the university did not provide sufficient
proof of the need to limit the scholarship to one race only.
The court found that in order for a scholarship to be seen as remedial
for past discriminatory policies, the existence of such prejudice must
be clearly evident. The US Supreme Court declined to hear the
University's appeal. This decision affects schools in Maryland, North
Carolina, South Carolina, Virginia and West Virginia.
This decision merely followed existing Supreme Court precedent,
finding that the nature and weight of the University's evidence did
not meet the existing criteria for establishing a race-based scholarship.
This does not alter the existing precedents that hold that colleges
may established race-based scholarships to remedy the present effects
of prior discrimination or to enhance diversity, provided that the
scholarships are narrowly tailored to achieve that goal.
(This case focused on race exclusive scholarships. The US Supreme
Court rulings discussed race conscious or race sensitive
selection criteria. The latter, however, necessarily also applies to
race exclusive programs.)
This decision struck down the use of quotas and set-asides in college admissions.
Race cannot be the sole basis of a decision in college admissions
decisions, but may be used as one of many factors considered for the
purpose of promoting diversity in higher education. (Justice Lewis
F. Powell Jr. wrote the opinion that indicated that race could be
considered to achieve diversity. His opinion was joined in part by a
majority of the justices, but Hopwood v. Texas subsequently questioned
whether he spoke for the court's majority. The US Supreme Court's
opinion in Grutter v. Bollinger endorsed Justice Powell's opinion.)
The US Supreme Court issued a unanimous decision that the "separate
but equal" doctrine governing public education, whereby minority
students were assigned to separate schools, violated the 14th
amendment to the US Constitution.
Definitions
Point systems are equivalent to quotas in effect because the points
assigned to race are usually decisive in borderline candidates and
because the number of points assigned to race is often chosen
specifically to admit a particular number of candidates of the
underrepresented race. There is often a linear or step function
relationship between the number of points assigned to race and the
number of minority students admitted.
At many institutions the number of points
assigned to a minority student is the equivalent of adding one grade
point to the student's GPA or eliminating the impact of standardized
academic tests.
Generally speaking, colleges do not want a homogeneous student body composed
of well rounded individuals who are all alike, but rather a
heterogeneous student body that is composed of distinct individuals who
are unlike each other in various ways. In a diverse student body,
there is enough common ground to permit discourse, but also enough
variation to promote differences of opinion. Race manifests itself in
terms of distinct cultural attitudes and experiences that enhance the
educational experience of all students. It is precisely because there
are differences in the way different races perceive society that a
good mix of cultures can yield a healthy campus environment.
But race is not the only source of diversity, nor should diversity be
limited to a particular set of races. The focus should not be on
whether a particular race is underrepresented, but whether there is
enough of a critical mass of the given race
on campus to promote cohesion and
effective interaction with other social groups. Likewise, there should
be diversity along other dimensions, including religion, hobbies,
nation of origin, geographic region, skills, athletic ability,
academic ability, public
service activity, work experience, economic background, age and every
other possible student characteristic. In other words, it is not the
individual that should be well rounded, but the student body that
should be well rounded.
Unfortunately, the word 'diversity' has been so overused that it has
become a de facto synonym for a racial composition that mimics that of society
at large.
The mechanism
cannot achieve the goal by isolating a particular category of applicants from
competing with all other applicants (i.e., a separate admissions
track). Quotas are not narrowly tailored, nor are programs that
automatically give all candidates of a given race extra points.
Race may not be the defining feature that results in an admission, but
rather one of several features that together contribute to an
admissions decision. Each applicant should be considered as an
individual on a case by case basis. The US Supreme Court suggests that
systems that automatically rank applicants and for which race is the
deciding factor are not narrowly tailored.
Although there is no specific number of percentage that constitutes
critical mass, comparing in-group size to out-group size or comparing
the relative sizes of different demographic groups can provide an
indication as to whether critical mass has been reached. Consider two
hypothetical and extreme examples:
What makes this analysis work is the fact that it defines diversity in
terms of the educational benefits (i.e., the intimidation and
isolation of racial minorities in small classroom settings typical of
the school and sufficient presence of the minority students to promote
a diversity of viewpoints and ideas).
Related Sites
The following sites are in favor of affirmative action:
The following sites are not in favor of affirmative action:
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