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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:

  • Negative Examples: quotas, automated or mechanical point-based systems (especially those that award a predetermined and fixed bonus for being a member of the target race), use of race as the deciding or dominant characteristic in an admissions decision.

  • Positive Examples: narrowly tailored holistic approaches that evaluate candidates on a case-by-case individualized basis and which consider race as one of many factors through which a candidate may contribute to diversity and the university's educational environment.

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.

  • California: California voters passed Proposition 209 in November 1996 (54% to 46%). (See also the state attorney general's official summary.) Proposition 209 bans the use of race in college admissions and financial aid at California state colleges and universities through an amendment to the state constitution. The key clause of Proposition 209 states:
    The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
    Proposition 209 permits colleges to continue to administer awards if the use of race or gender is required in order to receive Federal funds. This permits California colleges to continue to accept BIA grants and the NSF Minority Fellowships.

  • Washington. Washington State voters passed Initiative 200 (I-200, the Washington Civil Rights Act) in November 1998 (58% to 42%), causing the University of Washington to eliminate consideration of race, ethnicity and gender from the college admissions process.

  • Florida. Florida Government Jeb Bush signed an executive order in November 1999 eliminating the use of race and ethnicity in college admissions to the state university system. Instead, the state adopted the "Talented 20 Program" which guarantees admission to students graduating in the top 20 percent of their classes and completing a specific minimum high-school curriculum.

  • Michigan. Michigan voters passed Proposal 2 (06-2, the Michigan Civil Rights Initiative) in November 2006 (58% to 42%), banning the use of race, ethnicity and gender preferences in public college education, state employment and public contracting. The language is sufficiently broad as to affect both college admissions and financial aid: "... public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting ...". (Similar language applies to the state, its political subdivisions and instrumentalities.) The amendment to the state constitution went into effect on December 23, 2006.

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

Does or will the organization (or any department or division within it) discriminate in any way on the basis of race with respect to admissions; use of facilities or exercise of student privileges; faculty or administrative staff; or scholarship or loan programs? If "Yes," for any of the above, explain fully.

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:

This guidance has not yet been updated in light of the recent US Supreme Court decisions, but is unlikely to change as a result. It was last updated in 1994.

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.

  • One of many, non-decisive factors. Race should be one of many factors that determines whether an award is made. It should generally not be the single deciding factor nor the dominant factor, although it can tip the balance in a student's favor in individual cases. In Gratz, the US Supreme Court objected because the formulaic nature of the admissions policy made race decisive, even for minimally qualified applicants. It substituted a racial preference for competition on the basis of qualifications. If race is non-decisive, or is used as a tiebreaker among equally qualified applicants, it is permissible.

  • Diversity means more than just race. Diversity is not a synonym for racial preferences, and many other qualifications, experiences and characteristics relating to diversity should be considered when trying to achieve a heterogeneous student body. Just because a student is of a particular race does not mean that the student will contribute a different viewpoint or otherwise enhance the educational experience of other students. Sources of diversity besides race include overcoming personal adversity, participation in community service, living abroad, and speaking foreign languages. (Even a white student who grew up in a predominantly minority neighborhood could potentially be considered as contributing to diversity.) All factors that relate to diversity should be considered, not just those relating to race. The court stated that these factors should be given the "same footing for consideration, but not necessarily the same weight".

  • Automated, mechanical systems may not consider race. Automated systems that award a preference to a particular race as a class are not acceptable. In particular, automated systems that award points to an individual based on race or which establish quotas for a particular race or which use a different threshold for a particular race are not acceptable.

  • Holistic individual review may consider race. Instead, use a holistic approach that reviews each applicant individually and evaluates the ability of that individual to contribute to the university environment. In such a system, the people evaluating the applicant may consider race when rendering a decision. In other words, one may consider whether race should make a difference on a case by case basis.

  • Identical scores when race is the only variable. The admissions and financial aid policies must not treat whole groups of students differently based solely on their race. Systems that award points based on race are not acceptable. Likewise, systems that normalize test scores based solely on race are not constitutional. You should be able to create two identical profiles that differ only in race and have them scored the same.

  • Single budget for all races. There must not be a separate budget for students of a particular race.

  • Award amounts independent of race. The amount of the financial award should not be based on race, but on other factors, such as financial need, or a fixed amount that is the same for all races.

  • Annual evaluation of impact on non-minority students. Verify annually that the affirmative action process does not place an undue burden on students not of the given race. In particular, the implicit change in eligibility for non-minority students should not be statistically significant. Ideally, it should fall within the normal year-to-year variation in admissions rates. For example, the impact should be isolated to students who are in the "gray area" and should not affect students who are in the "definite admit region", nor should it disproportionately affect non-minority students in the gray area. A system that ranked gray area students predominantly by race or sex is not constitutional.

  • Targeted recruiting, retention and counseling is acceptable. Special efforts to recruit minority applicants, such as publications geared toward minority applicants, are acceptable. Special efforts to retain minority students are acceptable, provided that they are expanded to include all at-risk students. The school has a compelling interest in providing counseling materials tailored to special groups. The school should make the publications available to any student who asks for them (i.e., after all, even men take classes in Women's Studies) and should not neglect any other special group that needs targeted counseling materials.

  • Diversity of student body must be evaluated annually. Diversity may only be considered in college admissions and financial aid when the student population is not currently diverse. The diversity of the student population should be evaluated at the same frequency at which it changes (i.e., annually). Ultimately, the diversity of the student population will become self-sustaining when it reaches critical mass.

  • Ranking and comparative approaches may not consider race. A system that considers applicants individually, deciding whether to admit the student solely on the basis of the information in the application and associated materials, may consider race. A system that ranks the students, implicitly comparing one student with another, may not consider race, since race would thereby be a deciding factor, all else being equal. This suggests that a policy in which all students were ranked without regard to race, and the best students admitted, with the remaining gray area candidates subjected to individual holistic review that did consider race, would be constitutional. Likewise a system that combined an automated scoring mechanism with individualized consideration might be constitutional, provided that the use of race in the automated scoring mechanism was not a decisive or dominant factor in the admissions decision. "Best students" should be defined in terms of the credentials and not in terms of a specific percentage of the applicant pool or incoming class.

  • Racial preferences should not be step functions. The consideration of race should vary from candidate to candidate, depending on the complete collection of qualifications and whether the candidate's racial background brings added value to the application. Race should not play a role in all minority applicants. A key flaw in past point systems is the fact that they assigned race points on an all or nothing basis and awarded these points to all students of the given race. A better system would have awarded points on a graduated scale, corresponding to the candidate's qualifications and potential contribution to the university community. Under such a system, some minority students would receive no points, despite their racial background, and some non-minority students might receive full diversity points. Unfortunately, it is unclear whether such a formula would survived the Supreme Court's objection to the use of mechanical approaches to college admissions.

  • Remedies for discrimination should be focused. When race is considered to remedy past discrimination, as opposed to enhancing diversity, it should be focused on remedying actual discrimination at the school and not more generally in society at large. The remedy should also correspond to the degree of discrimination and continue only for as long as necessary to compensate for the discrimination. (Likewise, the consideration of race to promote diversity should only continue for as long as necessary to achieve diversity, and should end when diversity has been achieved. This means that the use of race in admissions and financial aid decisions should be reviewed periodically to determine whether it is still necessary. The US Supreme Court stated that it expects that racial preferences will no longer be necessary to achieve diversity 25 years from now.)

  • Numeric and percentage goals prohibited. Racial preferences cannot be considered in the context of a goal for a given number or percentage of students for each race. In particular, if the school tracks the demographic composition of the incoming class, such reports should not be provided to the individuals making admissions decisions, nor should they be used to influence those decisions in any way.

The following characteristics apply to acceptable mechanisms that do not involve race:

  • Systems that adjust for disadvantaged opportunities are acceptable. For example, if the school's admissions policy awards points for taking AP classes, but no AP classes are available at the applicant's school, it is acceptable to adjust for this in a uniform, non-race-specific fashion (i.e., eliminating the criterion and renormalizing or substituting an average value).

  • Race-neutral alternatives that do not make reference to race, such as awarding scholarships to the top 5% of each graduating high school class in the state, are acceptable.

  • Consideration of non-race-specific criteria, such as socio-economic disadvantages, is acceptable. This can include considering whether the candidate is in the lowest income quartile, whether the candidate's parents are disabled, or whether the candidate is the primary wage-earner for his/her family.

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:

  • Preferences on the basis of socio-economic status (i.e., expanding need-based financial aid or admitting more students with socio-economic disadvantages).
  • Preferences on the basis of class rank (i.e., students who finish in the top 10% of their graduating class).
  • Preferences for students from schools that do not typically send many graduates on to college or students from schools in geographic regions where few people have attained college degrees.
  • Preferences for students at high schools or from geographic regions that rarely send their students to the indicated college or university.
  • Preferences for first-generation college students.
  • Focusing efforts to increase retention and graduation rates of at-risk students.
  • Normalizing test scores and similar academic measures according to retention and graduation rates for previous students from the same geographic region or high school. This can compensate for cultural bias in the tests.

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:

  • Texas Top 10 Percent Plan. This plan guarantees high school seniors at every Texas state accredited public and private high school who graduate in the top 10% of their class admission to the University of Texas campus of their choice. In addition, the University of Texas Law School also guarantees admission to the top 5% of graduates at five specific colleges located in southern Texas.

  • Florida Talented 20 Plan. This plan guarantees Florida public high school seniors who graduate within the top 20% of their class admission to the state university system. Students are not guaranteed their choice of institution, however, only that they will be admitted to a state institution. (The University of Florida does guarantee admission to the top 5 percent of public high school graduates.)

  • California 4 Percent Plan. This plan guarantees high school seniors from California high schools who graduate within the top 4% of their class and who complete 11 units of college preparatory work by the end of the junior year admission into the University of California system. California also guarantees admission to any applicant in the top 12.5% statewide.

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.

  • Awards for victims of specific race- or gender-linked diseases or circumstances.
    • Sickle Cell Anemia
    • Breast Cancer Survivors
    • Testicular Cancer Survivors or Prostate Cancer Survivors
    • Rape Survivors

  • Awards for members of specific religious groups. African-American students are more likely to be Baptists than they are to be Mormons or Catholics.

  • Awards for members of specific sororities, fraternities and social groups, such as those established by alumni of those groups.

  • Awards based on student plans to serve in an underrepresented community or conduct research on underrepresented communities.

  • Awards for specific majors, such as Women's Study Programs and Black Studies Programs.

    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.

  • Awards for students from particular geographic areas. A scholarship for students from Washington, DC, Georgia, Maryland, Louisiana, Mississippi and South Carolina, will tend to select 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

  • Parents Involved in Community Schools v Seattle School District (October 20, 2005 - 01-35450)

    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.

  • National Wrestling Coaches Association v. US Department of Education (June 11, 2003 - 02-0072)

    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.

  • Locke v. Davey (February 25, 2004 - 02-1315)

    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.

  • Grutter v. Bollinger (June 23, 2003 - 02-516)

    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".

  • Gratz v. Bollinger (June 23, 2003 - 02-241)

    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.

  • Johnson v. Board of Regents of the University of Georgia (August 2001)

    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.

  • Katuria E. Smith v. University of Washington Law School (December 2000)

    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.

  • Hopwood v. Texas (March 1996)

    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".

  • Podberesky v. Kirwan (1994, 1995, and 2001)

    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.)

  • Regents of Univ. of California v. Bakke (1978, 438 US 265)

    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.)

  • Brown v. Board of Education (May 17, 1954, 347 US 483)

    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.

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