Race-Conscious Admissions Policies in Higher Education 1
Lauren Glase
Artifact 6-1
Artifact 6-1
ERMC Report

This artifact was developed during my internship with the Office of Graduate Studies in
Spring 2010.

This paper reviews the role that race plays in the higher education admissions process. It
looks at past cases involving race and the admissions process as well as current practices
at higher education institutions.

This artifact addresses Standard 6: Diversity from the Florida Educational Leadership
Standards and the performance substandards that apply.

I learned a great deal from this paper. I researched past cases that set the precedent or
changed the way race was viewed in the admissions process. I also looked at current
admission policies at institutions and how they use race and affirmative action in their
decisions. Learning about the past and how it has affected the future was eye-opening. It
was also great to see all the research on the benefits of diversity in the classroom.
Race-Conscious Admissions Policies in Higher Education 2
Race-Conscious Admissions Policies in Higher Education
Lauren Glase
Florida Gulf Coast University
Race-Conscious Admissions Policies in Higher Education 3
Introduction
This paper reviews the court cases and the implications of their outcomes regarding raceconscious admissions policies in the U.S. higher education system. After Bakke’s ambiguous,
plurality decision in 1978, the courts had a hard time discerning what policies were
constitutional, which ones were not, and why. However, in 2003, two cases heard by the
Supreme Court, Grutter & Gratz, helped clarify this by declaring that race-conscious admissions
policies were a compelling government interest, but needed to be narrowly tailored. These cases
gave universities the framework to follow for structuring their own admissions policies.
Universities need to keep race-conscious admissions “holistic” and “individualized.” This paper
also discusses a race-neutral policy known as percentage plans, which many universities have
embraced since these cases.
Diversity in the Classroom
Diversity is an important component of the classroom and beyond. Eckes (2004)
discussed that “the educational benefits that depend upon opportunities that result from student
interaction in a racially diverse classroom cannot be achieved with few minorities enrolled.
Without diverse experiences and viewpoints within the classroom, students would be missing out
on an important aspect of their education” (Eckes, 2004, p.49). He pointed out many professors
who agree with these sentiments and concluded that a diverse classroom offers a very different
dynamic with different views and experiences being shared. In support of this, Eckes (2004)
stated that “a survey of over 500 law school faculty members supported the positive aspects of
diversity in the classroom. Almost three-fourths of the faculty believed that a diverse student
body was important to the mission of their school” (Eckes, 2004, p.49).
Race-Conscious Admissions Policies in Higher Education 4
Chapa (2005) said that:
A racially and ethnically diverse student body promotes learning. Moreover, social justice
and equity concerns demand that the racial and ethnic composition of universities students
look more like the composition of the college-age population. Race is a major feature of
American social life and a central feature of our education system. Race plays a large role in
determining which school students attend, the quality of their schools, and how they are
treated by their teachers and by other students. (p.182)
Eckes (2004) contended that “without the use of race-conscious admissions programs, minority
enrollment at the nation’s top-tier universities would have plummeted” (Eckes, 2004, p.57).
According to the research, as the minority student body increases, school problems
increase, achievement scores on tests decrease. Chapa (2005) asserted that
At the secondary level, when segregation increases, the dropout rate rises, the number of
college preparatory courses offered decreases, the percentage of students taking college
entrance examinations decreases, and the average college admissions test scores decline.
Segregation of school-age African Americans and Latinos is highly related to their low
participation in higher education. (p.183)
Cases in higher education
Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003) were key cases in the
constitutionality of affirmative action programs in university admissions. Both cases involved
the University of Michigan; however, Gratz concerned undergraduate admissions and Grutter
involved the law school. In Gratz, the Supreme Court declared the undergraduate race-conscious
admissions policy to be unconstitutional; however in Grutter, the high court deemed the law
school’s admission program to be constitutional. Eckes (2004) looked at both cases and how
Race-Conscious Admissions Policies in Higher Education 5
they provided a blueprint for universities’ admissions policies. When the Supreme Court heard
both cases, the only previous case dealing with race-conscious admissions policy was Regents of
the University of California v. Bakke (1978). This case involved a white male who sued for
being rejected to the medical school when less qualified minority applicants were admitted. The
medical school set aside 16 out of 100 places for disadvantaged minorities. The lower court,
California’s Supreme Court, and the U.S. Supreme Court all held that this practice was
unconstitutional. This set the standard that “quotas” were unconstitutional in admissions
policies; however, the Supreme Court reversed the lower court’s ruling that race could never be a
factor in education. So, this left many confused as to what extent race could be used in
admissions in higher education. The justices were also divided on the issue and a plurality was
the decision maker. Writing for the plurality, Justice Powell stated that diversity is a compelling
government interest, but that the medical school’s policy was not ‘narrowly tailored’ enough to
survive strict scrutiny. In cases brought to the courts after Bakke, various circuits took different
viewpoints on the issue. Some said, according to Marks v. United States (1977), that Justice
Powell’s reasoning held and agreed that the “Harvard Plan” was constitutional. Daniel (2003)
explained that:
The Marks Court provided explicit guidelines for distilling rules from the opinions of
fragmented courts, to wit, ‘when a fragmented court decides a case and no single rationale
explaining the result enjoys the assent of five justices, the holding may be viewed as that
position taken by those members who concurred in the judgment on the narrowest grounds.
(p.75)
Eckes (2004) noted that the Harvard plan was adopted from Harvard College and states that race
is a “plus” factor among many different factors in the admissions process. However, other courts
Race-Conscious Admissions Policies in Higher Education 6
did not find Bakke’s decision binding, thus, doing away with the constitutionality of raceconscious admission policies (Eckes, 2004).
Another monumental case was Hopwood v. Texas (1996). Eckes (2004) stated that
Hopwood involved three white students who were denied admission to the University of Texas
Law School in 1992, they then filed suit claiming that less qualified minority applicants were
admitted. The students filed suit under the Equal Protection Clause of the Fourteenth
Amendment and Title VI of the Civil Rights Act. These are the most popular violations in
regard to race-conscious admissions cases. The students’ argument was that the school had two
separate admissions committees: one for whites and one for minorities (Eckes, 2004). Jaschik
(1994) stated that the law school admissions policy used different cut off marks for admitted and
denied minority students versus white students. The university claimed that if they didn’t use
different figures for minorities, the number of potential admitted minorities would drop by half.
The Fifth Circuit Court of Appeals reversed the district court judgment and struck down the
notion of diversity as a compelling government interest. The Court did not believe that the law
school was the appropriate place to remedy discrimination within education. The Supreme Court
denied certiorari, so the circuit court decision held (Jaschik, 1994). According to Sowell (1994),
the white plaintiffs who won the case were awarded one dollar each in damages and the chance
to apply again the next year. Sowell asked:
Why did the University of Texas lose this case, if affirmative action is so right and so
necessary? Because it had separate admissions procedures for white and minority applicants.
Put them all in the same pool, giving minority students a ‘plus’ factor, and all will be well. It
is the same distinction without a difference that earned such kudos for former Supreme Court
Justice Lewis F. Powell in his Bakke decision back in 1978. (p.64)
Race-Conscious Admissions Policies in Higher Education 7
Eckes (2004) explained that in Smith v. University of Washington Law School (2002), the
courts did not follow the Hopwood decision. “In 2000, the Ninth Circuit affirmed the lower
court decision that diversity was a constitutionally permissible goal” (Eckes, 2004, p.30). The
circuit court examined Bakke and held that Powell’s decision was supported.
The Eleventh Circuit heard the case of Johnson v. Board of Regents and declared the
point system used at the University of Georgia to give extra points to minorities, was not
narrowly tailored and declared it unconstitutional. “The Eleventh Circuit held that the
University’s affirmative action program was unconstitutional because it mechanically awards an
arbitrary diversity bonus to each and every non-white applicant…and severely limits the range of
other factors relevant to diversity” (Eckes, 2004, p.31).
These were the cases the preceded both Gratz and Grutter. Because of the fractured
opinions in Bakke, and the different analyses and decisions of the lower and circuit courts, the
Supreme Court was in a position to set the record straight with these two cases (Eckes, 2004). In
December of 2002, the Supreme Court heard both of the Michigan cases. By the time these
cases made it to the Supreme Court, there was a following of supporters for both sides. On the
university’s defense, there was, of course, the university, along with several Fortune 500
companies and the American Council on Education (Eckes, 2004). According to Crockett
(2003):
These corporate chieftains are speaking out about such a hot-button social issue because they
believe that as minorities’ share of the U.S. population has mounted, diversity has become a
critical workforce requirement. The nation’s colleges are an essential part of the pipeline that
feeds new hires to large companies. On a campus where diversity thrives, students develop
and ‘appeal to a variety of consumers’ and work with colleagues and clientele from many
Race-Conscious Admissions Policies in Higher Education 8
ethnic backgrounds. (p.96)
Crockett (2003) listed some of the companies that were advocating for race-conscious
admissions policies in higher education and they included Exelon, Microsoft, Bank One, General
Motors, and Steelcase. The author believed race was a legitimate factor to consider because the
societal point of a college education is to “equip citizens with the skills required to thrive in a
competitive environment” (Crockett, 2003, p. 96). In this article, Steelcase’s CEO, James P.
Hackett, stated that “a diverse college environment is a much better setting for preparing
graduates for life in business” (Crockett, 2003, p.96). According to Eckes (2004), “in response,
the Bush administration filed a brief with the Supreme Court urging that affirmative action
admissions programs at the University of Michigan be held unconstitutional. The administration
believed that the current admissions policies at the University of Michigan unfairly rewarded or
penalized students based solely on their race” (Eckes, 2004, p.44).
In Grutter v. Bollinger (2003), white rejected applicants filed suit in 1997 saying that the
law school’s admissions policy favored minorities and it violated their Equal Protection Clause
and Title VI rights. According to Eckes (2004), “the law school used race as one of many
unquantified factors that could enhance an applicant’s chances of admission. In order to
demonstrate a commitment to diversity the law school sought to enroll a ‘critical mass’ of
minority applicants” (Eckes, 2004, p.35). The Supreme Court upheld the law school’s
admissions program. Eckes (2004) explained that “in so doing, the majority reasoned that the
only holding for the Court in Bakke was that a ‘state has a substantial interest that legitimately
may be served by a properly devised admissions program involving the competitive
consideration of race and ethnic origin” (Eckes, 2004, p.41). The Court declared that the
university’s admission policy enabled diversity which was essential to the school’s mission. The
Race-Conscious Admissions Policies in Higher Education 9
Court even noted that American businesses, and the military, need diversity to function, as
promoted by higher education. Even though the Court decided that race is a compelling
government interest in higher education admissions, the program must also be narrowly tailored.
Eckes (2004) acknowledged that “the Court reasoned that narrow tailoring does not require that
every conceivable race-neutral policy must be attempted before an affirmative action program is
adopted” (Eckes, 2004, p.46). In Grutter (2003), the Court declared the law school’s policy was
narrowly tailored because it considered race alongside other meaningful factors related to
diversity. The Court also established that there needs to be a time limit to these affirmative
action plans (Eckes, 2004).
The Gratz v. Bollinger case ended in a very different way than Grutter (Eckes, 2004).
The Court struck down the affirmative action admissions policy because it was not narrowly
tailored. The undergraduate race-conscious admission policy consisted of awarding extra points
to minority candidates. Even though race was a consideration among others such as GPA and
test scores, it had the possibility of making race a deciding factor. ”Unlike the admissions
program in Grutter, the LSA (undergraduate) program did not provide any individualized
consideration of the student” (Eckes, 2004, p.48).
The Supreme Court finally set the record straight and declared race-conscious admissions
policies constitutional and a compelling government interest. Eckes (2004) stated that “Grutter
teaches us that a highly ‘individualized, holistic review of each applicant’s file’ while
considering race is permissible, whereas race used in a ‘mechanical way’ as in Gratz is not
acceptable” (Eckes, 2004, p.62). However, universities have to prove that their program is
narrowly tailored, has a time limit, and show results from fulfilling diversity in their mission
through this policy. If universities choose to embrace a race-conscious admissions policy, they
Race-Conscious Admissions Policies in Higher Education 10
must weigh each application fairly and approach it in a “holistic” manner. Programs were
reviewed and modified after the Grutter decision to make sure they were in compliance (Eckes,
2004).
Prerequisites for race-conscious admissions policies
O’Neil (2008) narrowed down the prerequisites for an admissions policy to be
constitutional from the Grutter court and the current justices’ opinions. These included:
The inclusion and application of preferential admissions criteria other than race; year-to-year
numerical variations that would show that no quota or fixed target was operating;
individualized rather than group consideration of applicants’ files; and some palpable link
between racial diversity and the institution’s mission. Any race-inclusive plan lacking such
elements would be in serious trouble. (p.16)
Another limitation O’Connor placed through Grutter was the time limit to the policies.
She said these plans should expire within a generation or a quarter century. She also implied that
the policy must reflect a faculty’s “educational judgment.” Race-inclusive policies must also
show results, so universities need to make sure they are keeping records and following the data
on these programs. According to Grutter, universities must consider race-neutral policies before
enacting affirmative action policies to achieve diversity (O’Neil, 2008). One example of a raceneutral policy that some states have implemented is the percentage plan.
Percentage Plans
In 1996, California passed Proposition 209, which prohibits racial and gender
discrimination in public employment, has drastically changed the number of enrollment at many
California universities. O’Neil (2008) claimed that:
The Court’s curb on the use of race-based desegregation remedies in public schools would
Race-Conscious Admissions Policies in Higher Education 11
almost certainly reduce the pools of well-prepared applicants from minority groups that have
historically been underrepresented in higher education (mainly African American and
Hispanic students). Fewer qualified minority applicants will mean that achieving and
maintaining diversity on college and university campuses will be even more challenging.
(p.14)
For example, the University of California Law School at Berkeley enrolled twenty black students
before the new policy, but after the policy passed, only enrolled one black student. The
Hopwood decision in Texas also decreased minority enrollment in Texas universities. At the
University of Texas in Austin, before Hopwood, the law school enrolled 20 to 40 black students
each year, but after the decision, it dropped to four black students (O’Neil, 2008). Because of
the decline in minority numbers in these states where action had been taken to decrease raceconscious admissions, the states adopted percentage plans to help alleviate the negative results.
According to Lloyd, Leicht, and Sullivan (2008), “percent plans guarantee admission to public
universities for some proportion of a high schools’ graduating senior class” (Lloyd, Leicht, &
Sullivan, 2008, p.1106). In Texas, the top 10% of graduates of each high school were granted
automatic admission to study at a University of Texas system school. Florida began the Florida
First Plan which guaranteed admission of the top 20% of graduating seniors at each high school.
California implemented the top four percent program which admits the top 12.5% of the total
high school graduates in the whole state. This program, unlike Texas and Florida, did not lead to
an increased minority enrollment in state universities (O’Neil, 2008).
Research on the “Texas Top 10% Law” has been plentiful. Researchers want to find out
if these percentage plans work and to what degree they increase minority enrollments. Lloyd et
al. (2008) found that Texas’ Top 10% plan affects high school students’ college aspirations as
Race-Conscious Admissions Policies in Higher Education 12
well as minority student enrollment. The researchers surveyed students at 96 Texas public high
schools four years after the enactment of the top 10% plan. The research found that “only 43%
of Texas high school seniors report that they know ‘a lot’ or ‘some’ about the law. This is
important because students cannot take advantage of the policy if they are not aware” (Lloyd et
al., 2008, p. 1118). The researchers concluded that the percent plan played a role, among others,
in college aspirations of students who may not have considered college. “We also show that
individual student academic preparation, families, peers and high school context play an
important role, especially for minority students, but the law itself has an effect regardless of
these other factors” (Lloyd et al., 2008, p. 1128). The article states that by strongly reducing the
uncertainty for students in the top 10% of the senior high school classes, the percentage plan
“may have the effect of improving diversity in colleges simply because a broader range of
students becomes motivated to apply” (Lloyd et al., 2008, p. 1128).
In 1999, Governor Jeb Bush of Florida implemented his One Florida Initiative which
prohibited race-conscious admissions in the state university system (SUS) and replaced it with
the Talented 20 (Lee & Marin, 2003). According to Lee & Marin (2003), the Talented 20
program guarantees students in the top 20% of their graduating high school class admission into
a SUS school, but it does not guarantee choice of institution. “In sum, Governor Bush promised
that the Talented 20 plan would increase higher education access for underrepresented students
and increase the diversity of the State University System. Furthermore, he promised to provide
funds to support these goals” (Lee & Marin, 2003, p. 8). Even though Bush claimed his
initiative was a success after only one year, it is still up for debate as to whether this race-neutral
program is increasing the diversity in Florida universities. According to Lee & Marin (2003),
the Talented 20 initiative does not show as much promise as Bush claimed:
Race-Conscious Admissions Policies in Higher Education 13
The actual results of the Talented 20 policy should be reason enough not to use it as a national
model. An increase of fewer than 180 newly eligible students in each of the first two years is
hardly reason to replicate the program. These low numbers do not address institutional
diversity or college access. Furthermore, examining the results by proportion show that
enrollment of racially and ethnically diverse students should be higher each year simply as a
result of state and school-level demographics. (p. 39)
The top ten percent plan in Texas has proven to have had a positive effect on Latino
participation at most state schools, according to Chapa (2005). This article showed enrollment
numbers are high or higher than pre-Hopwood days (Chapa, 2005). Roach (2007) said that “in
2006, UT Austin recorded its highest ever enrollment numbers for Hispanic and Black students”
(Roach, 2007, p.21). The state schools’ student bodies are more diverse in terms of economic
background and geographic representation as well. The success of minority enrollments may be
attributed to recruitment efforts and financial aid programs as well as the new percentage plan.
Dr. Kevin T. Leicht, a sociology professor at the University of Iowa, believes there is a “side
benefit to actually having these outreach activities where the university administrators go to
different high schools in places where a big campus administrator has never appeared in person”
(Roach, 2007, p.22). Chapa (2005) argued that “sustaining the 10% plan in Texas and initiating
successful percent plans in other states seems like the best way to democratize access to higher
education. Percent plans work and they are less subject to lawsuits than traditional affirmative
action, which considers race as a ‘plus’ factor” (Chapa, 2005, p.194). Universities will need to
devote time and resources to make sure their race-conscious programs would withstand the new
standards and possible lawsuits in the future.
Post Grutter & Gratz
Race-Conscious Admissions Policies in Higher Education 14
After the Grutter decision, many groups have launched efforts to fight back. According
to Eckes (2004), “these groups will push for state ballot initiatives and additional litigation in
order to avoid race-conscious admissions programs” (Eckes, 2004, p.55). Parents Involved v.
Seattle School District and Meredith v. Jefferson County Board of Education were both postGrutter and Gratz court cases dealing with the use of race-based policies in public elementary
and secondary schools (O’Neil, 2008). In O’Neil (2008), the author explored what these cases
mean to higher education. The ruling in these cases affirmed the high court’s decision in Grutter
v. Bollinger that race-sensitive admissions policies were constitutional. “Writing for the
plurality, Chief Justice John Roberts noted that higher education should be viewed very
differently from elementary and secondary school education” (O’Neil, 2008, p.15). This
validated Chief Sandra O’Connor’s previous declaration that “universities occupy a special niche
in our constitutional tradition” (O’Neil, 2008, p.20). It also confirmed the court ruling in Smith
v. University of Washington Law School, where, according to Eckes (2004), “the court described
the university setting as a ‘unique niche of our society’” (Eckes, 2004, p.30). O’Neil (2008)
argued that the high court has always had a commitment to the academic freedom of universities.
In “Sweezy v. New Hampshire, the first major academic freedom ruling, the justices clearly
recognized the distinctive case for protecting free expression and inquiry on the college campus”
(O’Neil, 2008, p.19). The Parents Involved case was no different. Roberts quoted language
from Grutter in both of these elementary and secondary education cases that stressed the
difference of higher education compared to lower education. The author concluded that it was a
surprise to many that even with O’Connor’s retirement; Roberts upheld the support for academic
freedom and the “unique context of higher education” (O’Neil, 2008, p.20). On the other hand,
the article contended that the preferential use of race as an admission criterion has never been
Race-Conscious Admissions Policies in Higher Education 15
sustained at the undergraduate level. “The only time the justices have ruled on such a plan, in
the Gratz case, they found it constitutionally deficient” (O’Neil, 2008, p.16). Some may argue
that undergraduate admissions can never be “holistic” and “individualized” because of the sheer
size. O’Neil (2008) also pointed out that O’Connor spoke of the importance of racially diverse
student body in preparing students for learned professions, such as law and medicine. However,
the value of academic freedom at the university level will always play an important cause in
cases. In Bakke, Justice Powell, spoke of the value of academic freedom in higher education.
He said, “Academic freedom, though not a specifically enumerated constitutional right, long has
been viewed as a special concern of the First Amendment. The freedom of a university to make
its own judgments as to education includes the selection of its student body” (O’Neil, 2008,
p.20).
Conclusion
Higher education admissions policies in the U.S. have evolved over time with the help of
court cases on the issue. Even though the Supreme Court’s fractured decision in Bakke caused
confusion among universities, students, and ultimately the courts, the justices further clarified the
issue after Gratz and Grutter. Gratz and Grutter laid the foundation for which all race-conscious
admission policies must be built upon. Universities need to be careful to try alternative raceneutral programs before implementing affirmative action because otherwise they wouldn’t pass
the “narrowly tailored” strict scrutiny of the courts. It may prove difficult for undergraduate
admissions to look at students in a “holistic” and “individualized” manner because of the sheer
numbers they deal with. Percentage plans may be the best alternative for the time being. If
universities decide to embark on race-conscious admission policies, they need to make sure the
policy is furthering their mission of diversity with results, they are not using quotas, they have a
Race-Conscious Admissions Policies in Higher Education 16
time limitation, they use race as one factor among others, and they have tried other race-neutral
alternatives. These are important components of a race-conscious admission program that
universities need to be aware of. Administrators need to be familiar with these court cases as
well as the values and policies that have come about because of them. They also may need to be
careful when implementing affirmative action programs in other areas of campus. O’Neil (2008)
questioned whether, in the future, issues will be raised pertaining to race-conscious programs
beyond admissions including financial aid, minority outreach, or counseling. These programs
aim at enhancing diversity, so the article ponders when they, too, will come under attack
(O’Neil, 2008).
Race-Conscious Admissions Policies in Higher Education 17
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