Session 36
AFFIRMATIVE ACTION IN ADMISSIONS
June 20-23, 2001
Elizabeth M. Barry
The University of Michigan
Ann Arbor, MI
I.
Recent Legal Developments in Affirmative Action in Education
A. Alexander et. al. v. Sandoval, No. 99-1908, 2001 WL 408983 (U.S. Sup.
Ct. April 24, 2001)
In this case challenging a state’s decision to administer driver license
examinations only in English, the Supreme Court ruled that the
regulations issued under Title VI which allow for disparate impact claims
may not be enforced through a private cause of action. While of limited
importance in the reverse discrimination suits challenging race-conscious
practices, this ruling will presumably limit the ability of minority
plaintiffs to sue – like in the Castenda suit discussed in this outline – over
admissions criteria like standardized test scores, alumni status, etc.
B. Texas, et al. v. LeSage, 120 S. Ct. 467 (1999), 145 L.Ed. 2d 347
This case involved a white applicant to a PhD counseling psychology
program who sought damages for discrimination due to the program’s
race conscious admissions policy. The Supreme Court held that if the
plaintiff would have been rejected under a race-neutral admissions
policy, he has no cognizable injury warranting relief under 42 U.S.C.
§1983. If, however, the plaintiff had sought “forward looking relief,” i.e.
to be admitted to the program, he would not have to establish that he
would have been admitted under a race-neutral program.
C. Southworth v. Grebe, 529 U.S. 217 (2000); 157 F.3d 1124 (7th Cir. 1998)
This case involved a First Amendment challenge to the mandatory
student fee policy at the University of Wisconsin. The question before
the Supreme Court on appeal from the Seventh Circuit was whether a
policy that requires students to pay a fee, which ultimately goes to
support “political” and other such organizations, is consistent with the
First Amendment. The Supreme Court ruled that the mandatory student
fee scheme was constitutional. In doing so, the Court made reference to
the First Amendment rights of universities to take steps -- here, the
student fee policy -- to foster their educational missions. This is an
underlying concept for the Supreme Court’s holding in the Bakke case.
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D. Brewer v. West Irondequoit Central School District, 212 F. 3d. 738 (2nd
Cir. 2000)
This case involved a challenge to an urban-suburban school district
transfer policy. In order to prevent “racial isolation” only minority
students were allowed to transfer from urban to suburban schools and
only white students were allowed to transfer from suburban to urban
schools. The plaintiff, a white student who wanted to transfer to a
suburban school, claimed that this policy violated the 14th Amendment
and obtained a preliminary injunction against enforcement of the policy
from the District Court. The Court of Appeals vacated the injunction and
remanded for a trial on the merits based on its view that the plaintiff
could not clearly demonstrate a likelihood of success on the merits. The
court held that in light of: (1) previous cases of the 2nd circuit which held
that reducing the de facto segregation could be a compelling
governmental interest; (2) the absence of a Supreme Court decision
dealing with permissible race-based justifications in the educational
context; and (3) the lack of a clear rule regarding permissible
justifications for race-based classifications generally, it was not “clear”
that “preventing racial isolation” was not a constitutional justification for
the transfer policy.
E. Wessman v. Gittens, 160 F. 3rd 790 (1st Cir. 1998)
On appeal from the District Court (Wessman v. Boston School
Committee, 996 F. Supp. 120 (D. Mass 1998)), the First Circuit decided
that the admissions programs at the competitive public high schools in
Boston are unconstitutional. The Court assumed, without deciding, that
Bakke stands for the proposition that educational diversity can be a
compelling governmental interest to justify race sensitive admissions
programs and that Bakke remains good law. But it went on to find that
the admissions guidelines “appear to be less a means of attaining
diversity in any constitutionally relevant sense and more a means for
racial balancing.” The admissions guidelines called for half of the seats
in an entering class to be filled in proportion to the racial/ethnic mix of
the qualified applicant pool. Under pressure from some civil rights
groups, the School Committee decided not to appeal the First Circuit’s
decision.
F. Tuttle v. Arlington County School Board, 195 F. 3d 698 (4th Cir. 1999)
(decision of the Court for the Eastern District of Virginia is unpublished)
In April, 1998, the District Court struck down the admissions program to
Arlington Traditional School, an alternative public elementary school in
Arlington, Virginia. Without allowing the School Board to present
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evidence on the educational value of diversity, the Court ruled that
educational diversity is not a compelling governmental interest: “Even if
the court accepts defendants’ contention that diverse student enrollments
are educationally preferable, the court cannot conclude that the goal of
diversity excuses racial discrimination.” The admissions program
compared the pool of applicants to the district’s overall student
population with respect to family income, race/ethnicity and whether
English was a first language. Depending on how different the
composition of the pool was from the population, the admissions lottery
would be weighted for those characteristics. The Fourth Circuit Court of
Appeals assumed (but did not decide) that diversity is a compelling
interest but held that the policy was not narrowly tailored to that interest.
The Appeals Court further ruled that the District Court abused its
discretion when it ordered the School Board to adopt a specific
admissions policy. The School Board filed a petition for a writ of
certiorari to Supreme Court which was denied on March 28, 2000.
G. Eisenberg v. Montgomery County Public Schools, et al.,197 F.3d 123 (4th
Cir. 1999), 19 F. Supp. 2d 449 (D. Md. 1999)
A white non-Hispanic first grade student was denied admission to
Rosemary Hills Elementary, a magnet school in Montgomery County,
Maryland. The denial was based upon the negative impact the student’s
departure would have on the “diversity profile” of the school to be exited.
The District Court denied the child’s parents request for declaratory and
injunctive relief. The Court of Appeals chose to leave “unresolved” the
question of whether diversity is a compelling governmental interest.
However, the Court concluded that the school’s policy was not narrowly
tailored because it was aimed at racial balancing; it explicitly compared
the diversity in the school to that of the population. Montgomery County
filed a petition for certiorari to the Supreme Court which was denied on
March 21, 2000.
H. Gratz v Bollinger, et. al., 122 F.Supp.2d 811 (E.D. Mich. 2000)
This case involves a class action challenge to the University of
Michigan’s race-conscious admissions program to its largest
undergraduate college. Named plaintiffs Jennifer Gratz and Patrick
Hamacher were unsuccessful white applicants to that college in 1995 and
1997, respectively, and the Center for Individual Rights (“CIR”) sued the
University on their behalf in October, 1997. They argue that the program
violates the 14th Amendment and Title VI of the Civil Rights Act
because: (a) it considers race; and (b) it gives race too much “weight”.
The University argues that: (a) its program is justified by the pursuit of
educational benefits of diversity; and (b) the program is “narrowly
tailored” to pursue that interest. In August, 1999, the Sixth Circuit Court
of Appeals allowed a group of high school students and citizens to
intervene in the case to argue that the University’s program was needed
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to remedy past and present discrimination. On December 13, 2000, the
District Court ruled on summary judgment in favor of the University
upholding its current admissions policy and finding that based on the
“substantial” evidence that the University had submitted, diversity was a
compelling governmental interest justifying its policy. The court found
unconstitutional prior iterations of the University’s program which,
according to the Court, operated as the “functional equivalent of a
quota.” For all years in question, the court found against liability for the
officials in their individual capacities. In a separate opinion, the Court
rejected the arguments of the intervenors. All parties have appealed to
the Sixth Circuit Court of Appeals. CIR has appealed the ruling about
the current policy and the University has cross-appealed on the ruling
about the prior policy. Briefing will be complete in the summer of 2001;
oral argument is set for late October, 2001.
I. Grutter v Bollinger, et. al., No. 97-75928, 2001 WL 315715 (E.D. Mich.
April 3, 2001)
This case involves a class action challenge to the University of
Michigan’s Law School’s race-conscious admissions program. Named
plaintiff Barbara Grutter was an unsuccessful white applicant to the Law
School for the Fall 1997 class. The arguments of the plaintiff, University
and intervenors are essentially the same as in Gratz (above). After a
limited bench trial, the Court held in late March, 2001 that: (1) the
educational benefits of diversity are not of a compelling state interest;
and (2) even if they were, the Law School’s policy was not “narrowly
tailored” to the interest in diversity. The judge’s key finding on “narrow
tailoring” was that the Law School aimed to enroll a “critical mass” of
minority students. The Court called that aim “the functional equivalent of
a quota.” The Court entered an injunction prohibiting the Law School to
continue its policy but the injunction was stayed by the Sixth Circuit
Court of Appeals. Same basic schedule on appeal as in Gratz (above).
J. Hopwood v. Texas, 78 F. 3rd 932 (5th Cir.), cert. denied 116 S. Ct. 2581
(1996), on remand, 999 F. Supp. 872 (W.D. Tex. 1998), aff’d in part,
rev’d in part, 236 F.3d 256 (5th Cir. 2000)
After the Fifth Circuit struck down the race-sensitive admissions program
at the University of Texas Law School, the case was remanded to the
district court which determined that even under a fully “color-blind”
system, the plaintiffs would not have been accepted to the law school and
found that they had not proved any damages. They were awarded
nominal damages, attorney’s costs and fees. The court also enjoined the
law school “from taking into consideration racial preferences in the
selection of those individuals to be admitted as students at the University
of Texas School of Law…” On the basis that this injunction is arguably
broader than the ruling of the Fifth Circuit and expressly conflicts with
the holding in Bakke, Texas appealed the remand decision and sought en
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banc review in the Fifth Circuit. The plaintiffs cross-appealed regarding
the amount of damages and attorney’s fees. En banc review was denied
and a new panel decided the appeal. The so-called “Hopwood III”
decision was issued December 21, 2000. The court reversed the district
court’s injunction and affirmed the district court’s award of nominal
damages and attorney’s fees. The panel remanded the case back to the
district court for findings in support of the injunction and for a narrowing
of the injunction consistent with the holding in Bakke. In April, 2001
Texas petitioned the Supreme Court to review the case.
K. Hunter v. The Regents of the University of California, 190 F. 3d 1061
(9th Cir. 1999)
The University of California’s admission policy to a laboratory
elementary school was challenged on the grounds it violated the equal
protection clause. The elementary school’s purpose is to research issues
pertinent to the education and social development of children in
multicultural urban settings. The results are then shared with the state’s
public school teachers. To accomplish the research aims, the University
seeks to enroll a diverse student body and therefore takes race, gender,
ethnicity, and family income into account in admissions. The Court of
Appeals upheld the district court’s decision that the admission policy was
narrowly tailored to serve the compelling governmental interest of
improving the quality of education in urban public schools. A petition
for certiorari to the U.S. Supreme Court was filed on July 18, 2000, and
rejected on October 2, 2000.
L. Smith v. University of Washington Law School, 233 F. 2d 1188 (9th Cir.
2000), 2 F. Supp. 2d 1324 (W.D. Wash. 1998)
This case involves a challenge to the race-sensitive admissions program
at the University of Washington Law School. The case was certified as a
class action and the plaintiffs sought admission to the Law School as well
as damages. Last fall, a state statute was enacted by ballot initiative (I
200) making it unlawful to consider race in public education,
employment or contracting. In the wake of I 200, the University decided
to discontinue its race-sensitive admissions programs and moved the
court to dismiss as moot the class action portion of the case as well as the
injunctive relief sought by the individual plaintiffs. In February, 1999,
the Court granted that motion and issued an opinion on the plaintiffs’
summary judgment motion affirming that Bakke is still good law and
stands for the proposition that educational diversity can be a compelling
governmental interest justifying race-sensitive admissions programs. The
plaintiffs sought certification of that question for appeal and appealed to
the Ninth Circuit. On December 4, 2000, the Ninth Circuit affirmed the
district court’s ruling that Bakke is still good law and that Justice
Powell’s opinion, as the “narrowest” opinion in support of the holding, is
the controlling opinion in that case. In February, 2001, CIR petitioned
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the Supreme Court to hear the case. The University opposed certiorari.
A decision on whether the Court will take the case is expected in
Summer, 2001.
M. Adarand Constructors, Inc. v. Slater et. al., 228 F.3rd 1147 (10th Circuit
2000)
In March, 2001 the Supreme Court granted certiorari from the Tenth
Circuit opinion in this case that deals with the Disadvantaged Business
Enterprise (DBE) program of the Department of Transportation (DOT).
After the Supreme Court’s 1995 decision that these sorts of government
affirmative action programs were subject to strict scrutiny and a remand
decision from the lower courts that found the then current program
unconstitutional, the DOT changed its program. The new program is
race-conscious, but is supported by more findings on the history of
discrimination in the contracting business. The program has also been
modified to eliminate some of the previous “narrow tailoring” obstacles,
e.g., it now requires businesses to update their status as DBE’s more
frequently and the program requires contractors to meet the requirements
to “the maximum extent feasible” through race-neutral means.
N. Castenda, et al. v. The Regents of the University of California, (U.S.
District Court, N.D. CA, Case No. CV-99-0525 SI)
Originally filed as Jesus Rios, et. al. v. The Regents of the University of
California, this case presents a challenge to the “race neutral” admissions
program adopted in the wake of the Prop. 209 at the University of
California at Berkeley. A number of minority high school students,
represented by civil rights groups, allege that the admissions program
discriminates against minorities because it relies on certain courses, like
AP and honors, that are less accessible in high schools attended by
minorities, and gives too much weight to standardized test scores. The
complaint, filed in February 1999 alleges that these practices have a
disparate discriminatory impact on minority applicants. Attempts to
mediate the case have failed and trial is scheduled for the summer of
2002.
O. Wooden v. Board of Regents of the University of Georgia, 32 F. Supp.
2d 1370 (S.D. Ga 1999); Tracey v. Board of Regents of the University of
Georgia, 59 F. Supp. 2d 1314 (N.D. Ga 1999); judgment vacated, 208
F.3d 1313 (11th Cir. April 14, 2000); on remand, 2000 WL 1123268
(S.D. Ga July 24, 2000)
These cases involved challenges to the University of Georgia’s race
conscious admissions policy. There are several opinions from the
District Court on the standing of particular plaintiffs, on the prior
admissions system and on the application of LeSage to the plaintiffs’
claims for damages. The Court reached the merits of the current
admissions policy in its decision issued on July 24, 2000 and held that
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the policy was unconstitutional. The Court found that there was no
binding precedent on the question of whether diversity was a compelling
governmental interest and that under equal protection doctrine diversity
does not arise to the level of a compelling interest because: (1) there is no
evidence that significant educational benefits are derived from racial and
gender diversity; (2) there is “no principled stopping point” for taking
race into account in pursuing this interest; and (3) the interest is premised
on stereotypes, i.e., that race (and/or gender) are a proxy for viewpoint or
experience. The University of Georgia has appealed the July, 2000
decision to the Eleventh Circuit Court of Appeals. Briefing is complete
and argument is set for May 21, 2001. In the meantime, the University
has discontinued the use of its race-conscious policy and has settled the
individual plaintiffs’ claims. In April 2001, the Eleventh Circuit issued a
decision on the standing of some of the plaintiffs’ who had been
dismissed earlier in the litigation. The Court affirmed the dismissal in all
instances but one.
P. Hi-Voltage Wire Works, Inc., et. al. v City of San Jose, et. al.,
(November 30, 2000, CA Supreme Court) (Santa Clara County Superior
Court, No. CV 768694)
This action involved a challenge to the City of San Jose’s postProposition 209 contracting program which required contractors to fulfill
a minority outreach or participation requirement. The Court struck down
the program holding that “targeted” outreach -- outreach which is race or
gender conscious -- violates Proposition 209.
Q. Daniels v. State of California (Los Angeles Superior Court)
The American Civil Liberties Union filed suit in July, 1999 on behalf of
African American and Latino California public high school students
alleging that the allocation of AP classes throughout the state
discriminates against the students on account of their race in violation of
the California constitution and various state statutes. The suit alleges that
the relative lack of AP courses for minority students harms their
secondary education and decreases their access to higher education. A
stay in the case has been entered while the parties attempt to resolve the
case with the assistance of a team of educational experts. In January
2000, those experts presented their findings to the California legislature
and state officials. Legislation incorporating their recommendation is
pending.
II.
Notable Developments in Admissions Practices in Higher Education
A. California
In 1995, the California Board of Regents passed a resolution prohibiting
the consideration of race and ethnicity in admissions and financial aid to
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the state’s public colleges and universities. This measure was endorsed
and extended when the voters of California approved Proposition 209 in
1996 which barred granting preference to individuals on the basis of race,
ethnicity, gender, color, or national origin in public employment, public
education, and public contracting. Under these affirmative action bans,
minority enrollment at the state’s flagship campuses has plummeted.
Minority enrollment systemwide, however, has stabilized.
In July, 1999 Governor Davis vetoed legislation that would have clarified
that targeted outreach and recruiting programs to increase the pool of
minority applicants were still lawful under Proposition 209. (“I believe
the forms of outreach envisioned in this legislation violate the provisions
of that initiative…which prohibited race-based programs to achieve
diversity.”) Effective for the admissions season beginning in the Fall of
2000, the University of California Regents adopted a so-called "four
percent" plan which guarantees admission to one of the University of
California campuses for all public high school juniors who have
completed 11 of the 15 prescribed courses and rank within the top four
percent of their high school class. The policy only guarantees admission
into one of the eight UC schools: an applicant must apply to all eight
campuses in order to be assured of an acceptance, and that acceptance
could come from any of the campuses. In the wake of the Hi-Voltage
case, (discussed in legal section), California colleges and universities are
reviewing their targeted outreach programs.
B. Florida
In November, 1999, Florida’s Governor Bush issued an Executive Order
(99-281) making it unlawful to consider race in government employment
or contracting and calling upon the State University System’s Board of
Regents to implement a policy “prohibiting the use of racial or gender
set-asides, preferences or quotas in admissions.” In addition, together
with Chancellor
Adam Herbert, he proposed the “One Florida” plan. The centerpiece of
the plan was the so-called “Talented 20 Program” to guarantee admission
to one of the state’s colleges or universities to the top 20% of each
graduating public high school class without regard to SAT or ACT
scores, provided that the students complete their pre-college 19 credits
currently required by the State University System.
The elimination of race conscious admissions and the adoption of the
Talented 20 program was approved by the Board of Regents on February
17, 2000. A decision on eliminating the consideration of race in graduate
and professional school admissions has been postponed until 2001 so that
institutions “have enough time to develop alternative ways to recruit
minority students.” In response to public protest over the program, Bush
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also agreed to add a three year “accountability measure” to make sure
enough minorities are admitted into state universities.
The Executive Order and “One Florida” Plan do not address raceconscious financial aid. As part of Governor Bush’s One Florida plan, he
is proposing to increase need-based financial aid by 43% and to give a
preference for students in the top 20% of the graduating class. These
provisions require legislative approval, however, and they face some
opposition from critics of the “One Florida” plan.
C. Massachusetts
Effective for the admissions season beginning in the Fall of 2000, the
University of Massachusetts at Amherst implemented a new admissions
system that limits – but does not eliminate – the use of race in
admissions. The new program admits top students based on high school
grades and standardized test scores. But a new 10-point system is used
for students with lower grades and test scores. Under that system 2.5
points are assigned for factors such as residency, personal achievements
and diversity, which could include income and race.
D. Texas
After the 1996 decision by the Fifth Circuit in Hopwood v Texas
effectively barred all higher education institutions in the Fifth Circuit
from considering race in admitting students, the Texas legislature
designed a new admissions policy that provides automatic admission to
any Texas Public University System university to students who graduate
in the top 10 percent of their high school class. The new policy allows
individual higher education institutions the option of admitting students
in the top 25 percent of their class, and lays out 18 additional factors that
can be considered by institutions when determining admissions for
students who are not automatically admitted. Some of the other factors
include responsibilities while attending school, work experience,
community service/extracurricular activities, leadership, first-generation
college student, socioeconomic background, region of residence, personal
interview, and bilingual proficiency.
The new policy was implemented in the admissions season beginning in
the Fall of 1997. 1998 reports showed that 8,626 top-10 percent
graduates enrolled in public universities in Texas, which is below the
13,000 to 15,000 that were expected. The levels of diversity achieved
under the new plan vary by campus and by ethnicity. Systemwide, preHopwood levels of minority enrollment have almost been restored.
In September 1999, the current attorney general withdrew the opinion of
prior attorney general which had prohibited the Texas state universities to
use race-conscious financial aid. In light of the appeal of the Hopwood
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case (noted in the first section of this outline), Attorney General Coryn
opined that “it is inadvisable to reach broad conclusions on what may or
may not be permitted under Hopwood on matters other than admission.”
E. Virginia
Effective for the admissions season beginning in the Fall of 1999, the
University of Virginia ended its practice of giving “booster points” to
minority applicants, while continuing to take race into account as a factor
in admissions. President Casteen noted that the old system “did not work
well enough here because every applicant is entitled to a holistic
evaluation, regardless of particular qualities (including race) that might
be part of a scoring model.” The 1999-2000 applicant class had 25%
fewer African-American applicants than 1998-1999. The decline in all
applications was 16%, with the decline in African-American enrollment
comprising 12% of the overall decline.
F. Washington
In November 1998, Washington voters approved Initiative 200, which
outlawed the consideration of race in University admissions. In
compliance with the initiative, the University of Washington approved
new admissions guidelines in February 1999 which, while no longer
taking the race of an applicant into account, encouraged “schools and
departments… to consider such factors as cultural and life experiences,
and educational, economic, and personal disadvantage in their application
processes.” Under an affirmative action ban, minority enrollment has
dropped from 8.8% of the student body (373 out of 4219) in Fall 1998 to
5.9% (295 out of 4983) in the Fall of 2000.
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