What Now? The Michigan Cases (2004)

What Now? The Michigan Cases and the Future of Affirmative Action in Higher Education
By Ann D. Springer, AAUP Associate Counsel

I. Legal Background

The law of affirmative action in admissions is based on the 14th Amendment to the Constitution, federal statues, and case law.

A. The 14th Amendment to the Constitution provides that "[n]o State shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws."

1. Under the 14th Amendment, consideration of race or national origin is subject to "strict scrutiny," which requires that policies be "narrowly tailored" to achieve a "compelling government interest."

a. "We apply strict scrutiny to smoke out illegitimate uses of race by assuring that government is pursuing a goal important enough to warrant use of a highly suspect tool." Grutter v. Bollinger, 123 S. Ct. 2325, 2338 (2003).

2. One major area of debate has been what constitutes a "compelling interest." Compelling interests recognized under the law have included remedying the present effects of past discrimination and the attainment of a diverse student body to further the "robust exchange of ideas" on campus. See Justice Powell's opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978); Grutter v. Bollinger, 123 S. Ct. 2325 (2003); Gratz v. Bollinger, 123 S. Ct. 2411 (2003).

a. Remediation of past discrimination: Involves remediation of the present effects of past discrimination at that institution, thus it requires an admission of guilt specific to that institution.

b. Diversity

i. Based on the argument that a diverse student body is an important part of the "robust exchange of ideas," and that an institution, and the faculty who help run it, must be able to decide "for itself on academic grounds, who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Regents of the University of California v. Bakke, 438 U.S. 265, 311-12 (1978)(quoting Sweezy v. New Hampshire, 354 U. S. 234 (1957)).

ii. Used more frequently by colleges and universities because it is premised on a positive need for the consideration of race and national origin that contributes to the educational mission, and because it does not require institutions to admit to past discrimination.

3. Even if a compelling interest is shown, to pass constitutional muster an affirmative action plan must be "narrowly tailored." For an affirmative action program to be "narrowly tailored" under the law, the following factors must be considered: (1) the efficacy of alternative, "less intrusive" race-neutral approaches; (2) the extent, duration, and flexibility of race-conscious considerations; and (3) the burden on those who do not receive the benefit of any consideration of race. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S 469 (1989); Wigand v. Jackson Bd. of Educ., 476 U.S. 267 (1986).

a. "[This careful review is the only way to] determine what classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Grutter, 123 S. Ct. at 2338.

B. Regents of the University of California v. Bakke, 438 U.S. 265 (1978): For 25 years, Bakke was the hotly debated precedent governing affirmative action in admissions. Bakke involved a challenge to admissions policies at the Medical School of the University of California. Justice Powell, speaking for a highly divided court, interpreted the 14th Amendment to the Constitution to find that racial and ethnic classifications are inherently suspect and call for exacting judicial scrutiny. He also held that the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions in some circumstances, but found that the California program's use of specific quotas went too far.

1. Ever since Justice Powell stated that a university could take race into account as one among a number of factors in student admissions for the purpose of achieving student body diversity, affirmative action programs in student admissions and financial aid, as well as in faculty employment, have largely been based on diversity. In the last decade, however, numerous challenges to affirmative action programs led to great debates over the true meaning of Powell's opinion, and resulted in the return of this issue to the Supreme Court 25 years later in the Michigan cases.

C. Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, prohibits race and national origin discrimination by recipients of federal financial assistance, which is almost all institutions. (For the regulations issued by the Department of Education implementing Title VI, see 34 C.F.R. Part 100.

http://www.ed.gov/policy/rights/reg/ocr/34cfr100.pdf) . The Supreme Court held in the Michigan cases that the standards for analysis of Title VI are the same as those under the 14th Amendment to the Constitution. Thus the Michigan decisions, and the standards applied under the 14th Amendment, affect public and private institutions alike.

II. The Michigan Cases: General Background

A. History: Two class action lawsuits filed by the Center for Individual Rights (CIR) on behalf of white students denied admission to the University of Michigan's undergraduate (Gratz) and law school (Grutter) programs, alleging that the University makes race too large a factor in admissions in violation of the Constitution. The University argued that its use of race as a "plus" factor in admissions serves the compelling state interest of diversity in higher education and is therefore constitutionally valid.

1. The University of Michigan is a highly selective public institution founded in 1817. At the time of the lawsuits, its undergraduate admissions system awarded points to applicants for academic and non-academic factors, including race. Race was one of the many "plus" factors for which applicants were awarded points. Its law school admissions program did not have the same specific point system, but also treated race as one plus factor among many, and sought to enroll a "critical mass" of students from underrepresented minority groups in order to achieve the educational benefits of diversity. The state's efforts had been quite successful in increasing minority representation within its programs over the past decade or so.

2. The Center for Individual Rights ("CIR") is a Washington, DC based public policy law firm whose founders envisioned it as a conservative version of the ACLU. It was founded in 1989 and has been conducting a nationwide campaign of lawsuits to dismantle affirmative action. CIR also represented plaintiffs in cases in Texas and Washington, and is now proceeding on cases against other forms of affirmative action.

3. Additional Parties: The Intervenors: The University of Michigan is a public institution in a state with no history of de jure segregation. It therefore relied on the diversity argument as its compelling state interest. However, the Sixth Circuit ruled that black and Hispanic students could intervene in the lawsuits to argue that the university needs affirmative-action policies in place to remedy its own racial discrimination (an argument disputed by the University itself). The intervenors were therefore considered a separate party, and filed their own briefs and made separate arguments.

III. The Michigan Cases: What the Court Decided

The Court was faced with deciding (a) whether the educational benefits of diversity, and the need to defer to educators on educational judgments, constituted a sufficiently compelling state interest to justify racial preferences in admissions, and (b) if so, how such admissions plans could be constitutionally structured.

A. Diversity as Compelling Interest: The Court concluded that diversity was a compelling state interest because of its educational benefits. This decision was supported by, and clearly heavily influenced by, the wealth of social science research, data and experiential testimony provided by the university and its many amici.

1. The Court's decision was based on constitutional principles of academic freedom in higher education, and the deference to the "educational judgment" of educators.

2. The Grutter majority opinion affirmed that "given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." Recognizing the Court's "tradition of giving a degree of deference to a university's academic decisions," Justice O'Connor went on to conclude that "good faith on the part of a university is presumed absent a showing to the contrary." Grutter, 123 S.Ct. at 2339

3. The Court specifically noted that "the Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer," Grutter, 123 S.Ct. at 2339, and made clear that educational diversity must be the substantial motivating factor in any affirmative action admissions program.

4. Context: The Court held that context matters, and is important to finding diversity to be a compelling interest. Education is different than other contexts, and the role of universities in preparing future generations of leaders, and in educating students to function in a global, diverse economy played an important part in the Court's finding that diversity was a compelling interest.

a. "[I]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity." Grutter, 123 S.Ct. at 2363.

B. Narrow Tailoring: The court found Michigan's law school admissions program to be sufficiently narrowly tailored, even with its consideration of a critical mass, but struck down the undergraduate policy, which gave an automatic 20 points for race. The Court discussed many different elements of a sufficiently narrowly tailored policy:

1. Race may be considered as one of many plus factors.

2. The Court stressed the need for individualized review. The undergraduate program of awarding points based on race (among many other things) was seen as not sufficiently individualized. All pertinent elements of diversity must be considered. The Court ruled out quotas or separate tracks for different applicants as impermissible approaches.

3. Numbers can be considered to some extent, as the Law School's argument that it was necessary to enroll a "critical mass" of minority students (to achieve the educational benefits of diversity and to ensure that a few minority students didn't end up being token representatives of their race) was seen as a flexible goal, not a quota. Having a reasonable goal of minority admissions numbers is permissible, as long as it does not automatically require anyone's admission or rejection.

4. Race neutral alternatives: While the Court endorsed the importance of considering race neutral alternative methods of achieving diversity, it did not require that every race neutral alternative be exhausted, as some had feared.

a. Narrow tailoring requires "serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks." Grutter, 123 S.Ct. at 2345.

b. BUT, colleges and universities need not "choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups." Grutter, 123 S.Ct. at 2344

c. The Court also recognized that percentage plans—plans that attempt to achieve diversity by mandating admission of the top x percent of the high school class in every state high school—are flawed in many ways and may not themselves be race neutral.

5. Admissions programs must be flexible and consider how each applicant can contribute to diversity in order to be individualized, and to reduce the burden on non-minority students. The Court spoke against limiting the broad range of qualities and experiences that may be considered valuable contributions to student body diversity.

a. The administrative burden of such flexibility and individualized review is seen as irrelevant to the constitutionality of the program.

6. Time limitation: The Court also stated an expectation that affirmative action programs won't be needed in 25 years, and that programs in effect now should be time limited.

IV. How to Create a Constitutional Policy

A. The Court deferred to the judgment of educators in finding diversity to be a compelling interest. In moving forward, administrations and faculty must work together to ensure that affirmative action programs are firmly based on sound educational judgment and have a well-established and-documented educational basis for their existence.

B. Whether a policy is constitutional depends both on what it says and how it is applied. The constitutionality of individual policies will depend heavily on the specific facts and on the particular context. There is no one clear roadmap that can guarantee a lawful policy, but certain considerations will clearly play an important role and should be taken into account.

C. A committee of faculty and administrators should review admissions policies, and revise as necessary.

1. Justice O'Connor noted with approbation that a faculty committee crafted the admissions policy in Grutter, that it became the official policy upon unanimous adoption by the entire law school faculty, and that the policy was focused on evaluating applicants with an eye toward their "potential to contribute to the learning of those around them."

2. Faculty involvement is central to the educational validity of policies basing affirmative action on the educational diversity rationale.

3. Make sure the committee is knowledgeable on diversity issues, and considers the research and literature on diversity.

D. The admissions policy should specifically state that student body diversity is a justification for the consideration of race, and clearly connect student body diversity to the institution's mission.

1. educational goals that are specific to the mission of the university and include diversity related interests are good support for race-conscious policies.

2. Make sure that race conscious policies put in place as part of this process do actually advance diversity related goals.

E. The policy should not exempt any applicant from comparison to other applicants simply because of race. Give all applicants an opportunity to highlight their own potential diversity contributions, and don't automatically admit or not admit based on a single factor.

1. You can, however, have a predetermined admit and reject cutoff, and do a review of everyone in between, as long as the lines are drawn on the basis of non protected characteristics.

F. Consideration of applicants must be "truly individualized," and there must be a "highly individualized, holistic review."

1. When race is used as a "plus" factor, it must be done in a flexible and non-mechanical way. Each applicant has to be evaluated as an individual and not in a way that makes his or her race the defining feature of the application.

G. Other diversity factors: Institutions should give "substantial weight" to diversity factors beyond race, which likely means admitting a substantial number of students on diversity factors other than race. The Court required that schools "sufficiently take into account a wide variety of characteristics besides race and ethnicity." Grutter, 123 S.Ct. at 2344.

1. Good evidence of this is the acceptance of a significant number of nonminority applicants with grades and test scores lower than underrepresented minority applicants.

H. Time limitations: Policies should recognize that they are temporary measures, and have sunset provisions and periodic review to ensure that they are still necessary.

I. The institution should also document its consideration of any race neutral alternatives. Schools need not consider every race neutral alternative, but should document as much as possible their consideration of some alternatives and the reasons the alternatives are insufficient. Speak particularly to the alternative's impact, or lack thereof, on diversity and access, impact on quality of education, and practicality.

1. Remember that many so called "race neutral" policies have the effect of favoring majority applicants. For example, preferences to alumni children, reliance on test scores where tests show racial imbalances, reliance on AP scores, etc.

J. Evidence:

1. Michigan presented reams of social science research supporting the argument that diversity is essential to quality education. In all the court cases, and in all the papers filed before the Supreme Court, none of the plaintiffs were able to establish that diversity did not have an educational benefit.

2. The Court does not require the magnitude and detail of evidence submitted by Michigan; Justice O'Connor discusses the need for a "legitimate" reason to consider race, with the assumption that it is up to the opponents to show that the reason is not legitimate.

3. At the least, an institution should be able to show that educational, experiential diversity, not just racial diversity, is the basis for its policy.

a. Faculty are essential to this determination, as both researchers and teachers, they are best equipped to evaluate and support the educational judgments forming a basis for the diversity argument.

V. Institutional Responses to Gratz and Grutter

A. According to the National Association for College Admission Counseling (NACAC), only about one third of colleges and universities consider race or ethnicity as a factor in admissions decisions. "Relatively Few Colleges Use Race in Admissions Decisions, Survey Finds," The Chronicle of Higher Education (CHE), Oct. 2, 2003. However, 74% pledge a commitment to diversity in their mission statement, and use recruiting tools to try to attract a more diverse student body. Id. The survey is available at www.nacac.com/downloads/diversityreport.pdf. Those that do consider race, or wish to, have responded to the Michigan decisions in a number of ways.

B. Schools that engage in an individualized review of student admissions files, an approach that was upheld by the Supreme Court in Grutter, have recommitted to their student admissions programs. See, e.g., "New Jersey Colleges Are Relieved Their Policies Got a Passing Grade," Star-Ledger, June 24, 2003 (noting that Princeton, Rutgers and Richard Stockton College "breathed a big sigh of relief . . . that [the Court] in large part backed the way they admit their students.")

C. Those schools with automatic point systems, similar to the one struck down in Gratz, are revising their programs to ensure they employ a "holistic, individualized approach" to application review. See, e.g., "UMass and Ohio State U. Say They Will Stop Awarding Extra Points to Minority Applicants," CHE, Oct. 10, 2003. Many are now reporting, however, that they are seeing a significant drop in minority applications with the new admissions process. See, e.g., "U-M Loses Minority Applicants," The Detroit News, February 10, 2004; "Fewer Blacks Apply to OSU," Mansfield News Journal, March 12, 2004.

D. Other colleges and universities, especially those in circuits whose federal appellate court decisions were overturned by the Michigan cases, are now considering reintroducing race conscious admissions programs. "Decisions May Prompt Return of Race-Conscious Admissions at Some Colleges," CHE, July 4, 2003. Institutions in these states must now deal with changing past policies and practices and other effects of having been under differing state law for many years.

1. For example, institutions in Texas were governed by the 5th Circuit's Hopwood decision, one of the first to conclusively strike down affirmative action. Now the University of Texas is considering reinstating race conscious admissions. "UT Plans for Affirmative Action," San Antonio Express News, December 2, 2003. (This effort is further complicated by the fact that Texas now has a 10% plan in effect—begun in an attempt to counter the effects of Hopwood—that has led to overcrowding and to concerns that the top 10% of Texas high school students guaranteed admission will soon take up most all of available slots. "10 Percent Law Not Doing Good Job at UT-Austin," Austin American Statesman, May 25, 2003.). Similarly, University of Georgia officials are considering reinstituting race-conscious admissions after abandoning them when the 11th Circuit struck down Georgia's admissions policy. "UGA Faculty Leaders Say Race Should Play Role in Admissions," The Ledger-Enquirer, March 19, 2004.

E. Others—some within the same states, like Texas A&M—are taking the opposite approach, and deciding not to consider race. See, e.g., "Lawmakers Demand University Set Minority Enrollment Goals," Houston Chronicle, Dec. 8, 2003; "Texas A&M Defies Trend, Won't Use Race as Admissions Factor," Houston Chronicle, Dec. 4, 2003.

F. Schools are also under increasing pressure to re-evaluate their other admissions practices, which, while not overtly race conscious, have an effect on diversity.

1. Legacy Admissions: Offering preference to children of alumni often results in preferences for majority applicants, whose parents are much more likely to have attended college. Some institutions are therefore considering abolishing legacy systems, even though such systems provide benefits in fund raising and alumni loyalty. Those not considering race in their admissions criteria, like Texas A&M, are under particular political pressure to eliminate programs like legacies. See, e.g., "Texas A&M Ends Alumni-Based Preferences for Applicants, to Assure 'Consistency' in Admissions," CHE, January 12, 2004.

2. Standardized Tests: Studies showing that standardized tests carry a racial bias have led other schools to re-evaluate their reliance on tests like the SAT and PSAT. See, e.g., "Calls to Eliminate SAT Requirement May Reshape Debate on Affirmative Action," CHE, March 2, 2001; "Nettles, Perna and Mellett, "Race and Testing in College Admissions," in Chilling Admissions: The Affirmative Action Crisis and the Search for Alternatives, The Civil Rights Project, Harvard University (Orfield and Miller, Eds. 1998).

G. Most are also continuing increased recruiting and outreach efforts begun even before the decisions were issued. This type of approach has generally been seen as the safest, effective way to increase diversity applicants. See, e.g., "KU Recruiters Seek Out More Minority Applicants," Lawrence Journal World, February 23, 2004; "A&M Initiative Aims to Attract Minorities," The Bryan-College Station Eagle, March 9, 2004.

1. But see Hi-Voltage Wire Works v. City of San Jose, 24 Cal.4th 537 (2000): This California state court case raised some concern because it questioned programs that disseminated information based solely on race as violative of Proposition 209, the California state law restricting affirmative action. The court encouraged efforts to increase minority and women's participation in government programs, but make clear that it would not uphold such efforts if they were not targeted solely on the basis of race or gender.

VI. The Legal and Political Future of Affirmative Action

A. Legal practices still vary by state:

1. State laws remain in place. The Michigan decisions do not invalidate individual state laws restricting affirmative action. See, e.g., "University Offers Rare Peek Into Admissions Process," The Daily Californian, November 13, 2003 (discussing efforts to diversify the student body at the University of California at Berkeley, despite state law prohibiting consideration of race in admissions). Such laws are in place in California (California Proposition 209, Cal. Const. Art. I, §31); Florida (One Florida Initiative, Fla. Admin. Code Ann. R. 6C-6.002(7)); and Washington (Washington State Initiative 200, Wash. Rev. Code. Ann. Ch. 49.60, notes).

2. Other states may not have restrictive laws, but were covered by appellate court decisions invalidating affirmative action made before the Supreme Court decisions. The Michigan decisions do override these lower court decisions and thus previous restrictions are lifted.

B. The Litigation Storm: Justice Scalia, in his dissent in Grutter, discussed the rash litigation likely to result from these decisions (essentially providing a road map for future challenges). It is clear that opponents of affirmative action will be making every effort to continue to use the court system to attach both the legal underpinnings and practical application of affirmative action.

1. Ongoing Litigation

a. Smith v. Univ. of Washington: This case at the University of Washington continues to wend its way through the courts. Originally brought in 1997, this claim alleges that a white woman was denied entry to the university's law school and that less qualified minority applicants were admitted over her because of the University's affirmative action policies. In 1998 voters approved a state initiative to ban race-conscious affirmative action in the public sector, and the University announced that it was taking steps to suspend the consideration of race and gender in admissions. The federal district court then held that the state initiative made much of the case moot, but that a remaining discrimination claim should be decided based on principles enunciated in the Supreme Court's 1978 Bakke decision. The decision was appealed to the Ninth Circuit, which issued a ruling upholding the district court's decision. When the Supreme Court denied the petition for certiorari, the case went back down to the district court for a decision under the law of Bakke. In 2002, the district court concluded that the Law School's admissions policies during the years in question (1994,1995,1996) were consistent with Bakke, and therefore constitutional. That decision was appealed to the Ninth Circuit again, and that Court heard argument February 11, 2004. The admissions standards in question are from long before the Michigan cases, and state law still bars the University from considering race in admissions, but the case is still being closely watched because it will now be the first appellate case to address the issue post Gratz and Grutter.

b. Worth v. Jackson: CIR filed a class action lawsuit before the Michigan decisions challenging hiring and promotion goals for women and minorities at the U.S. Department of Housing and Urban Development. The suit charges HUD and the Equal Employment Opportunity Commission with intentional race and sex discrimination in violation of the U.S. Constitution's equal protection guarantee. The district court recently concluded that the case could continue despite changes in the regulations it challenges. Worth v. Jackson, No. 02cv1576 (D.D.C. Jan. 5, 2004).

2. Post-Michigan Litigation:

a. Open Records Laws: The National Association of Scholars (NAS), CIR and others have also begun a campaign to use open records laws to challenge public colleges admission policies, issuing dozens of public records requests asking a range of questions about the colleges consideration of race neutral alternatives, weight given to race and ethnicity, data on the selection process, etc. See, e.g., "NAS Affiliates Seek Admissions Data in Twenty States," Press Release, www.nas.org; "Foes of Affirmative Action Push Colleges to Reveal Policies on Race Conscious Admissions," CHE, March 23, 2004.

b. CIR and other anti-affirmative action groups have also made clear that they will be targeting special programs like financial aid programs aimed at minorities, outreach programs at the high school level, recruitment and preparatory programs for college and graduate and professional schools, mentorship programs, summer enrichment programs, etc. (See VI below).

C. Legislative Attacks

1. Ward Connerly, architect of Proposition 209 in California, is pursuing a referendum in Michigan seeking to abolish affirmative action in the state. Mary Wiltenberg, "Affirmative Action Brews Anew in Michigan," The Christian Science Monitor, January 20, 2004; "Foes of Affirmative Action in Michigan Plan to take Their Battle to the Ballot," CHE, July 9, 2003. In late March, a state judge ruled that the petition's wording, banning "preferential treatment" on the basis of race, sex, color, ethnicity or national origin, violated state election law because it did not make clear that the proposal altered existing law and was in direct conflict with constitutional anti-discrimination protections. "Michigan Judge Rules Against Foes of Preferences Based on Race," New York Times, March 27, 2004; "Drive to put Affirmative Action on Ballot in Michigan Hits a Snag in State Court," CHE, March 29, 2004.

2. There have been indications of similar political action being planned in Arizona, Colorado, Missouri, North Dakota, Oregon, South Dakota and Utah, and there are probably others. Id.; "Affirmative Action in Higher Education After Grutter v. Bollinger and Gratz v. Bollinger," American Council on Education, September 2003.

3. Washington State legislators killed the Governor's attempt to overturn the Washington State Initiative 200, refusing to move it out of committee in an election year. "Bill to Restore Affirmative Action in Washington State Appears Dead-For Now," CHE, February 9, 2004.

4. There was also an effort made to block affirmative action indirectly, by preventing government entities in California from gathering, compiling or publishing data concerning race and ethnicity. Fortunately, California voters defeated this initiative. See, e.g. "California Upheaval," CHE, October 17, 2003; Chemerinsky, Erwin, "Why California's Racial Privacy Initiative is Unconstitutional," CNN.com, August 22, 2003.

D. Government Response:

1. The approach of government agencies post-Michigan is still somewhat unclear.

a. Civil Rights Groups have criticized the White House, and Departments of Justice and Education, for being "noticeably silent" on the impact of the Michigan cases on higher education policies, and for failing to interpret or enforce the Michigan decisions. See, e.g., "Civil Rights Group Criticizes White House as Lacking in Response to Rulings on Affirmative Action," CHE, December 10, 2003.

b. 1994 Guidelines issued by the Department of Education's Office of Civil Rights (OCR) allowing race conscious financial aid and scholarship programs are still in place, (see Sect. VII below), and the current leaders of OCR have not expressed a desire to rewrite them. However, they issued a statement saying that programs that use race or national origin as the sole eligibility criteria are "generally…extremely difficult to defend." "Not Just for Minority Students Anymore," CHE, March 19, 2004.

c. Moreover, OCR has received many complaints from conservative groups attacking minority programs (see Sect. VII below), and is reportedly investigating programs at a number of colleges. "Not Just for Minority Students Anymore," CHE, March 19, 2004; "Colleges Cut Back Minority Programs After Court Rulings," The Wall Street Journal (WSJ), December 30, 2003.

d. Colleges and universities thought they were in for another attack when they received surveys from the U.S. Commission on Civil Rights asking for detailed information on their admission programs, focusing on questions that have formed the basis for legal challenges to affirmative action. (The survey asks about issues like the justification for admissions policies on diversity, use of racial goals or quotas, efforts to identify race neutral alternatives, timeline for ceasing race conscious admissions, etc.) It turns out, however, that the Commission never discussed or approved the survey. Instead, it was sent by an assistant to Commissioner Kirsanow, a recent Bush appointee and strong opponent of affirmative action, on his own initiative. He, and the Commission, clarified that the survey was not an official act of the Commission, and that response was purely voluntary. The Commission Chairperson stated that she hoped colleges would not respond to the survey. "Affirmative-Action Survey Is Sent on Civil-Rights Panel's Letterhead, if Not Its Imprimatur," CHE, February 27, 2004; "Head of Civil-Rights Panel Denounces Affirmative-Action Policy Sent out on Panel's Letterhead," CHE, February 13, 2004.

e. OCR Report: In March 2004 OCR issued another report on "race neutral" alternatives in education. The report supplements a previous report issued shortly before the rulings in the Michigan cases. The report does not discuss the cases in any detail, but notes only that the decisions show that education leaders are committed to diversity, that the Supreme Court "affirmed its importance," and that the Supreme Court "agreed that colleges needed to undertake serious, good-faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks before turning to consideration of race in their admissions decisions." It then catalogs efforts by colleges and universities, including class-rank plans, recruitment centers in historically underrepresented areas, partnerships with local high schools, etc. The report is available at http://www.ed.gov/about/offices/list/ocr/edlite-raceneutralreport2.html.

VII. Specific Issues Regarding Race-Conscious Scholarships/Programs:

A. The next battleground:

1. Race based financial aid, scholarships, and other enrichment programs have become the next affirmative action battleground. The legal status of special programs designed to increase the pool of minorities qualified and financially able to attend prestigious colleges is up in the air. There are a wide variety of such programs, including specific scholarships to minority students or race-based financial aid, and programs like internships, research fellowships, enrichment programs, orientation programs and summer camps.

2. The viability of such programs could have an even greater impact on minority college admission than the issue of race-based admissions, as many more schools have students who are beneficiaries of some sort of race-conscious financial aid than have race-conscious admissions policies. "Court Rulings May Open the Door for More Use of Race in Student Aid," CHE, July 4, 2003. While only a third of American colleges consider race or ethnicity as a factor in admissions decisions, 74% pledge a commitment to diversity in their mission statement, and use recruiting tools to try to attract a more diverse student body. NACAC Survey, infra. Sect. V. A 1994 report (the most recent available) from the federal General Accounting Office found that two thirds of colleges award at least one minority scholarship (available at www.gao.gov); "Colleges Cut Back Minority Programs After Court Rulings," WSJ, December 30, 2003.

B. Legal Argument:

1. The history of the legal validity of such programs has been a tortured one. The Fourth Circuit ruled on this issue in 1992 in Podberesky v. Kirwan, 956 F.2d 52 (4th Cir. 1992), on remand, 838 F. Supp. 1075 (D. Md. 1993), vacated 38 F.3d 147 (4th Cir. 1994), reh'g en banc, 46 F.3d 5 (4th Cir. 1994), cert. denied, 514 U.S. 1128 (1995). In that case a Hispanic student challenged a merit-based scholarship program for African-American students. The University established the plan as part of a desegregation plan to comply with the Civil Rights Act of 1964 and as a way to attract and retain minority students. The court held that race-conscious remedial measures are constitutional only if there is strong evidence that remedial action is necessary, and that the action is narrowly tailored to meet the remedial goal. While the University argued that the program was designed to remedy past discrimination, the court disagreed, and held that program was not narrowly tailored. The court ruled that it is not permissible for a college to rely on a poor reputation in the minority community or a racially hostile environment to show that the effects of prior discrimination are continuing, unless the college shows that this environment was caused by its own past actions and is not the result of general societal discrimination.

2. Many argue, however, that the Michigan cases overrule Podberesky. Because the Michigan cases made clear that diversity could serve as a compelling justification for race conscious programs, such programs are arguably no longer restricted to the remedial rationale. Thus race conscious scholarship and other programs would be constitutional as long as those programs are designed to foster diversity in education and are tied to an institution's educational goals and missions. Moreover, the Grutter court's deference to educational judgment also arguably allows colleges and universities greater flexibility in crafting and establishing the need for such programs. See, e.g., "Court Rulings May Open the Door for More Use of Race in Student Aid," CHE, July 4, 2003; Arthur Coleman and Scott Palmer, Dimensions of Diversity: Legal Lessons from the United States Supreme Court's University of Michigan Decisions, 7:3 Diversity Digest 8 (2003); "Affirmative Action in Higher Education After Grutter v. Bollinger and Gratz v. Bollinger," American Council on Education, September 2003.

3. Others point out, however, that the Court also held that diversity considerations must be individual, and consider each applicant's true contribution to diversity, rather than have an automatic or mechanized benefit for race. Under this argument, programs open only to certain racial or ethnic groups are unconstitutional under Gratz and Grutter. Many institutional general counsels have recently changed or discontinued programs based on this analysis. (See Section D.1. below.)

4. Race conscious financial aid is also governed by regulations put out by OCR at about the same time as the Podberesky ruling. Dept. of Education Final Policy Guidance on Title VI of the Civil Rights Act of 1964 and its implementing regulations, 59 Fed. Reg. 8756, February 23, 1994. www.ed.gov/policy/rights/reg/ocr/edlite-34cfr100.html. These regulations allowed federally funded colleges to use financial aid to promote diversity and access of minority students, and are seen as more favorable to minority scholarships than those previously in effect.

a. The Bush administration has not changed these regulations. However, a spokesman for the Education Department recently stated that "Generally, programs that use race or national origin as sole eligibility criteria are extremely difficult to defend." ("Dozens of Colleges May Soon Face New Federal Inquiries Over Race-Specific Programs," CHE, February 27, 2003.)

5. State laws restricting use of affirmative action will also affect these types of affirmative action programs, so what might be permissible in one state might not be in another.

C. Under Attack:

1. Three conservative advocacy organizations, CIR, the American Civil Rights Institute (ACRI) and NAS, are making concerted efforts to find and challenge college programs that serve members of specified minority groups. The organizations have sent letters to numerous institutions complaining about particular race conscious programs. If the institutions don't change their criteria in response to these demands, the organizations file complaints with OCR. "Harvard Business School Opens Summer Program to White and Asian Students in Response to Complaint," CHE, February 18, 2004; "Colleges Cut Back Minority Programs After Court Rulings," WSJ, December 30, 2003; Kendra Hamilton, "Truth and Consequences," Black Issues in Higher Education 21 (Sept. 25, 2003); "Court Rulings May Open the Door for More Use of Race in Student Aid," CHE, July 4, 2003. Numerous institutions have changed their criteria, and complaints are still pending against others. Id.

2. A number of institutions have preemptively decided to stop offering such programs, or to change their criteria, some even before the Supreme Court ruled on the Michigan cases. For example, public institutions in Massachusetts, Minnesota, Colorado, Virginia, Florida, Georgia and other private and public universities have either reconsidered, modified or abandoned such programs. See, e.g., "Colleges Rethinking Minority Orientation," The Boston Globe, September 8, 2003; "Harvard Business School Revises Criteria to Summer Program," The Boston Globe, February 17, 2004. Others, like Iowa State University, Seton Hall, and Pepperdine are standing firm, insisting that their programs are constitutional. "Not Just for Minority Students Anymore," CHE, March 19, 2004.

D. Specific Programs Beyond Financial Aid/Scholarships

1. Minority Orientation Programs: Orientation programs are arguably easier to defend legally because they focus on increasing comfort level, discussion and bonding, rather than providing more concrete benefits. These programs too are under attack, however, and despite their defensibility, many schools have discontinued them or opened them up to all first year students. See, e.g., "Yale U. Opens an Orientation Program, Formerly for Minority Students Only, to All Freshmen," CHE, February 25, 2004; "Colleges Cut Back Minority Programs After Court Rulings," WSJ, December 30, 2003; "Colleges Rethinking Minority Orientation," The Boston Globe, September 8, 2003.

2. Minority Job Fairs: The Center for Equal Opportunity (CEO) and NAS have also indicated that they will be challenging any institutions offering minority job fairs. They have indicated that they intend to demand that institutions eliminate all such programs, because they argue that minority job fairs violate Title VI and VII. Institutions who have such fairs may thus be subjected to enquiries or an investigation by the EEOC or the Department of Education.

3. In addition to higher education institutions, disciplinary associations, foundations and others are reviewing their programs, and many are choosing to close them down rather than risk getting into a legal fight. See, e.g., www.lawandsociety.org ("Notice: The previously announced Law and Society Association / National Science Foundation Minority Pre-Dissertation Fellowship and Mentoring Program has been cancelled due to concerns that have been raised about the constitutionality of the race-exclusive eligibility requirements."). The National Merit Scholarship Corporation and The Andrew Mellon Foundation have all made similar changes. Other non-profits are standing firm, like the United Negro College Fund and the National Action Council for Minorities in Engineering. "Not Just for Minority Students Anymore," CHE, March 19, 2004.

4. Federal Government Programs: Federal programs, many of which had required grantees to reach out to underrepresented minorities, are now changing their policies, or their definition of underrepresented. Such changes have been made, for example, at the National Institutions of Health, National Cancer Institutive, National Science Foundation, and others. "Not Just for Minority Students Anymore," CHE, March 19, 2004.

5. Whites Only Programs: Some campus conservatives are initiating their own "whites-only" scholarship programs in the hopes, apparently, that the programs will be struck down as illegal and so, too, will minority only scholarship programs. See "Student Group Offers Whites-Only Scholarship," Wash. Post A7, February 16, 2004; "Texas Tech Student Announces 'United White Persons College Fund,'" CHE, February 26, 2003.

E. Future of Race Conscious Programs:

1. The legality and future of race conscious programs is still very much in flux. In the next few years, the outcomes of OCR investigations, the inevitable law suits, and assessments of whether those programs that have changed their rules or criteria can continue to make a difference in diversifying campuses and programs will all play a role in the evolution of attempts to target such efforts.

2. Legal evaluation of programs will be highly fact specific, and will depend to some extent on the amount of "state action" involved in the program. Programs funded and run by colleges and universities will be analyzed differently than those funded privately, or administered and funded privately.

3. Legal analysis will also, at least until more specific court decisions come out, closely track the Grutter decision. Thus programs will need to be carefully tied to the mission of the school, have sound pedagogical purposes, and be narrowly tailored to meet their stated goals. (See supra section IV).

4. Faculty and administration need to work together to carefully review race conscious programs, and assure that their purposes are clearly derived from or tied to the attraction, retention and support of a diverse student body, and to articulate why that diversity is important. See Robinson, Dorothy, "Race Sensitive Programs After the Michigan Decisions," Trusteeship 37 (September/October 2003).

a. This will be especially challenging, and important, in those programs focused on a specific field of study (for example, women and minorities in the sciences). Program descriptions should clearly articulate why diversity enhancement in that area is particularly important.

VIII. Resources

Following is a list of resources helpful in this area. For additional resources on these and a wide range of diversity issues, see Resource Guide to Diversity in Education, compiled and maintained by the AAUP Committee on HBCUs and Scholars of Color.

Affirmative Action in Higher Education: A Report by the Council Committee on Discrimination, AAUP Policy Documents & Reports 193, 194 (9th ed. 2001).

Affirmative-Action Plans: Recommended Procedures for Increasing the Number of Minority Persons and Women on College and University Faculties, AAUP Policy Documents & Reports 201 (9th ed. 2001).

"Affirmative Action in Higher Education After Grutter v. Bollinger and Gratz v. Bollinger," American Council on Education, September 2003. http://www.acenet.edu/washington/affirmative_action/2003/MichWP.pdf

Alger, Jonathan R., Unfinished Homework for Universities: Making the Case for Affirmative Action, 54 Washington University Journal of Urban and Contemporary Law 73 (1998).

Bok, Derek. "The Uncertain Future of Race-Sensitive Admissions," Revised Draft, January 20, 2003 (Posted on the National Association of College and University Attorneys website at http://www.nacua.org/documents/Unceratin_Future_of_Race_Sensitive_Admissions_Revised.pdf) (An excellent discussion of many of the issues surrounding affirmative action and admissions).

Coleman, Arthur L., Diversity in Higher Education: A Strategic Planning and Policy Manual, The College Board (2001).

Diversity Web: http://www.diversityweb.org/ (University of Maryland & Association of American Colleges and Universities).

Does Diversity Make a Difference? Three Research Studies on Diversity in College Classrooms, American Council on Education & American Association of University Professors (2000).

Minorities in Higher Education, American Council on Education (an annual report).

Springer, Ann D. "Affirming Diversity at Michigan," Academe (September/October 2003)

Springer, Ann D. and Baez, Benjamin, "Counterpoint: Affirmative Action is Not Discrimination." CHE, December 6, 2002: B17.

Springer, Ann D., Update on Affirmative Action in Higher Education: A Current Legal Overview

University of Michigan Website on Affirmative Action Admissions Cases (http://www.umich.edu/~urel/admissions/) (This website contains a wealth of information, including all of the legal filings in the cases, most of the amicus briefs, and references to resources and research on all related issues.)

Whitman, Robert S., Affirmative Action on Campus: The Legal and Practical Challenges, 24 Journal of College and University Law 637 (Spring 1998).