AFFIRMATIVE ACTION AND DISCRIMINATION IN COLLEGE AND UNIVERSITY
ADMISSIONS AND FINANCIAL AID
March 19-21, 2003
William E. Thro
Christopher Newport University
Newport News, VA
THE USE OF RACIAL AND GENDER PREFERENCES
IN THE AWARDING OF FINANCIAL AID
Both public and private institutions of higher education frequently employee racial and
gender preferences in awarding financial aid. This outline focuses on questions surrounding the
constitutionality and legality of such practices.
This outline is divided into five Sections. Section I describes the three ways that race or
gender preferences can be employed in the awarding of financial assistance. Section II
demonstrates that public institutions and those private institutions that receive federal financial
assistance are subject to the same standards. Section III discusses the constitutional and legal
standard to be applied to racial preferences. Section IV does the same with respect to gender
preferences. Section V then sets out some intriguing questions for discussion regarding the use of
racial preferences in financial assistance.
I.
METHODS OF USING RACE OR GENDER PREFERNCES
A.
Race or Gender Exclusive
First, many scholarships are open only to persons of a particular race or gender. If someone
is excluded from applying for a scholarship solely because of his/her race or gender, then there is a
racial or gender classification. This is true although the persons excluded may be white or male.
B.
Race or Gender As A Plus Factor
Second, many scholarships allow anyone to apply, but use race or gender as a “plus factor.”
In other words, people may receive a slight advantage or disadvantage solely because of their race
or gender. Because people are treated differently because of their race or gender, the use of a ‘plus
factor” is considered to be a racial or gender classification.
C.
Race or Gender-Neutral
Third, many scholarships use criteria which are race or gender neutral but which have a
disproportionate impact on persons of a particular race or gender. For example, the scholarship
may give preferences for such things as poverty, being the first person from a family to attend
college, growing up in a single parent household, graduating from a high school with a high
dropout rate or which did not offer certain college preparatory courses, having a primary
language other than English, or living in a particular geographic area. Although racial and ethnic
minorities probably would be disproportionately represented in any applicant pool that meets
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these criteria, individuals are not included or excluded simply because of their race. See
McClessky v. Kemp, 481 U.S. 279 (1987). There will be some non-Hispanic Caucasian who
meets the criteria. Conversely, there will be some members of racial and ethnic minority groups
who do not meet the criteria. By shifting the emphasis from race to disadvantaged status, the
institution is recognizing that race is frequently used as a "proxy for other characteristics that
institutions value but that do not raise similar constitutional concerns." Hopwood v. Texas, 78 F.3d
932, 935 (5th Cir. 1996)(Quoting Richard Posner, The DeFunis Case and Constitutionality of
Preferential Treatment of Racial Minorities, 1974 Sup. Ct. Rev. 12 (1974) and Paulsen, Reverse
Discrimination and Law School Faculty Hiring: The Undiscovered Opinion, 71 Tex. L. Rev. 993,
1000 (1993)). Such an approach eliminates race as a relevant factor. See City of Richmond v. J.A.
Croson Co., 488 U.S. 469, 495 (1989).
Similarly, given the current demographics of aspiring nurses and elementary school
teachers, a scholarship designed for aspiring nurses or elementary school teachers may end up
with an applicant pool that is disproportionately female.
II.
WHY PUBLIC AND PRIVATE INSTITUTIONS ARE SUBJECTED TO THE
SAME STANDARD
A.
Title VI and Title IX Are Coextensive With the Equal Protection Clause
Public institutions are subject to the restrictions of the Constitution, while private institutions
are not. Thus, one might conclude that private institutions are subject to a different standard than
public institutions.
However, such a conclusion would ignore the impact of Title VI, 42 U.S.C. § 2000d, and
Title IX, 20 U.S.C. §§ 1681-88, both of which prohibit discrimination by institutions that receive
federal funds. The Supreme Court has held that Title VI prohibits racial discrimination to the same
extent and under the same standards as the Equal Protection Clause of the Constitution. See
Guardians Ass’n v. Civil Service Comm’n of the City of New York, 463 U.S. 582 (1983). Since the
scope of Title IX is nearly identical to Title VI, Smith v. NCAA, 525 U.S. 458, 466 n. 3 (1998) and
since Courts “have consistently applied the same legal analysis to construe Title VI and Title IX,”
Smith v. NCAA, 266 F.3d 152 157-58 (3rd Cir. 2001), it logically follows that Title IX prohibits
gender discrimination to the same extent and under the same standards as the Equal Protection
Clause.
Thus, Title VI and Title IX can be viewed as simply extending the protections of the Equal
Protection Clause to private institutions that receive federal funds while also reaffirming and
reinforcing those protections at public institutions that receive federal funds. Because Title VI and
Title IX are coextensive with the Equal Protection Clause, the test for determining liability under
both statutes is the same as the test for determining liability under the Equal Protection Clause.
Accordingly, it is necessary to explore the standard for liability under the Equal Protection Clause.
B.
The Need for Institutional Action
Although public institutions and private institutions that receive federal funds are both
subject to the standards of the Equal Protection Clause, the fact remains that the Equal Protection
Clause applies only to “state actions.” See In re Civil Rights Cases, 109 U.S. 3 (1883). Thus, the
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initial inquiry is whether institutions have engaged in “state action” by selecting the recipients,
funding the scholarship, or receiving funds on behalf of pre-selected students. See Burton v.
Wilmington Parking Authority, 365 U.S. 715, 722 (1961)(determination of whether state action
exists is made on a case by case basis and involves "sifting facts and weighing circumstances").
1.
Funding The Scholarship
When an institution chooses to devote some of its limited scholarship dollars to a program
that is open only to certain racial and ethnic groups, there are fewer dollars available for scholarship
programs that are open to all students. Thus, by funding such scholarships and/or by selecting the
recipients, the institution has made a choice to favor students of certain racial and ethnic groups to
the detriment of students who are not members of those groups. The choice to allocate resources in
a particular way constitutes governmental decision-making and, thus, is “state action.”. See
Pennsylvania v. Board of Directors of City Trusts of the City of Philadelphia, 353 U.S. 230, 231
(1957)(per curiam)(City committed state action and violated the Constitution when City, acting as
trustee of a private trust, enforced trust provision that limited admission to white males).
2.
Choosing the Recipients
Similarly, when an institution allows a private group to fund the scholarship, but the
institution selects the recipients of scholarships, the institution engages in “state action.” See
Gilmore v. City of Montgomery, 417 U.S. 556 (1974)(holding that government cannot use public
funds to subsidize groups that discriminate because of race); Norwood v. Harrison, 413 U.S. 455
(1973)(same).
3.
Having Outside Groups Fund the Scholarship and Choose the Recipients
Alternatively, when the institution does not fund the scholarship or select the recipients,
the institution does not engage in any “state action.” The institution’s only role is accepting a
check written by a third party on behalf of the individual student.
III.
RACIAL PREFERENCES
Racial classifications "are by their very nature odious to a free people whose institutions are
founded upon the doctrine of equality." Shaw v. Reno, 113 S. Ct. 2816, 2824 (1993)(quoting
Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). All racial classifications are inherently
suspect. See Miller v. Johnson, 115 S. Ct. 2475, 2482 (1995); Board of Regents of the Univ. of
California v. Bakke, 438 U.S. 265, 291 (1978) Consequently, racial classifications must be
subjected "to the strictest scrutiny, which (aside from two decisions rendered in the midst of
wartime) has proven automatically fatal." Jenkins v. Missouri, 115 S. Ct. 2065 (1995) (Thomas, J.,
concurring)(parenthetical original). A racial classification is permitted only if it is narrowly tailored
to promote a compelling state interest. This is true although the racial classification is designed to
help racial minorities rather than hinder them. While there may be a profound moral difference
between racial classifications designed to help racial minorities and those designed to hurt them,
the Supreme Court has held that there is no legal difference. See City of Richmond v. J.A Croson
Co., 488 U.S. 476, 495 (1989); Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1975).
A.
Compelling State Interest
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1.
Eliminating Present Day Effects of Previous Intentional Discrimination by the
Institution.
The most obvious compelling state interest is the need to remedy the present day effects
of specific incidents of prior governmental discrimination because of race. See Adarand
Constructors, Inc. v. Peña, 515 U.S. 200, 232 (1995); Croson, 488 U.S at 496-97. However, this
interest is problematic for universities. The findings of present day effects of past discrimination
to be remedied must be highly specific. See Croson, 488 U.S. at 488-89. Although the findings
of legislative bodies are generally entitled to great deference, see Williamson v. Lee Optical Co.,
348 U.S. 483, 488-89 (1955) a racial classification cannot rest on some generalized assertion that
discrimination exists in society or on a particular campus. See McLaughlin v. Florida, 379 U.S.
184, 190-92 (1964). Indeed, the history of racial classifications suggests that great deference to
governmental findings simply leads to further discrimination. Cf. Korematsu v. United States, 323
U.S. 214, 235-40 (1944)(Murphy, J., dissenting). Therefore, the mere fact that certain racial or
ethnic groups are underrepresented at a particular institution is not, by itself, sufficient to establish
intentional racial discrimination in violation of the Constitution. Indeed, the entire notion of
underrepresentation "rests on the completely unrealistic assumption that minorities will [make a
particular choice] in lockstep proportion to their representation in the local population." Croson, 488
U.S. at 507 (quoting Sheet Metal Workers v. E.E.O.C., 478 U.S. 421,494 (1986)(O'Connor, J.,
concurring in part and dissenting in part)). Consequently, most institutions will have difficulty
finding sufficient evidence to justify a finding of present day effects of prior intentional
discrimination. See Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994).
2.
Racial Diversity
A second possible compelling state interest is the institution's interest in maintaining a
racially diverse student body. In part IV-D of his opinion in Regents of the Univ. of California v.
Bakke, 438 U.S. 265 (1978), Justice Powell observed:
[t]he fourth goal asserted by petitioner is the attainment of a diverse student body.
This clearly is a constitutionally permissible goal for an institution of higher
education.
Id. at 311-12 (Powell, J., announcing the judgment of the Court). Although no other Justice joined
this portion of Justice Powell’s opinion, the U.S. Court of Appeals for the Ninth Circuit, see
Smith v. University of Washington, 233 F.3d 1188 (9th Cir. 2000), cert. denied, 121 S. Ct. ___
(2001), the U.S. Court of Appeals for the Sixth Circuit, see Grutter v. Bollinger, 288 F.3d 732
(6th Cir.)(en banc), cert. granted, 123 S. Ct. ___ (2002) and one judge of U.S. District Court for
the Eastern District of Michigan, see Gratz v. University of Michigan, 122 F. Supp. 2d 811 (E.D.
Mich. 2000), cert. granted before judgment in the Court of Appeals, 122 S. Ct. ___ (2002) have
concluded that maintaining a racially diverse student body is a compelling state interest. In
contrast, the U.S. Court of Appeals for the Fifth Circuit, see Hopwood v. Texas, 78 F.3d 932 (5th
Cir. 1996), explicitly held that maintaining a racially diverse student body is not a compelling
state interest. The Fifth Circuit recently stated that its 1996 holding in Hopwood “does not
conflict directly with controlling Supreme Court precedent. See Hopwood v. Texas, 236 F.3d 256
(5th Cir. 2000), cert. denied, 121 S. Ct. ____ (2001). The U.S. Courts of Appeal for the First,
Fourth, and Eleventh Circuits have avoided the issue by deciding cases on other grounds. See
Johnson v. Board of Regents, ___ F.3d ____ (11th Cir. 2001); Eisenberg v. Montgomery County
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Pub. Schs., 197 F.3d 123 (4th Cir. 1999), cert. denied, 120 S. Ct. 1420; Tuttle v. Arlington County
Sch. Bd., 195 F.3d 698 (4th Cir. 1999), cert. denied, 120 S. Ct. 1552 (2000); Wessman v. Gittens,
160 F.3d 790 (1st Cir. 1998).
Moreover, the federal Executive Branch has sent mixed signals on the issue. During the
Clinton Administration, the U.S. Department of Education issued a policy guidance concluding
that racial diversity was a compelling state interest. See Nondiscrimination in Federally Assisted
Programs; Title VI of the Civil Rights Act of 1964, 59 Fed. Reg. 8756, 8760-61 (1994). The Bush
43 Administration has not withdrawn or modified that policy guidance in any way. However, in
its briefs in Grutter and Gratz, the Bush 43 Administration declined to take a position on
whether racial diversity was a compelling state interest and suggested that it was unnecessary for
the Court to decide the issue.
B.
Narrow Tailoring
If an institution can establish a compelling state interest, whether it is the present day
effects of previous intentional discrimination or the achievement of a racially diverse student
body, there remains the requirement of narrow tailoring. Under present case law, narrow
tailoring involves four factors. See Yalof Garfield, Squaring Affirmative Action Policies With
Judicial Guidelines: A Model for the Twenty-First Century, 22 J. Col. & Univ. L. 895, 914 (1996).
First, the efficacy of non-racial remedies must be fully explored. United States v.
Paradise, 480 U.S. 149, 171 (1987). Racial remedies, such as a racial preference, will be
approved only where they are "necessary to break down patterns of deliberate exclusion."
Croson, 488 U.S. at 509. Cf. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630 (1991)("If our
society is to continue to progress as a multiracial democracy, it must recognize that the automatic
invocation of race stereotypes retards that progress and causes continued hurt and injury"). In other
words, if an institution is going to utilize a plan which excludes individuals from eligibility for
certain programs simply because the individual is not a member of a particular racial or ethnic
group, the institution must demonstrate that the only way to achieve that objective is to exclude
persons on the basis of race. Moreover, if a racial remedy is used, it can only benefit those racial
and ethnic groups that have suffered intentional discrimination against them. See Croson, 488
U.S at 506 ("The random inclusion of racial groups that, as a practical matter, may never have
suffered from discrimination . . . suggests that perhaps the . . . purpose was not in fact to remedy
past discrimination"). If the only intentional discrimination is against African-Americans, then
there is no justification to confer benefits on Hispanics, American Indians, Alaskan Natives,
Asians, or Pacific Islanders. See Id. See also Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 284
n.13 (1986)(plurality opinion) (inclusion of multiple racial groups indicates the undifferentiated
nature of the plan).
Second, the racial remedy must be flexible and temporary. See Paradise, 480 U.S. at 178.
For example, the Alabama Department of Public Safety was allowed to engage in a racial quota
system where fifty percent of all hires were African-Americans or Hispanics until certain
conditions were met. See Id. In this instance, it was relatively easy to identify a specific
termination point.
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Third, there must be a realistic numerical relationship between the racial remedy and the
relevant population. See Wygant, 476 U.S. at 292 (plurality opinion). For example, it may be
unrealistic to assume that the minority representation in any area of employment or education
will reflect minority representation in the general population. See Croson 488 U.S. at 507
(quoting Sheet Metal Workers v. E.E.O.C., 478 U.S. 421,494 (1986)(O'Connor, J., concurring in
part and dissenting in part)).
Fourth, the racial remedy generally may not favor one group to the absolute exclusion of
another racial group. For example, if it is still possible for members of another race to achieve
the benefit, then the racial remedy does not favor one group over another. See Paradise, 480 U.S.
at 182-85.
IV.
GENDER PREFERENCES
Although classifications based on race are considered “suspect,” classifications based on
gender are considered “quasi-suspect.” Gender classifications are upheld if the classification: (1)
served important governmental objectives; and (2) was substantially related to the achievement of
those objectives. Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v.
Boren, 429 U.S. 190, 197 (1976).
In applying this standard, the Supreme Court generally upheld statutes that seem to be a
reasonable means of compensating one gender for past societal discrimination. See Califano v.
Webster, 430 U.S. 313 (1977)(upholding a statute which allowed women to use a different
method of calculating retirement benefits). Moreover, the Court has invalidated those statutes
that appear to be based on a sexist stereotype. See United States v. Virginia, 518 U.S. 515
(1996)(invalidating exclusion of women from state operated military academy); Orr v. Orr, 440
U.S. 268 (1979)(invalidating statute which allowed alimony from men to women but prohibited
alimony from women to men); Califano v. Goldfarb, 430 U.S. 199 (1977)(invalidating a
provision which exempted women from the requirement of proving dependency in order to
collect survivor benefits). But see Nguyen v. INS, 121 S. Ct. 2053 (2001)(upholding a federal
statute which treated the foreign born children of male U.S. Citizens differently from the
children of female U.S. Citizens). While it is theoretically easier to sustain a gender classification
than a racial classification, the distinction would seem to have little practical effect.
V.
POTENTIAL EMERGING ISSUES
Because this is an advanced workshop, this section of the outline will discuss two potential
emerging questions regarding the use of racial preferences.
A.
Is There A Constitutional/Legal Distinction Between Scholarships That Are Race
Exclusive and Scholarships That Use Race As a Plus Factor.
As noted above, some scholarships are open only to members of a particular race while
others are open to everyone but use race as a “plus factor” in determining who is selected. Although
both types of scholarships are subjected to “strict scrutiny,” it may be that the distinction between
being race exclusive and merely using race as a plus factor is significant, if not determinative, as to
whether the scholarship will be upheld.
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To explain, a scholarship that is limited to members of a particular racial group is much like
the University of California at Davis’ set aside program that was invalidated in Bakke. There are a
specific number of “seats” or “scholarships” which are reserved for a particular race. If one is not a
member of the preferred race, it is possible to win that “seat” or “scholarship.” In contrast, a
scholarship that is open to everyone but which uses race as a “plus factor” is much like the
University of Michigan plans at issue in Grutter and Gratz. Anyone, regardless of race, can apply,
but certain people are going to receive an advantage simply because of their race. It is still possible
for members of the non-preferred race to win the award.
As noted above, under current case law, one of the narrow tailoring considerations is
whether the programs favors one group to the absolute exclusion of another racial group. See
Paradise, 480 U.S. at 182-85. In light of this, can a scholarship program that is limited to a
particular race meet the narrow tailoring standard?
B.
Given that Most Scholarships Can Attract Only a Small Number of Students, Can
Race Exclusive Scholarships Be Narrowly Tailored To Eliminate the Effects of
Previous Discrimination or To Achieve Racial Diversity.
Although the same constitutional/legal standards apply to the use of racial preferences in
both the admissions and financial aid contexts, there is a significant difference between the
admission and financial aid contexts in terms of the number of students affected. An admissions
system can use racial preferences to insure that several hundred people are admitted to a given
institution. Thus, the use of race will make a definite contribution to the achievement of the
compelling interest by significantly altering the demographic composition of the class. For
example, adding 20 points to the admissions index scores of applicants from a particular race will
shift numerous people from the twilight zone between acceptance and rejection into the clear
acceptance category.
In contrast, most scholarship programs will be limited to very few students or a very small
percentage of the class. While the scholarships will certainly have an impact on the recipients, the
contribution to the achievement of the compelling state interest will be minimal For example,
suppose an institution had one race scholarship in an entering class of 1,000 students. The existence
of that scholarship would not materially alter the demographic composition of the class.
The fact that a scholarship program is likely to have only a minimum impact on the class
leads to a profound question concerning narrow tailoring. Specifically, if a racial preference is
employed and only minimally advances the compelling state interest, is the preference narrowly
tailored? Is the mere fact that the compelling state interest is advanced sufficient or is more
required?
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