UPDATE ON AFFIRMATIVE ACTION/DIVERSITY LITIGATION
June 26-29, 2002
Jonathan R. Alger
University of Michigan
Ann Arbor, MI
I.
Affirmative Action in Admissions: The Michigan Cases
The University of Michigan is currently involved in two cases involving challenges to its
consideration of race as one among a number of factors in admissions: one involving law school
admissions, and the other involving undergraduate admissions. As of May 29, 2002, the Sixth Circuit
Court of Appeals had issued a ruling in the law school case (summarized below), but not in the
undergraduate case. Brief summaries of the cases follow. The University of Michigan maintains a web
site with detailed information about the cases, evidentiary record, amicus briefs, etc. at www.umich.edu.
This site will be updated continually as new developments occur in these cases.
Grutter v. Bollinger et al. (6th Cir. May 14, 2002) (Law School Admissions)
Summary
On May 14, 2002, the federal Court of Appeals for the Sixth Circuit held in Grutter v. Bollinger
et al. that the University of Michigan Law School’s admissions policy is constitutional, reversing an
earlier decision by a federal district court judge. The federal court of appeals followed the precedent set
forth by the U.S. Supreme Court in Regents of the University of California v. Bakke (1978), holding that
the Law School’s interest in achieving the educational benefits that come from a diverse student body is
compelling, and that its admissions policy is “narrowly tailored” to serve that interest. The court noted
that the Law School had drafted its admissions policy to comply with Bakke, and that colleges and
universities have been relying on this Supreme Court precedent for over twenty years.
Majority Opinion
The court found that each applicant is treated as an individual in the Michigan Law School
admissions process, which the court characterized as “virtually indistinguishable” from the Harvard
admissions plan approved by the Supreme Court in Bakke. The Law School considers a number of
factors in its admissions process, including Law School Admissions Test scores, undergraduate gradepoint averages, the quality of undergraduate institutions, recommendations, essays, leadership and work
experience, unique talents or interests, and areas and difficulty of undergraduate course selection. As
the court noted, the Law School also considers many factors “to help achieve that diversity which has
the potential to enrich everyone’s education and thus make a law school class stronger than the sum of
its parts.” Race and ethnicity are among those many factors, and the court emphasized that “the Law
School’s consideration of race and ethnicity does not operate to insulate any prospective student from
competition with any other applicants.”
The court found that the Law School’s pursuit of a “critical mass” of students from underrepresented groups provides a class with meaningful numbers of minority students “to ensure that all
students – minority and majority alike – will be able to enjoy the educational benefits of an academically
diverse student body.” The court noted that the admissions program is flexible, with no fixed goal or
target. It does not use separate tracks for minority and non-minority applicants, and it does not function
as a quota system. Furthermore, it sets “appropriate limits” on the competitive consideration of race and
ethnicity. The court also found that the Law School had adequately considered race-neutral alternatives,
and had ample reason to decide that some consideration of race is necessary to achieve its goal of a
diverse student body in all of its facets.
The court noted that the law does not require the Law School to choose between meaningful
racial and ethnic diversity and academic excellence, stating that “[a]n institution of higher education
need not abandon its academic mission to achieve absolute racial and ethnic neutrality.” The court
stated that it cannot ignore the educational judgment of the Law School’s faculty and admissions
personnel, and recognized that the Law School acted in good faith in developing its admissions program.
Dissent
A minority of the court dissented, arguing that the Supreme Court’s Bakke decision is not
controlling law and that diversity is not a compelling interest. The dissent also asserted that the Law
School’s efforts to achieve a critical mass of minority students are functionally indistinguishable from a
numerical quota. While acknowledging that race does matter in American society, the dissent
nevertheless suggests that the Law School should exclude race and ethnicity from its diversity
considerations. The dissent asserts that the pursuit of race-neutral diversity will still somehow produce
the broadest “pluralism of ideas and experiences.” The majority of the court explicitly refuted the
dissent’s arguments, concluding that “[i]n reality, by reducing the range of experiences the Law School
can consider—namely, the experience of being an African-American, Hispanic or Native American in a
society where race matters—the dissent proposes only a narrow and inferior version of the academic
diversity currently sought by the Law School.”
Intervenors
A number of individuals and student groups intervened in the case, arguing that the Law
School’s consideration of race and ethnicity was necessary to remedy past discrimination. Having found
that the Law School’s admissions policy is justified on the basis of achieving a diverse student body, the
court did not address the rationale put forth by the intervenors.
**********
Gratz v. Bollinger, et. al., 122 F. Supp.2d 811 (E.D. Mich. 2000) (Undergraduate Admissions)
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 of 1964 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 to
remedy past and present discrimination.
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On December 13, 2002, 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 university officials who had been named as defendants in their individual capacities.
In a separate opinion, the Court rejected the arguments of the intervenors.
All parties appealed to the Sixth Circuit Court of Appeals. CIR appealed the ruling about the
current policy, and the University cross-appealed on the ruling about the prior policy. On CIR’s motion,
the case was heard en banc on December 6, 2001 (as was also true of the law school case).
II.
Race-Targeted Financial Aid
The consideration of race or national origin in the awarding of financial aid is also subject to
strict scrutiny. In 1994, after a long process involving public notice and comment, the U.S. Department
of Education issued final policy guidance setting forth the circumstances under which race-targeted
financial aid is permissible under Title VI as interpreted by the federal government. See 59 Fed. Reg.
8756 (Feb. 23, 1994). This guidance was reiterated by the Department in light of subsequent federal
court decisions in Podberesky v. Kirwan (described below) and Adarand Constructors v. Pena, 515 U.S.
200 (1995) (applying strict scrutiny to racial classifications in federal programs), see letter from Judith
A. Winston to College and University Counsel dated September 7, 1995; and in Hopwood v. Texas, 78
F.ed 932 (5th Cir. 1996), cert. denied, Texas v. Hopwood, 518 U.S. 1033 (1996) (rejecting the diversity
rationale as applied to admissions at the University of Texas Law School), see letter from Judith A.
Winston to College and University Counsel dated July 30, 1996. The Department has applied the policy
guidance in a number of agency findings since its issuance. As with admissions, the developing case
law in any particular federal circuit or jurisdiction (as well as any applicable state law or initiatives)
must also be considered by any institution in reviewing its race-conscious financial aid programs.
As with admissions programs, some financial aid programs have been challenged in litigation or
in complaints to the U.S. Department of Education’s Office for Civil Rights. For example, in October
1998 a white male student at the University of Tulsa filed a class action suit against the Oklahoma State
Regents for Higher Education in federal district court (Pollard v. State of Oklahoma), challenging the
legality of a scholarship program that set different test-score requirements for members of different
racial groups and for men and women. The Oklahoma Academic Scholars Program was established by
state law and provides scholarships to in-state students with high test scores. The case was settled in
1998, and in June 1999 the state eliminated the race and gender-specific features of the program.
The Department of Education policy guidance has not been rescinded by the current
administration as of the date of the writing of this outline, although some commentators have expressed
concern about this possibility. The guidance describes the applicability of Title VI and its implementing
regulations to student financial aid that is awarded, at least in part, on the basis of race or national origin.
The guidance sets forth several principles, which are described briefly below, and provides legal
analysis to support each of the principles. The Department noted that in identifying these principles, it
was “not foreclosing the possibility that there may be other bases on which a college may support its
consideration of race or national origin in awarding financial aid,” and that other justifications presented
during the course of a Title VI investigation would be considered on a case-by-case basis. 59 Fed. Reg.
8756, n.1.
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Principle 1: Financial Aid for Disadvantaged Students
A college may make awards of financial aid to disadvantaged students, without regard to race or
national origin, even if that means that these awards go disproportionately to minority students.
Id. at 8757.
The guidance notes examples such as aid for students from low-income families or from school
districts with high dropout rates, or for students from single-parent families or families in which few or
no members have attended college. Other possibilities might include students from particular
geographic locations (e.g., the inner city). Although some critics charge that such programs serve
largely as proxies for the consideration of race, they are likely to be upheld if they can be shown to
relate in some broad sense to the mission and goals of the institution. As the Department noted,
It is the Department’s view that awarding financial aid to disadvantaged students provides a
sufficiently strong educational purpose to justify any racially disproportionate effect the use of
this criterion may entail. In particular, the Department believes that an applicant’s character,
motivation, and ability to overcome economic and educational disadvantage are educationally
justified considerations in both admission and financial aid decisions.
Id. at 8759.
Similarly, financial aid can be awarded based on race-neutral criteria such as experience in
diverse cultural or social settings, interest in studying fields such as ethnic studies, interest in community
service, etc. This same sort of justification for facially race-neutral criteria has also been used
historically to support other criteria that have had a disproportionate impact in favor of white students
(e.g., alumni preferences).
Principle 2: Financial Aid Authorized by Congress
A college may award financial aid on the basis of race or national origin if the aid is awarded
under a Federal statute that authorizes the use of race or national origin. Id. at 8757.
The Department noted that aid programs authorized under a specific Federal law cannot be
considered to violate another Federal law (i.e., Title VI), based on “the canon of construction under
which the specific provisions of a statute prevail over the general provisions of the same or a different
statute.” Id. (citations omitted). A question that often arises, however, is the degree of specificity
needed in legislation and in legislative history to demonstrate specific congressional intent to create
race-targeted programs. Furthermore, in 1995, the Supreme Court ruled that federal programs
containing racial classifications are subject to the same level of scrutiny as state and local programs. See
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
Since the guidance was issued, some federal financial aid programs have been challenged or
modified. For example, a white male graduate student at Clemson University--who failed to win one of
2250 National Science Foundation (“NSF”) research fellowships--sued NSF in federal court in 1997 for
denying him a chance to apply for one of 400 additional slots in NSF’s Minority Graduate Research
Fellowship Program based on his race. See Kidd v. National Science Foundation, No. 97-2005-A (E.D.
Va. filed Dec. 12, 1997). Slots in the program had been reserved for members of groups traditionally
underrepresented in science and engineering—blacks, Hispanics, Native Americans, and Pacific
Islanders. NSF initially contended that its mandate for the fellowship program came directly from its
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founding mission to strengthen U.S. science and from more recent legislation ordering it to take steps to
increase the number of minorities in science. The suit was settled in 1998, and NSF developed a new
program of graduate fellowships making financial awards to institutions instead of to individual
students.
Principle 3: Financial Aid To Remedy Past Discrimination
A college may award financial aid on the basis of race or national origin if the aid is necessary
to overcome the effects of past discrimination. 59 Fed. Reg. at 8757.
This principle requires the demonstration of a nexus between present effects and past
discrimination in policies, practices, etc. The Department stated that a finding of discrimination may be
made by a court, administrative agency such as the Department’s Office for Civil Rights, or a State or
local legislative body with a strong basis of evidence of discrimination within its jurisdiction. The
guidance stated that a college need not wait for such a finding to act, however, so long as the institution
had a strong basis in evidence for concluding that race-conscious affirmative action was needed to
overcome the effects of its own past discrimination.
Financial aid has been used at a number of institutions as a tool to overcome the effects of past
discrimination, frequently in states that had once had de jure segregated systems of higher education—
many of which were subject to continuing desegregation orders. Race-restricted scholarships have been
offered to white students at historically black institutions, as well as to black students at traditionally
white institutions. For example, a federal judge in 1995 ordered two historically black institutions in
Alabama (Alabama State University and Alabama A&M University) to spend up to $1 million a year for
ten years in new state funding on scholarships for white students. The Center for Individual Rights
brought suit on behalf of non-white students, and the case was eventually merged with the state’s
broader desegregation case.
In Podberesky v. Kirwan, a white Hispanic student claimed that his ineligibility for the
University of Maryland’s Banneker Scholarship program for African-American undergraduates violated
his 14th Amendment equal protection rights and Title VI. The University had established the scholarship
program years ago as part of a desegregation compliance plan, as the state had formerly had a de jure
segregated system of higher education. The University contended that it needed the program to
overcome present effects of past discrimination, and cited minority underrepresentation and low
retention and graduation rates. The Fourth Circuit Court of Appeals held, however, that the University
failed to demonstrate a sufficient nexus between the present conditions it identified and past
discriminatory policies or practices, and that in any event the scholarship program was not narrowly
tailored to remediate the problems identified by the University. 38 F.3d 147 (4th Cir. 1994), cert. denied,
514 U.S. 1128 (1995).
If a race-targeted aid program is being justified on this basis, some key questions to consider
might include the following:

Is there specific evidence of past discrimination (e.g., in terms of policies, practices, etc.) at
the institution, rather than simply in society at large?

Is there specific evidence of present effects of discrimination at the institution, rather than
simply in society at large (as opposed to general concerns about underrepresentation or a
racially hostile climate mirroring larger societal conditions, for example)?
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
Is there some demonstrable nexus between the present effects and the past discrimination?

What body has made the decision about the need for this form of affirmative action?
Principle 4: Financial Aid To Create Diversity
A college should have substantial discretion to weigh many factors—including race and national
origin—in its efforts to attract and retain a student population of many different experiences,
opinions, backgrounds, and cultures—provided that the use of race or national origin is
consistent with the constitutional standards reflected in Title VI, i.e., that it is a narrowly
tailored means to achieve the goal of a diverse student body. 59 Fed. Reg. at 8757.
This principle reflects the diversity rationale outlined by Justice Powell in Regents of the
University of California v. Bakke, 438 U.S. 265 (1978). Justice Powell noted that colleges have a First
Amendment right to seek diversity in admissions to fulfill their academic mission through the “robust
exchange of ideas” that flows from a diverse student body. Id. at 312-13. The Department noted in its
guidance that race-targeted financial aid is not the same as race-conscious affirmative action in
admissions, because (among other reasons) financial aid does not involve a finite, set number of places,
and the availability of such financial aid might actually increase the total pool of financial aid available
to all students.
Some key questions to consider include the following:

Has the institution articulated an interest in diversity (e.g., as part of its mission statement)?
Does this interest vary within or among the institution’s various components (e.g., undergraduate
and graduate schools)?

Has the institution developed any evidence of the educational benefits of diversity on its own
campus (e.g., through survey information from its students, faculty, or alumni)?

What groups are considered for purposes of race-conscious financial aid? Are there articulated
reasons for the inclusion of some groups and not others? Is there any reason to subdivide certain
categories (e.g., Asian-Americans) in light of institutional needs and demographics?

How is the issue of “mixed race” handled?
Narrow Tailoring
This section of the guidance also provides information about the factors that should be taken into
account in ensuring that a program is narrowly tailored to meet the stated goal.
Among the considerations that affect a determination of whether awarding race-targeted
financial aid is narrowly tailored to the goal of diversity are (1) whether race-neutral means of
achieving that goal have been or would be ineffective; (2) whether a less extensive or intrusive
use of race or national origin in awarding financial aid as a means of achieving that goal has been
or would be ineffective; (3) whether the use of race or national origin is of limited extent and
duration and is applied in a flexible manner; (4) whether the institution regularly reexamines its
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use of race or national origin in awarding financial aid to determine whether it is still necessary
to achieve its goal; and (5) whether the effect of the use of race or national origin on students
who are not beneficiaries of that use is sufficiently small and diffuse so as not to create an undue
burden on their opportunity to receive financial aid.
59 Fed. Reg. at 8757. In a number of recent cases, courts have focused on the narrow tailoring issue in
scrutinizing programs--rather than the more fundamental question of whether the diversity rationale
articulated by Justice Powell constitutes a compelling interest.
In determining whether a program is narrowly tailored to achieve a compelling interest in
diversity, some questions to consider might include the following:

Has the institution considered race-neutral means to achieve its stated goals? Have such
means actually been tried, or at least analyzed and determined to be not sufficiently
effective?

Is the institution also making other types of efforts to reach its goals (e.g., in terms of
outreach, recruiting, etc.)?

To what extent is race considered as a factor (e.g., is it a “plus” factor or an exclusive
criterion)?

Are other factors also considered in terms of diversity that contributes to the robust exchange
of ideas (e.g., geography, special skills and talents, socioeconomic status, disadvantaged
backgrounds, etc.)?

Is the program regularly reevaluated for its impact and effectiveness, in light of changes in
institutional needs, admissions or student body demographics, yields, etc.?

Is the program flexible enough so as to allow for the consideration of exceptions or special
circumstances (e.g., are white students from disadvantaged backgrounds ever considered)?

Does the program rely upon general goals rather than quotas?

How does the race-targeted financial aid available compare with the amount of overall
financial aid available, taking into account the various types of financial aid (grants, loans,
work-study, etc.)?
Principle 5: Private Gifts Restricted by Race or National Origin
Title VI does not prohibit an individual or an organization that is not a recipient of Federal
financial assistance from directly giving scholarships or other forms of financial aid to students
based on their race or national origin. Title VI simply does not apply. Id.
This principle reflects the limitations on the reach of Title VI, which applies to entities that are
recipients of Federal financial assistance (i.e., almost all colleges and universities). If a college or
university is involved directly in administering a financial aid program, however, or provides significant
assistance to an outside program—even if that program is funded by external sources—then Title VI
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might still apply. For example, in 1997 the Office for Civil Rights decided that privately funded
scholarships at Northern Virginia Community College ran afoul of Title VI in part because the
scholarships were administered by a foundation, located at the college, that college officials had created
to support the institution. See Healy, Patrick, “Education Department Sends Strong Warning on RaceExclusive Scholarships,” The Chronicle of Higher Education (Oct. 31, 1997).
In determining whether a privately funded program might nevertheless fall within the ambit of
Title VI, some key questions to ask might include the following:

To what extent is the institution involved in administering, or providing significant assistance to,
the privately funded program?

Does the institution set the criteria for, or select the recipients of, the privately funded aid?

Does the institution provide resources or information to the private program that it does not
generally make available to other outside providers of financial aid?
Financial Aid at Historically Black Colleges and Universities
The policy guidance includes additional guidance indicating that historically black colleges and
universities (HBCUs) may participate in student aid programs established by third parties for black
students that are not limited to students at the HBCUs (e.g., the National Achievement Program), and
that HBCUs may use their own institutional funds in those programs if necessary for participation. 59
Fed. Reg. at 8763. This provision is intended to ensure that the policy guidance does not subvert
congressional efforts to enhance HBCUs in light of their historical role in American higher education.
III.
Beyond Admissions and Financial Aid: Other Types of Programs
The principles applicable to admissions and financial aid can also apply to other types of
educational programs and activities in which race or national origin is considered as a factor for
participation. For example, the consideration of race for participation in mentoring or tutoring
programs, summer camps, or special orientation programs may be subject to strict scrutiny if such
programs are characterized as educational programs in and of themselves (rather than mere forms of
outreach for admissions, for example). The Center for Individual Rights (CIR) has asserted that such
programs are subject to the same sorts of legal challenges as admissions and financial aid programs. See
Racial Preferences in Higher Education: The Rights of College Students—A Handbook (Center for
Individual Rights, 1998). For example, CIR supported a white female plaintiff who challenged a federal
summer science camp program at Texas A&M University. The program was sponsored by the National
Institutes of Health (NIH) and the Department of Agriculture (USDA) and aimed to attract more
minorities into biomedicine and health careers. In 1997, NIH and USDA settled the case and agreed to
abandon all criteria based on race or ethnicity. A similar case against the National Science Foundation
involving a science camp at the same university was settled in 1996, and NSF has since changed the
focus to disadvantaged students.
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SOME ADDITIONAL RESOURCES
Alger, Jonathan R., “Unfinished Homework for Universities: Making the Case for Affirmative Action,”
54 Washington University Journal of Urban and Contemporary Law 73 (1998).
Baida, Andrew, “Not All Minority Scholarships Are Created Equal: Why Some May be More
Constitutional Than Others,” 18 Journal of College and University Law 333 (1992).
Baida, Andrew, “Not All Minority Scholarships Are Created Equal, Part II: How to Develop a Record
That Passes Constitutional Scrutiny,” 21 Journal of College and University Law 307 (1994).
Coleman, Arthur L., “Diversity in Higher Education: A Strategic Planning and Policy Manual,” The
College Board (2001).
Garfield, Leslie Yalof, “Squaring Affirmative Action Admissions Policies With Federal Judicial
Guidelines: A Model for the Twenty-First Century,” 22 Journal of College and University Law 895
(1996).
Heffernan, Elizabeth B., and Bazluke, Francine T., Minority-Targeted Admissions and Financial Aid
Programs, National Association of College and University Attorneys, pamphlet (1996).
Landsberg, Brian K., “Balanced Scholarship and Racial Balance,” 30 Wake Forest Law Review 819
(Winter 1995).
Liu, Goodwin, “Affirmative Action in Higher Education: The Diversity Rationale and the Compelling
Interest Test,” Harvard Civil Rights-Civil Liberties Law Review 381 (1998).
“Nondiscrimination in Federally Assisted Programs; Title VI of the Civil Rights Act of 1964; Notice of
final policy guidance;” 59 Fed. Reg. 8756 (Feb. 23, 1994) (policy guidance from the U.S. Department of
Education on race-targeted financial aid).
Thro, William E., “The Constitutional Problem of Race-Based Scholarships and a Practical Solution,”
111 Education Law Reporter 625 (1996).
Whitman, Robert S., “Affirmative Action on Campus: The Legal and Practical Challenges,” 24 Journal
of College and University Law 637 (Spring 1998).
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