Order Code RL30410
CRS Report for Congress
Received through the CRS Web
Affirmative Action and Diversity
in Public Education —
Legal Developments
Updated April 26, 2006
Charles V. Dale
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Affirmative Action and Diversity in Public Education —
Legal Developments
Summary
Nearly a quarter century after the Supreme Court ruling in Regents of the
University of California v. Bakke, the diversity rationale for affirmative action in
public education remains a topic of political and legal controversy. Many colleges
and universities have implemented affirmative action policies not only to remedy past
discrimination, but also to achieve a racially and ethnically diverse student body or
faculty. Justice Powell, in his opinion for the Bakke Court, stated that the attainment
of a diverse student body is “a constitutionally permissible goal for an institution of
higher education,” noting that “[t]he atmosphere of ‘speculation, experiment, and
creation’ so essential to the quality of higher education is widely believed to be
promoted by a diverse student body.” In recent years, however, federal courts
began to question the Powell rationale, unsettling expectations about the
constitutionality of diversity-based affirmative action in educational admissions and
faculty hiring.
In striking down the admissions process at the University of Texas School of
Law, the Fifth Circuit in Hopwood v. Texas concluded that any use of race in the
admissions process was forbidden by the Constitution. Siding with Hopwood was
the Eleventh Circuit, in Johnson v. Board of Regents, which voided a numerical
“racial bonus” awarded to minority applicants for freshman admission at the
University of Georgia. A circuit court conflict was created, however, when the Ninth
Circuit relied on Bakke to uphold an affirmative action admissions policy to the
University of Washington Law School that made extensive use of race-based factors.
The judicial divide over Bakke’s legacy widened with the opposing decisions of two
federal districts courts in the University of Michigan cases. Gratz v. Bollinger upheld
for diversity reasons the race-based undergraduate admissions program, while the
trial judge in Grutter v. Bollinger voided the Michigan Law School’s student
diversity policy. The Sixth Circuit reversed in Grutter, but before it could act in
Gratz, the Supreme Court agreed to review both the Michigan undergraduate and law
school admissions policies.
The Supreme Court handed down its decisions on June 22, 2003. In Grutter v.
Bollinger, a 5 to 4 majority of the Justices held that the University Law School had
a “compelling” interest in the “educational benefits that flow from a diverse student
body,” which justified its race-based efforts to assemble a “critical mass” of
“underrepresented” minority students. But in the companion decision, Gratz v.
Bollinger, six Justices decided that the University’s policy of awarding “racial bonus
points” to minority applicants was not “narrowly tailored” enough to pass
constitutional scrutiny. The decisions resolved, for the time being, the doctrinal
muddle left in Bakke’s wake. And because the Court’s constitutional holdings
translate to the private sector under the federal civil rights laws, nonpublic schools,
colleges, and universities are likewise affected.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Recent Legal Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Student Diversity in Higher Educational Admissions . . . . . . . . . . . . . . 7
The University of Michigan Admissions Policy . . . . . . . . . . . . . . . . . . 9
Supreme Court Review of the Michigan Cases . . . . . . . . . . . . . . . . . . 10
The Justice Department’s Legal Position . . . . . . . . . . . . . . . . . . . . . . . 11
Oral Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Grutter Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Gratz Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Desegregation of Public Elementary, Secondary and Magnet Schools
(K -12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Racial Diversity in K - 12 Public Education . . . . . . . . . . . . . . . . . . . . 21
Faculty Diversity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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Affirmative Action and Diversity in Public
Education — Legal Developments
Nearly a quarter century after the Supreme Court ruling in Regents of the
University of California v. Bakke,1 the diversity rationale for affirmative action in
public education remained a topic of political and legal controversy. Many colleges
and universities established affirmative action policies not only to remedy past
discrimination, but also to achieve a racially and ethnically diverse student body or
faculty. Justice Powell, in his opinion for the Bakke Court, stated that the attainment
of a diverse student body is “a constitutionally permissible goal for an institution of
higher education,” noting that “[t]he atmosphere of ‘speculation, experiment, and
creation’ so essential to the quality of higher education is widely believed to be
promoted by a diverse student body.”
In the last decade, however, federal courts began to question the Powell
rationale, unsettling expectations about the constitutionality of diversity-based
affirmative action in educational admissions and faculty hiring decisions. In striking
down the admissions process at the University of Texas School of Law, the Fifth
Circuit in Hopwood v. Texas concluded that any use of race in the admissions process
was forbidden by the Constitution.2 Reverberations of the 1996 Hopwood opinion
are apparent in several subsequent cases, which voided “race conscious” policies
maintained by institutions of higher education as well as public elementary and
secondary schools. Some judges avoided resolving the precedential effect of Justice
Powell’s opinion by deciding the case on “narrow tailoring”or other grounds not
dependent on the constitutional status of student diversity as a compelling state
interest.3 But, in Johnson v. Board of Regents, the Eleventh Circuit sided with
1438 U.S. 265 (1978).
278 F.3d 932, 944 (5th Cir.)(“Justice Powell’s view in Bakke is not binding precedent on the
issue.”), cert. denied, 518 U.S. 1033 (1996). See also Lutheran Church-Missouri Synod v.
FCC, 141 F.3d 344, 354 (D.C.Cir. 1998)(stating, without addressing Bakke, that diversity
cannot “be elevated to the ‘compelling’ level”).
3See Brewer v. West Irondequoit Center School District, 212 F.3d 738, 747-49 (2d Cir.
2000)(noting that “there is much disagreement among the circuit courts as to . . .the state of
the law under current Supreme Court jurisprudence,” but concluding that, regardless of
Bakke, reducing racial isolation may be a compelling interest under Second Circuit
precedent); Eisenberg v. Montgomery County Public Schools, 197 F.3d 123, 130 (4th Cir.
1999)(explaining that the status of educational diversity as a compelling interest is
“unresolved,” and rather than rule on the issue, decided the case solely on narrow tailoring
grounds); Wessmann v. Gittens, 160 F.3d 790, 795, 800 (lst Cir. 1998)(While “[t]he
question of precisely what interests government may legitimately invoke to justify race-
based classifications is largely unsettled,” the court concluded defendant’s apparent interest
(continued...)

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Hopwood by rejecting diversity as constitutional justification for a numerical “racial
bonus” awarded minority freshman applicants to the University of Georgia. A circuit
court conflict was created when the Ninth Circuit relied on Bakke to uphold an
affirmative action admissions policy to the University of Washington Law School
that made extensive use of race-based factors. Smith v. University of Washington
was the first federal appeals court to rely on Justice Powell’s decision as binding
precedent on the issue.4
The judicial divide over Bakke’s legacy was vividly underscored by a pair of
separate trial court decisions, one upholding for diversity reasons the race-based
undergraduate admissions policy of the University of Michigan,5 the other voiding
a special minority law school admissions program at the same institution.6 Restoring
a degree of clarity to the law, the U.S. Supreme Court concluded its 2002-03 term
with rulings in the Michigan cases. In Grutter v. Bollinger7 a 5 to 4 majority of the
Justices held that the University Law School had a “compelling” interest in the
“educational benefits that flow from a diverse student body,” which justified its
consideration of race in admissions to assemble a “critical mass” of
“underrepresented” minority students. But in a companion decision, Gratz v.
Bollinger,8 six Justices decided that the University’s policy of awarding “racial bonus
points” to minority applicants was not “narrowly tailored” enough to pass
constitutional scrutiny.
The first part of this report briefly reviews the judicial evolution of race-based
affirmative action, particularly in relation to public education. Recent rulings
challenging the use of racial admissions and hiring practices by public educational
institutions are then considered for their implications on the future development of
affirmative action law.
3(...continued)
in “racial balancing” of the student body was neither “a legitimate [n]or necessary means
of advancing” diversity); Buchwald v. University of New Mexico School of Medicine, 159
F.3d 487, 499 (10th Cir. 1998)(noting the absence of “a clear majority opinion” in Bakke,
but according qualified immunity to defendants who relied upon that case in adopting a
preference based on durational residency); McNamara v. City of Chicago, 138 F.3d 1219,
1222 (7th Cir. 1998)(citing Bakke for statement that “whether there may be compelling
interests other than remedying past discrimination remains ‘unsettled,’” but finding
defendant’s remedial justification valid).
4Smith v. University of Washington Law School, 233 F.3d 1188, 1201 (9th Cir.
2000)(pursuant to Bakke, “educational diversity is a compelling governmental interest that
meets the demands of strict scrutiny of race conscious measures”), cert. denied, 121 S.Ct.
2192 (2001).
5Gratz v. Bollinger, 122 F.Supp.2d 811 (E.D.Mich. 2000).
6Grutter v. Bollinger, 137 F. Supp. 2d 821, 848 ( E.D. Mich. 2001)(concluding that “Bakke
does not stand for the proposition that a university’s desire to assemble a racially diverse
student body is a compelling state interest”).
7123 S.Ct 2325 (2003).
8123 S.Ct 2411 (2003).

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Introduction
The origins of affirmative action law may be traced to the early 1960’s as first,
the Warren, and then the Burger Court, grappled with the seemingly intractable
problem of racial segregation in the nation’s public schools. Judicial rulings from
this period recognized an “affirmative duty,” cast upon local school boards by the
Equal Protection Clause, to desegregate formerly “dual school” systems and to
eliminate “root and branch” the last “vestiges” of state-enforced segregation.9 These
holdings ushered in a two decade era of “massive” desegregation — first in the
South, and later the urban North — marked by federal desegregation orders
frequently requiring drastic reconfiguration of school attendance patterns along racial
lines and extensive student transportation schemes. School districts across the nation
operating under these decrees have since sought to be declared in compliance with
constitutional requirements in order to gain release from federal intervention. The
Supreme Court eventually responded by holding that judicial control of a school
system previously found guilty of intentional segregation should be relinquished if,
looking to all aspects of school operations, it appears that the district has complied
with desegregation requirements in “good faith” for a “reasonable period of time”
and has eliminated “vestiges” of past discrimination “to the extent practicable.”10
A statutory framework for affirmative action in employment and education was
enacted by the Civil Rights Act of 1964. Public and private employers with 15 or
more employees are subject to a comprehensive code of equal employment
opportunity regulations under Title VII of the 1964 Act. The Title VII remedial
scheme rests largely on judicial power to order monetary damages and injunctive
relief, including “such affirmative action as may be appropriate,”11 to make
discrimination victims whole. Except as may be imposed by court order or consent
decree to remedy past discrimination, however, there is no general statutory
obligation on employers to adopt affirmative action remedies. But the Equal
Employment Opportunity Commission has issued guidelines to protect employers
and unions from charges of “reverse discrimination” when they voluntarily take
action to correct the effects of past discrimination.12
The term “affirmative action” resurfaced in federal regulations construing the
1964 Act’s Title VI, which prohibits racial or ethnic discrimination in all federally
9See e.g. Green v. County Board, 391 U.S. 430 (1968); Swann v. Board of Education, 402
U.S. 1 (1971); Keyes v. Denver School District, 413 U.S. 189 (1973).
10Dowell v. Board of Education, 498 U.S. 237 (1991). See also Freeman v. Pitts, 503 U.S.
467 (1993)(allowing incremental dissolution of judicial control) and Missouri v. Jenkins,
515 U.S. 70 (1995)(directing district court on remand to “bear in mind that its end purpose
is not only `to remedy the violation’ to the extent practicable, but also `to restore state and
local authorities to the control of a school system that is operating in compliance with the
Constitution.’”).
1142 U.S.C. 2000e-5(g).
1229 C.F.R. Part 1608 (the guidelines state the EEOC’s position that when employers
voluntarily undertake in good faith to remedy past discrimination by race- or gender-
conscious affirmative action means, the agency will not find them liable for reverse
discrimination.)

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assisted “programs” and activities,13 including public or private educational
institutions. The Office of Civil Rights of the Department of Education interpreted
Title VI to require schools and colleges to take affirmative action to overcome the
effects of past discrimination and to encourage “voluntary affirmative action to attain
a diverse student body.”14 Another Title VI regulation permits a college or university
to take racial or national origin into account when awarding financial aid if the aid
is necessary to overcome effects of past institutional discrimination.15 Affirmative
action in higher education was before the Congress in 1998, when the full House
defeated (by a 249 to 171 vote) a bill to prohibit federal aid to colleges and
universities that consider race, ethnicity, or sex in the admission process.
The Bakke ruling in 1978 launched the contemporary constitutional debate over
state-sponsored affirmative action. A “notable lack of unanimity” was evident from
the six separate opinions filed in that case. One four-Justice plurality in Bakke voted
to strike down as a violation of Title VI a special admissions program of the
University of California at Davis medical school which set-aside sixteen of one
hundred positions in each incoming class for minority students, where the institution
itself was not shown to have discriminated in the past. Another bloc of four Justices
argued that racial classifications designed to further remedial purposes were
foreclosed neither by the Constitution nor the Civil Rights Act and would have
upheld the minority admissions quota. Justice Powell added a fifth vote to each
camp by condemning the Davis program on equal protection grounds while
endorsing the nonexclusive consideration of race as an admissions criterion to foster
student diversity.
In Justice Powell’s view, neither the state’s asserted interest in remedying
“societal discrimination,” nor of providing “role models” for minority students was
sufficiently “compelling” to warrant the use of a “suspect” racial classification in the
admission process. But the attainment of a “diverse student body” was, for Justice
Powell, “clearly a permissible goal for an institution of higher education” since
diversity of minority viewpoints furthered “academic freedom,” a “special concern
of the First Amendment.”16 Accordingly, race could be considered by a university
as a “plus” or “one element of a range of factors” — even if it “tipped the scale”
among qualified applicants — as long as it “did not insulate the individual from
comparison with all the other candidates for the available seats.”17 The “quota” in
Bakke was infirm, however, since it defined diversity only in racial terms and
absolutely excluded non-minorities from a given number of seats. By two 5-to-4
votes, therefore, the Supreme Court affirmed the lower court order admitting Bakke
but reversed the judicial ban on consideration of race in admissions.
1342 U.S.C. 2000d et seq.
1444 Fed. Reg. 58,509 (Oct. 10, 1979).
1559 Fed. Reg. 8756 (Feb. 23, 1994). See also Letter from Judith A. Winston, General
Counsel, United States Department of Education, to College and University Counsel, July
30, 1996 (reaffirming that it is permissible in appropriate circumstances for colleges and
universities to consider race in admissions decisions and granting financial aid).
16Id. at 311-12.
17Id. at 317.

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Bakke was followed by Wygant v. Jackson Board of Education,18 where a
divided Court ruled unconstitutional the provision of a collective bargaining
agreement that protected minority public school teachers from layoff at the expense
of more senior white faculty members. While holding the specific layoff preference
for minority teachers unconstitutional, seven Wygant Justices seemed to agree in
principle that a governmental employer is not prohibited by the Equal Protection
Clause from all race-conscious affirmative action to remedy its own past
discrimination. Another series of decisions approved of congressionally mandated
racial preferences to allocate the benefits of contracts on federally sponsored public
works projects,19 and in the design of certain broadcast licensing schemes,20 while
condemning similar actions taken by local governmental entities to promote public
contracting opportunities for minority entrepreneurs.21 However, in each of these
cases, the Justices failed to achieve a consensus on most issues, with bare majorities,
pluralities, or — as in Bakke — a single Justice, determining the “law” of the case.
By the mid-1980’s, the Supreme Court had approved the temporary remedial use
of race- or gender-conscious selection criteria by private employers under Title VII
of the 1964 Civil Rights Act.22 These measures were deemed a proper remedy for
“manifest racial imbalance” in “traditionally segregated” job categories, if voluntarily
adopted by the employer,23 or for entrenched patterns of “egregious and
longstanding” discrimination by the employer, if imposed by judicial decree.24 In
either circumstance, however, the Court required proof of remedial justification
rooted in the employer’s own past discrimination and its persistent workplace effects.
Thus, a “firm basis” in evidence, as revealed by a “manifest imbalance” — or
“historic,” “persistent,” and “egregious” underrepresentation — of minorities or
women in affected job categories was deemed an essential predicate to preferential
affirmative action. Second, but of equal importance, all racial preferences in
employment were to be judged in terms of their adverse impact on “identifiable” non-
minority group members. Remedies that protected minorities from layoff, for
example, were most suspect and unlikely to pass legal or constitutional muster if they
displaced more senior white workers. But the consideration of race or gender as a
“plus” factor in employment decisions, when it did not unduly hinder or “trammel”
the “legitimate expectations” of non-minority employees, won ready judicial
acceptance.25 Affirmative action preferences, however, had to be sufficiently flexible,
temporary in duration, and “narrowly tailored” to avoid becoming rigid “quotas.”
18476 U.S. 267 (1986).
19Fullilove v. Klutznick, 448 U.S. 448 (1980).
20Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990).
21City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
2242 U.S.C. §§ 2000e et seq.
23United Steelworkers v. Weber, 443 U.S. 193 (1979).
24Local 28 Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986).
25United States v. Paradise, 480 U.S. 149 (1987); Johnson v. Transportation Agency, 480
U.S. 616 (1987).

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Not until 1989, however, did a majority of the Justices resolve the proper
constitutional standard for review of governmental classifications by race enacted for
a remedial or other “benign” legislative purpose. Disputes prior to City of Richmond
v. J.A. Croson26 yielded divergent views as to whether state affirmative action
measures for the benefit of racial minorities were subject to the same “strict scrutiny”
as applied to “invidious” racial discrimination under the Equal Protection Clause, an
“intermediate” standard resembling the test for gender-based classifications, or
simple rationality. In Croson, a 5 to 4 majority settled on strict scrutiny to invalidate
a 30% set-aside of city contracts for minority-owned businesses because the program
was not “narrowly tailored” to a “compelling” governmental interest. While “race-
conscious” remedies could be legislated in response to proven past discrimination by
the affected governmental entities, “racial balancing” untailored to “specific” and
“identified” evidence of minority exclusion was impermissible. Croson suggested,
however, that because of its unique equal protection enforcement authority, a
constitutional standard more tolerant of racial line-drawing may apply to Congress.
This conclusion was reinforced a year later when, in Metro Broadcasting, Inc. v.
FCC,27 the Court upheld certain minority broadcast licensing schemes approved by
Congress to promote the “important” governmental interest in “broadcast diversity.”
The two-tiered approach to equal protection analysis of governmental
affirmative action was short-lived. In Adarand Constructors, Inc. v. Pena,28 the
Court applied “strict scrutiny” to a federal transportation program of financial
incentives for prime contractors who subcontracted to firms owned by “socially and
economically disadvantaged individuals,” defined so as to prefer members of
designated racial minorities. Although the Court refrained from deciding the
constitutional merits of the particular program before it, and remanded for further
proceedings below, it determined that all “racial classifications” by government at
any level must be justified by a “compelling governmental interest” and “narrowly
tailored” to that end. But the majority opinion, by Justice O’Connor, sought to
“dispel the notion” that “strict scrutiny is `strict in theory, but fatal in fact,’” by
acknowledging a role for Congress as architect of remedies for discrimination
nationwide. “The unhappy persistence of both the practices and lingering effects of
racial discrimination against minorities in this country is an unfortunate reality, and
the government is not disqualified from acting in response to it.” No further
guidance is provided, however, as to the scope of remedial power remaining in
congressional hands, or of the conditions required for its exercise. Bottom line,
Adarand suggests that racial preferences in federal law or policy are a remedy of last
resort and, as discussed infra, must be adequately justified and narrowly drawn to
pass constitutional muster.
The Court applied the Adarand rule in Miller v. Johnson.29 In Miller, the Court
reviewed a congressional redistricting plan for the State of Georgia. The plan,
adopted at the insistence of the Justice Department, was designed to create three
26488 U.S. 469 (1989).
27497 U.S. 547 (1990).
28515 U.S. 200 (1995).
29515 U.S. 900 (1995).

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congressional districts that had a majority of African-American residents. The Court
reversed its traditional deference to remedial race-conscious apportionment30 and
held that while race could be considered in redistricting, the Justice Department’s
policy of making race the predominant factor failed the strict scrutiny test. The
Miller holding was revisited in Bush v. Vera31 and Shaw v. Hunt,32 both of which
affirmed Miller’s essential holding by sustaining challenges to race-based
redistricting plans.
Recent Legal Developments
Student Diversity in Higher Educational Admissions.
The emphasis in Adarand on past discrimination prompted an upsurge in
judicial challenges to educational diversity as an independent justification for student
and faculty affirmative action. The notion that diversity could rise to the level of a
compelling interest in the educational setting sprang a quarter century ago from
Justice Powell’s opinion in the Bakke case. While concluding that a state medical
school could not set-aside a certain number of seats for minority applicants, Justice
Powell opined that a diverse student body may serve educators’ legitimate interest
in promoting the “robust” exchange of ideas. He cautioned, however, that “[t]he
diversity that furthers a compelling state interest encompasses a far broader array of
qualifications and characteristics of which ethnic origin is but a single though
important element.”33
Justice Powell split the difference between two four-Justice pluralities in Bakke.
One camp, led by Justice Stevens, struck down the admissions quota on statutory
civil rights grounds. Another led by Justice Brennan would have upheld the medical
school’s policy as a remedy for societal discrimination. Justice Powell held the “dual
admissions” procedure to be unconstitutional, and ordered Bakke’s admission. But,
he concluded, that the state’s interest in educational diversity could warrant
consideration of students’ race in certain circumstances. For Justice Powell, a
diverse student body fostered the “robust” exchange of ideas and academic freedom
deserving of constitutional protection.
Justice Powell’s theory of diversity as a compelling governmental interest did
not turn on race alone. He pointed with approval to the “Harvard Plan,” which
defined diversity in terms of a broad array of factors and characteristics. Thus, an
applicant’s race could be deemed a “plus” factor. It was considered on a par with
personal talents, leadership qualities, family background, or any other factor
contributing to a diverse student body. However, the race of a candidate could not
be the “sole” or “determinative” factor. No other Justice joined in the Powell opinion
30See, e.g. United Jewish Organizations, Inc. v. Carey, 430 U.S. 144, 161 (1977); Shaw v.
Reno, 509 U.S. 630, 658-75 (1993)(White J., dissenting).
31517 U.S. 952 (1996).
32517 U.S. 899 (1996).
33Bakke, 438 U.S. at 315.

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Although Justice Powell’s opinion announced the judgment of the Court, no
other Bakke Justices joined him on that point. Justice Powell ruled the “dual
admission program” at issue to be unconstitutional and the white male plaintiff
entitled to admission, while four other Justices reached the same result on statutory
rather than constitutional grounds. Another four Justice plurality concluded that the
challenged policy was lawful, but agreed with Justice Powell that the state court had
erred by holding that an applicant’s race could never be taken into account. Only
Justice Powell, therefore, expressed the view that the attainment of a diverse student
body could be a compelling state interest.
For nearly two decades, colleges and universities relied on the Powell opinion
in Bakke to support race-conscious student diversity policies. Consideration of race
in admissions, which took various forms, stood pretty much unchallenged until
Hopwood v. State of Texas.34 A panel of the Fifth Circuit repudiated the Powell
diversity rationale when it voided a special admission program of the University of
Texas law school. Unlike Bakke, the Texas program entailed no explicit racial
quota. But, in other respects, it was a classic dual track system: one standard for
blacks and Hispanics, another for everyone else, and cutoff scores for minorities were
lower. The Powell opinion was not binding precedent, the Hopwood panel ruled,
since it was not joined by any other justice. Thus, race could be considered in
admissions only to remedy past discrimination by the law school itself, which was
not shown in Hopwood.
Two other federal circuit courts, besides the Sixth Circuit Michigan case, have
looked at race-based college admissions since Bakke. Johnson v. Board of Regents35
struck down the award of “racial bonus” points to minority students as one of 12
factors — academic and nonacademic — considered for freshman admissions to the
University of Georgia. The Eleventh Circuit majority was skeptical of the Powell
opinion but did not take a stand on the diversity issue. Instead, the program failed
the second requirement of strict scrutiny. It was not “narrowly tailored.” That is, it
“mechanically awards an arbitrary ‘diversity’ bonus to each and every non-white
applicant at a decisive stage in the admissions process.” At the same time, the policy
arbitrarily limited the number of nonracial factors that could be considered, all at the
expense of white applicants, even those whose social or economic background and
personal traits would promote “experiential” diversity. On the other hand, the Ninth
Circuit upheld the minority law school admissions program at the University of
Washington on the basis of Bakke. The appeals court in Smith v. University of
Washington Law School36 concluded that the four Brennan Justices who approved
of the racial quota in Bakke “would have embraced [the diversity rationale] if need
be.” Justice Powell’s opinion thus became the “narrowest footing” for approval of
race in admission and was the “holding” of Bakke.
3495 F.3d 53 (5th Cir.), cert. denied No. 95-1773, 116 S. Ct. 2581 (1996).
35263 F.3d 1234 (11th Cir. 2001).
36233 F.3d 1188 (9th Cir. 2000).

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Post-Bakke appeals courts, guided by Marks v. United States,37 sliced and diced
the various opinions in Bakke to come up with a controlling rationale. In Marks, the
Supreme Court ruled that when a majority of Justices are unable to agree on a
controlling rationale, the holding of the Court is the position of those Justices
concurring in the judgment on the narrowest grounds. The pro-diversity circuits
concluded that the Powell opinion approving race as a “plus” factor was narrower
than the Brennan rationale, which would have upheld the race quota in Bakke on a
societal discrimination theory. The opposing circuits had generally reasoned
otherwise or concluded that the competing Bakke opinions defy rational comparison
so that absent a majority consensus, the Powell opinion was without controlling
weight. In no way bound by Bakke, Supreme Court review of the Michigan cases
augured fundamental reexamination of issues raised by that earlier precedent.
The University of Michigan Admissions Policy.
The judicial divide over the student diversity policies deepened with the
Michigan case. That case is really two cases. One federal district court in Grutter
originally struck down the student diversity policy of the University of Michigan Law
School. Another judge upheld a procedure awarding points to “underrepresented
minority” applicants to the undergraduate school.38 Based on Bakke, the Sixth
Circuit reversed Grutter and permitted the Law School to consider race in
admissions.39 The Supreme Court granted certiorari in Grutter and agreed to review
Gratz prior to judgment by the Sixth Circuit.
Undergraduate admission to the University of Michigan had been based on a
point system or “student selection index.” A total possible 150 points could be
awarded for factors, academic and otherwise, that made up the selection index.
Academic factors accounted for up to 110 points, including 12 for standardized test
performance. By comparison, 20 points could be awarded for one, but only one, of
the following: membership in an underrepresented minority group, socioeconomic
disadvantage, or athletics. Applicants could receive one to four points for “legacy”
or alumni relationships, three points for personal essay, and five points for
community leadership and service, six points for in-state residency, etc. In practice,
students at the extremes of academic performance were typically admitted or rejected
on that basis alone. But for the middle range of qualified applicants, these other
factors were often determinative. Finally, counselors could “flag” applications for
review by the Admissions Review Committee, where any factor important to the
freshman class composition — race included — was not adequately reflected in the
selection index score.
In upholding this policy, the district court in Gratz found that Bakke and the
University’s own evidence demonstrating the educational benefits of racial and ethnic
diversity established a compelling state interest. And the award of 20 points for
minority status was not a “quota” or “dual track” system, as in Bakke, but only a
37430 U.S. 188 (1977).
38Gratz v. Bollinger, 122 F. Supp. 811 (E.D. Mich. 2000).
39Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002).

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“plus factor,” to be weighed against others in the selection process. Thus, the
constitutional demand for “narrow tailoring” was satisfied. The Gratz district court
also concluded that “vigorous minority recruitment” and other race-neutral
alternatives to the current policy would not yield a “sufficiently diverse student
body.”
Generally setting the bar for admission to the Michigan Law School was a
“selection index” based on applicants’ composite LSAT score and undergraduate
GPA. A 1992 policy statement, however, made an explicit commitment to “racial
and ethnic diversity,” seeking to enroll a “critical mass” of black, Mexican-American,
and Native American students. The objective was to enroll minority students in
sufficient numbers to enable their participation in classroom discussions without
feeling “isolated or like spokesmen for their race.” To foster, “distinctive
perspectives and experiences,” admission officers consider a range of “soft variables”
— e.g. talents, interests, experiences, and “underrepresented minority” status — in
their admissions decisions. In the course of each year’s admissions process, the
record showed, minority admission rates were regularly reported to track “the racial
composition of the developing class.” The 1992 policy replaced an earlier “special
admissions program,” which set a written goal of 10-12% minority enrollment and
lower academic requirements for those groups. The district court in Grutter made
several key findings: there is a “heavy emphasis” on race in the law school
admissions process; that over a period of time (1992- 1998) minorities ranged from
11% to17% of each incoming class; and that large numbers of minority students were
admitted with index scores the same as or lower than unsuccessful white applicants.
Writing for the Sixth Circuit majority, Judge Martin adopted the Powell position
in Bakke to find that the law school had a compelling interest in achieving a racially
diverse student body, and that its admission’s policy was “narrowly tailored” to that
end. “Soft variables” were found to treat each applicant as an individual and to be
“virtually indistinguishable” from “plus factors” and the Harvard Plan approved by
Justice Powell in Bakke. The law school’s policy “did not set-aside or reserve” seats
on the basis of race. Rather, in pursuit of a “critical mass,” the policy was designed
to ensure that a “meaningful number” of minority students were able “to contribute
to classroom dialogue without feeling isolated.” The majority opinion further
emphasized that the admissions program was “flexible,” with no “fixed goal or
target;” that it did not use “separate tracks” for minority and nonminority candidates;
and did not function as a “quota system.”
Supreme Court Review of the Michigan Cases.
Without waiting for a final appeals court decision, the Supreme Court agreed
to review the Gratz undergraduate admissions case in tandem with the Sixth Circuit
ruling in Grutter on December 2, 2002. Oral arguments were heard on April 1,
2003. Following a reportedly intense debate within the Bush Administration, the
Department of Justice filed briefs amicus curiae on January 16, 2003 opposing the

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affirmative action admissions policies of the University of Michigan and advocating
race neutral alternative plans for achieving a diverse student body.40
The Justice Department’s Legal Position.
The Justice Department entered the debate when it filed the government’s briefs
in support of the white students rejected for admission in Grutter and Gratz. It did
not attack Bakke, in so many words, nor did it question the educational benefits of
diversity in the academic setting. Instead, the thrust of the government’s argument
was that Michigan undergraduate and law school admissions policies failed the
constitutional narrow tailoring requirement because they ignored race neutral
alternatives. Specifically, the briefs contended, “percentage plans” in Texas, Florida,
and California that guarantee admission to top high school graduates in those states,
regardless of race, have succeeded in achieving the “paramount interest” of the state
to insure “open” and “equal access” to all students. Alternatively, “experiential
diversity,” like that urged by Judge Boggs’ dissent in Grutter, was advocated as a
way to achieve “genuine” diversity of “experiences and viewpoints.” Consideration
of “numerous race neutral factors” — e.g. work and family history, talents, leadership
potential, socioeconomic status, etc. — for each candidate, the government argued,
avoided constitutional objection and provided better proxies for student diversity than
race.
In contrast, Michigan’s 1999 undergraduate admissions policy was condemned
by the government in Gratz for providing an “enormous inflexible bonus” to
preferred minority applicants “without regard to their background, academic
performance, or life experiences. . .” By “flagging” minority applications for
individualized review “solely” because of race, while automatically rejecting other
equally qualified candidates, the current plan created a “dual admissions system.”
The change from an “open quota system” of grids in 1995-1998 to a “race-based
bonus” a year later, the brief argued, was one of “mechanics, and not the substance”
in the selection process. “After all, adding 20 points has no independent significance
apart from its effect on the number of preferred minority students admitted.
Selecting the ‘correct’ race-based bonus generates the ‘correct’ number of minority
students.” And simply “disguis[ing] its racial quota” did not change the
“overwhelming” importance of race in the process of “admitting virtually every
qualified under-represented minority applicant, while denying admission to non-
preferred applicants with the same or better qualifications based solely on their
race.”41
Similarly, in Grutter, the quest for a “critical mass” of minority students in law
school admissions was opposed by the government as the “functional equivalent” of
a quota system and because the university ignores race neutral alternatives. In
particular, the Justice brief pointed to a “remarkable degree of consistency” in
minority enrollment from 1995 to 1998 — between 44 and 47 students per year —
coupled with certain administrative aspects of the admissions process.
40Brief for the United States As Amicus Curiae Supporting Petitioner, Grutter v. Bollinger,
No. 02-241 (filed 1-17-2003); Id. Gratz v. Bollinger, No. 02-516 (filed 1-17-2003).
41Gratz brief, pp. 21- 26.

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Respondents’ race-based pursuit of a predetermined ‘critical mass’ is not
meaningfully different from the strict numerical quotas this Court invalidated in
Bakke. Variations in the ultimate number of enrolled minorities have more to do
with respondents’ inability to predict rates of acceptance with absolute precision
than it does to any true flexibility that would meaningfully distance the program
from more traditional quotas. The Dean and the Director of Admissions consult
‘daily admissions reports’ that reflect ‘how many students from various racial
groups have applied, how many have been accepted, how many have been placed
on the waiting list, and how many have paid a deposit.’ . . . The fact that the Law
School enrolls minorities in percentages ‘roughly equal’ to their percentages in
the applicant pool ‘supports the inference that [it] seeks to allocate [places in an
entering class] based on race. . . . After all, if the ‘critical mass’ were truly an
undefined number or percentage, as the Law School claims, actual enrollment
figures for preferred minority applicants would not consistently reflect their
percentages in the total applicant pool.42
According to the Justice briefs, other factors further contradicted claims by the
University to a “narrowly tailored” admissions policy. Thus, the government argued,
Michigan permits racial preferences “in perpetuity;” its current policies are
“inflexible” in “mechanically” awarding an “enormous” and “disproportionate”
weight to race over “other factors related to educational diversity;” and they
“unfairly burden innocent third parties” by “accepting favored minority candidates
who have lesser objective qualifications.”43
While the briefs were circumspect on the question of racial diversity and Bakke
as precedent, a few clues as to the government’s position were evident. Noting the
current state of judicial disarray, in a passing footnote, the Grutter brief dismissed
the quest for Bakke’s meaning as “not useful,” instead urging the court to “resolve
the constitutionality of race-admissions standards by focusing on the availability of
race-neutral alternatives.”44 Also, in describing the “important and entirely legitimate
government objective” of insuring that public educational institutions are “open and
accessible” to all persons, the Justice briefs departed from Bakke’s constitutional
notion of educational diversity as a “compelling” state interest. Finally, in Grutter,
the government voiced skepticism for the empirical basis of Michigan’s admissions
policies, arguing that “[t]he Law School’s rationale for seeking diversity has not
always been consistent.” And, further, “[i]f all a university ‘need do is find. . .
report[s],’ studies, or recommendations ‘to enact’ a race-based admissions policy,
‘the constraints of the Equal Protection Clause will, in effect, have been rendered a
nullity.’”45
42Grutter brief at pp 28-29, 30.
43Gratz brief, pp.27 -31; Grutter brief, pp. 33-37.
44Grutter brief, pp15-16, n.4.
45Id., p. 32, n. 8.

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Oral Arguments.
Oral arguments before the Supreme Court on April 1, 2003 offered few real
surprises. Justice O’Connor appeared the key vote going in, and she remained so
coming out. Three Justices — Rehnquist, Scalia, and Kennedy — seemed distinctly
unsympathetic to the University’s case. Each branded the undergraduate and/or law
school admissions policy with the dreaded “q” word — i.e. “quota” or “disguised
quota” — at some point during the two hour argument. Sparse questioning by Justice
Thomas was less revealing. But judging from his prior opinions on the same subject,
he seemed a reliable fourth vote for any Rehnquist-led plurality.
On the other side, Justices Souter and Ginsburg tried to head off an attack by the
Solicitor General (SG), who joined the petitioners’ campaign against the University
admissions policies. Several former and retired military officers filed an amicus
curiae brief in support of current race-conscious admissions policies of the U.S.
armed services academies. Asked to reconcile this brief with the Justice
Department’s own position, the SG observed only that the issues were different,
given the constitutional deference generally accorded the military in governing its
own affairs. Justice Breyer’s questioning also seemed to signal acceptance of
diversity in higher education as a compelling state interest. Some greater skepticism
of the Michigan policy was voiced by Justice Stevens, who also voted to outlaw
racial considerations in the Bakke case.
Justice O’Connor was sympathetic to the University’s position that racial
diversity has a valuable role to play in the educational process, and the world of work
in a global economy. She expressed impatience with the petitioners’ “absolutist”
position, noting past cases where the Court had approved of voluntary affirmative
action by employers. But the lack of a “sunset” or time limit on the consideration of
race for diversity purposes prompted misgivings on her part. Justice O’Connor,
therefore, appeared ready to approach the Michigan policies from the narrow
tailoring angle — for example, by requiring further consideration of race neutral
alternatives — and preserve some “wiggle room” for use of “race conscious”
diversity programs — at least temporarily — where all else fails.
The Supreme Court handed down its rulings in Grutter and Gratz on June 23,
2003. Writing for the majority in the former was Justice O’Connor, who was joined
by Justices Stevens, Souter, Ginsburg, and Breyer in upholding the Law School
admissions policy. Chief Justice Rehnquist authored an opinion, in which Justices
O’Connor, Scalia, Kennedy, and Thomas joined, striking down the University’s
undergraduate racial admissions program. Justice Breyer added a sixth vote to
invalidate the racial bonus system in Gratz, but declined to join the majority opinion.
The Grutter Decision.
A notable aspect of the Grutter majority opinion was the degree to which it
echoed the Powell rationale from Bakke. Settling, for the present, the doctrinal
imbroglio that had consumed so much recent lower court attention, Justice
O’Connor quoted extensively from Justice Powell’s opinion, finding it to be the
“touchstone for constitutional analysis of race-conscious admissions policies.” But
her opinion was not without its own possible doctrinal innovations. Overarching

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much of her reasoning were two paramount themes, that drew considerable criticism
from Justice Thomas and his fellow dissenters. First, in applying “strict scrutiny” to
the racial aspects of the Law School admissions program, Justice O’Connor stressed
the situational nature of constitutional interpretation, taking “relevant differences into
account.” Thus, the majority opines, “[c]ontext matters when reviewing race-based
governmental action” for equal protection purposes and “[n]ot every decision
influenced by race is equally objectionable,” but may depend upon “the importance
and the sincerity of the reasons advanced by the governmental decisionmaker” for
that particular use of race. Second, and equally significant, was the deference
accorded to the judgment of educational decisionmakers in defining the scope of their
academic mission, even in regard to matters of racial and ethnic diversity.
“[U]niversities occupy a special niche in our constitutional tradition,” Justice
O’Connor states, such that “[t]he Law School’s educational judgment . . .that
diversity is essential to its educational mission is one to which we defer.”
Institutional “good faith” would be “presumed” in the absence of contrary evidence.
Justice Thomas’ dissent, joined by Justice Scalia, took particular exception to what
he viewed as “the fundamentally flawed proposition that racial discrimination can be
contextualized” — deemed “compelling” for one purpose but not another — or that
strict scrutiny permits “any sort of deference” to “the Law School’s conclusion that
its racial experimentation leads to educational benefits.” Indeed, the dissenters found
such deference to be “antithetical” to the level of searching review demanded by
strict scrutiny.
Satisfied that the Law School had “compelling” reasons for pursuing a racially
diverse student body, the Court moved to the second phase of strict scrutiny analysis.
“Narrow tailoring,” as noted, requires a close fit between “means” and “end” when
the state draws any distinction based on race. In Grutter, the concept of “critical
mass,” so troubling to several Justices at oral argument, won the majority’s approval
as “necessary to further its compelling interest in securing the educational benefits
of a diverse student body.” In this portion of her opinion, Justice O’Connor draws
chapter and verse from the standards articulated by Justice Powell in Bakke.
We find that the Law School’s admissions program bears the hallmarks of a
narrowly tailored plan. As Justice Powell made clear in Bakke, truly
individualized consideration demands that race be used in a flexible,
nonmechanical way. It follows from this mandate that universities cannot
establish quotas for members of certain racial groups or put members of those
groups on separate admissions tracks. Nor can universities insulate applicants
who belong to certain racial or ethnic groups from the competition for admission.
Universities can, however, consider race or ethnicity more flexibly as a “plus”
factor in the context of individualized consideration of each and every applicant.
Justice O’Connor drew a key distinction between forbidden “quotas” and permitted
“goals,” exonerating the Law School’s admission program from constitutional
jeopardy. She observes that both approaches pay “some attention to numbers.” But
while the former are “fixed” and “reserved exclusively for certain minority groups,”
the opinion continues, the Law School’s “goal of attaining a critical mass” of
minority students required only a “good faith effort” by the institution. In addition,
Justice O’Connor notes, minority Law School enrollment between 1993 and 2000
varied from 13.5 to 20.1 percent, “a range inconsistent with a quota.” Responding,
in his separate dissent, the Chief Justice objected that the notion of a “critical mass”

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CRS-15
was a “sham,” or subterfuge for “racial balancing,” since it did not explain disparities
in the proportion of the three minority groups admitted under its auspices.
Other factors further persuaded the Court that the Law School admissions
process was narrowly tailored. By avoiding racial or ethnic “bonuses,” the policy
permitted consideration of “all pertinent elements of diversity,” racial and nonracial,
in “a highly individualized, holistic review of each applicant’s file.” Justice
O’Connor also found that “race neutral alternatives” had been “sufficiently
considered” by the Law School, although few specific examples are provided.
Importantly, however, the opinion makes plain that “exhaustion” of “every
conceivable alternative” is not constitutionally required, only a “serious good faith
consideration of workable race-neutral alternatives that will achieve the diversity the
university seeks.” Consequently, the Law School was not required to consider a
lottery or lowering of traditional academic benchmarks — GPA and LSAT scores —
for all applicants since “these alternatives would require a dramatic sacrifice of
diversity, the academic quality of all admitted students, or both.” And, because the
admissions program was based on individual assessment of all pertinent elements of
diversity, it did not “unduly burden” non-minority applicants. Nonetheless, as she
had during oral argument, Justice O’Connor emphasized the need for “reasonable
durational provisions,” and “periodic reviews” by institutions conducting such
programs. To drive home the point, the majority concludes with a general
admonition. “We expect that 25 years from now, the use of racial preferences will
no longer be necessary to further the interest approved today.”
Besides Justices Thomas and Scalia, and the Chief Justice, another dissenting
opinion was filed by Justice Kennedy, who agreed with his brethren that the
“constancy” of minority admissions over a period of years “raised a suspicion” of
racial balancing that the Law School was required by the rigors of strict scrutiny to
rebut. Arguing from different statistics than the majority, he found “little deviation
among admitted minority students from 1995 to 1998,” which “fluctuated only by
0.3% from 13.5% to 13.8” and “at no point fell below 12%, historically defined by
the Law School as the bottom of its critical mass range.” In addition, he contended,
the use of daily reports on minority admissions near the end of the process shifted the
focus from individualized review of each applicant to institutional concerns for the
numerical objective defined by a “critical mass.” For these reasons, he agreed with
his fellow dissenters that deference to the Law School in this situation was
“antithetical to strict scrutiny, not consistent with it.”
The Gratz Decision.
The four Grutter dissenters were joined by Justices O’Conner and Breyer in
striking down the racial bonus system for undergraduate admissions in Gratz.
Basically, the same factors that saved the Law School policy, by their absence,
conspired to condemn the undergraduate program, in the eyes of the majority. Since
the university’s “compelling” interest in racial student diversity was settled in
Grutter, the companion case focused on the reasons why the automatic award of 20
admission points to minority applicants failed the narrow tailoring aspect of strict
scrutiny analysis. Relying, again, on the Powell rationale in Bakke, the policy was
deemed more than a “plus” factor, as it denied each applicant “individualized
consideration” by making race “decisive” for “virtually every minimally qualified

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CRS-16
underrepresented minority applicant.” Nor did the procedure for “flagging”
individual applications for additional review rescue the policy since “such
consideration is the exception and not the rule,” occurring — if at all — only after
the “bulk of admission decisions” are made based on the point system. The opinion
of the Chief Justice rejected the University’s argument based on “administrative
convenience,” that the volume of freshman applications makes it “impractical” to
apply a more individualized review. “[T]he fact that the implementation of a
program capable of providing individualized consideration might present
administrative challenges does not render constitutional an otherwise problematic
system.” Finally, the majority makes plain that its constitutional holding in Gratz is
fully applicable to private colleges and universities pursuant to the federal civil rights
laws. “We have explained that discrimination that violates the Equal Protection
Clause of the Fourteenth Amendment committed by an institution that accepts federal
funds also constitutes a violation of Title VI [of the 1964 Civil Rights Act].”
Justice O’Connor, concurring in Gratz, emphasized the “mechanical” and
“automatic” nature of the selection index scoring, which distinguished it from the
Law School program, and made impossible any “nuanced judgments” concerning
“the particular background, experiences, or qualities of each particular candidate.”
She agreed that the Admissions Review Committee was “kind of an afterthought,”
particularly since the record was barren of evidence concerning its methods of
operation and “how the decisions are actually made.”
Dissenting opinions were filed jointly, by Justices Stevens and Souter, and
separately by Justice Ginsburg. The former argued on technical grounds that since
the named petitioners had already enrolled in other schools, and were not presently
seeking freshman admission at the university, they lacked standing to seek
prospective relief and the appeal should be dismissed. But Justice Souter argued
separately on the merits that the Michigan undergraduate admission program was
sufficiently different from the racial quota in Bakke to be constitutionally acceptable.
At the very least, he felt, a more appropriate course would be to remand the case for
further development of the record to determine whether the entire “admissions
process, including review by the [Admissions Review Committee], results in
individualized review sufficient to meet the Court’s standards.” Justice Ginsburg
found “no constitutional infirmity” in the Michigan program since only “qualified”
applicants are admitted, the current policy is not intended “to limit or decrease”
admissions of any racial or ethnic group, and admissions of nonminority groups is
not “unduly restricted.” More broadly, she opined that government decisionmakers
may properly distinguish between policies of inclusion and exclusion, because the
former are more likely to comport with constitutional imperatives of individual
equality.
Desegregation of Public Elementary, Secondary and Magnet
Schools (K -12).
The use of different cutoff scores for admission of white and minority students
to magnet or other special schools within a public school system formerly illegally
segregated has been the source of considerable controversy. In 1974, courts found
the Boston schools to be unlawfully segregated and ordered into effect a
desegregation plan requiring, inter alia, a thirty-five percent set-aside for admission

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of black and Hispanic students to the city’s three “examination” schools.46 This
policy was revised to eliminate the set-aside after a successful equal protection
challenge was brought in 1996 by a white student who was denied admission to the
famed Boston Latin School.47 Under the new policy, half of the available seats at
each school was awarded solely on the basis of students’ composite scores, derived
from grade point averages and entrance examination scores. The other half was also
awarded according to composite score rankings, but in conjunction with “flexible
racial/ethnic guidelines.” The guidelines required that these seats be allocated by
composite rank score in proportion to the racial and ethnic composition of each
school’s remaining qualified applicant pool. A white student denied admission for
the 1997-98 academic year, despite higher qualifications than several admitted
minority students, challenged the guidelines on equal protection grounds.
In Wessman v. Gittens,48 the First Circuit reversed a judgment in favor of the
Boston School Committee, which had adopted the two-track admissions policy. The
district court had applied strict scrutiny, but nonetheless concluded that the policy
was constitutional based on the school system’s compelling interests in diversity and
in “overcoming the vestiges of past discrimination and avoiding the re-segregation
of the Boston Public Schools.” According to the appeals court, however, the School
Committee had not produced sufficient evidence to demonstrate a compelling interest
in either goal or that the admissions policy was narrowly tailored to those ends. First,
there was no “solid and compelling evidence” that student diversity was “in any way
tied to the vigorous exchange of ideas,” nor that any achievement gap between
minority and non-minority students amounted to “vestiges” of the system’s past
discrimination. The policy also swept “too broadly” by dividing individuals into
“only five groups — blacks, whites, Hispanic, Asians, and Native Americans —
without recognizing that none is monolithic.” Thus, even assuming arguendo that
diversity might, in some circumstances, be sufficiently compelling to justify race-
conscious actions, “the School Committee’s flexible racial/ethnic guidelines appear
to be less a means of attaining diversity in any constitutionally relevant sense and
more a means of racial balancing,” which is neither “a legitimate [n]or necessary
means of advancing the lofty principles credited in the policy.”49
In a pair of decisions, the Fourth Circuit invalidated affirmative action policies
for admission of minority students to magnet schools in Arlington County, Va. and
Montgomery County, Md. Because neither policy was found to satisfy the “narrow
tailoring” aspect of strict scrutiny as required by Adarand, however, it was
unnecessary for the court to decide whether educational diversity may be a
“compelling interest” justifying race based admissions in other circumstances. At
issue in the Arlington County case, Tuttle v. Arlington County School Board,50 was
a “sequential, weighted random lottery” system developed in response to prior
46See Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass), aff’d sub nom. Morgan v. Kerrigan,
509 F.2d 580 (lst Cir. 1974).
47See McLaughlin v. Boston School Committee, 938 F. Supp. 1001 (D.Mass. 1996).
48160 F.3d 790 (lst Cir. 1998).
49160 F.3d at 799.
50189 F.3d 431 (4th Cir. 1999), cert. denied 120 S.Ct 1420 (2000).

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litigation which took account of three factors — low-income background, the
applicant’s primary language, and race or ethnicity — in determining admission to
three county magnet schools. The probabilities associated with each applicant’s
lottery number were weighted, so that members of under-represented groups, as
defined by any of those factors, had an increased probability of selection. In the
Montgomery County case, Eisenberg v. Montgomery County Public Schools,51
school officials considered a variety of factors, including a “diversity profile” of
affected schools, when deciding whether to grant applications for transfer from a
student’s assigned school to another county public school. The diversity profile, in
effect, precluded transfer of students of a particular racial or ethnic background —
white, black, Asian or Hispanic — from any school where the percentage of that
group in the student body had declined over the preceding three years and was under-
represented when compared to the county as a whole. In both cases, the challenged
policy led to white students being denied admission to schools of their choice for
racial reasons tied to student diversity.
While the Arlington County school system, earlier in its history, had been
found to be de jure segregated and was required to desegregate by judicial decree,
Montgomery County had never been subject to court supervised desegregation.
Rather, the Maryland district had dismantled its formerly segregated schools by
voluntary means, one aspect of which included implementation of a magnet school
program. In neither case, however, did the Fourth Circuit attribute a remedial
purpose to the diversity interest asserted by the school board, but found that the
admissions and transfer policies in question were an exercise in “racial balancing.”
In so doing, the appeals court sidestepped deciding whether racial diversity in
education could ever be a “compelling” state interest, proceeding instead to find the
challenged policies failed the narrow tailoring aspect of Adarand analysis. In the
Arlington case, the school board was found to have disregarded “one or more race-
neutral policies” recommended by an advisory committee as alternatives to promote
diversity. The duration of the plan was criticized for being “in perpetuity” and
without “a logical stopping point.” Although the weighted lottery did not “set-aside”
positions for minorities, according to the court, the practical effect was the same
since it “skew[ed] the odds of selection” in their favor to achieve classroom diversity
“in proportions that approximate the distribution of students from [racial] groups in
the district’s overall student population.” Finally, the plan lacked flexibility and
impermissibly burdened “innocent third parties” who are denied admission for racial
or ethnic reasons. Montgomery County’s race-conscious transfer policy was
characterized by the court as “mere racial balancing in a pure form” due to many of
the same failings and because it was not directed at the correction of any past
constitutional wrongs.
The County annually ascertains the percentage of enrolled public school students
by race on a county-wide basis, and then does the same for each school. It then
assigns a numbered category for each race at each school, and administers the
transfer policy so that the race and percentage in each school to which students
are assigned by residence is compared to the percentage of that race in the
countywide system. The transfer policy is administered with an object toward
maintaining this percentage of racial balance in each school. . . . Although the
51197 F.3d 123 (4th Cir. 1999), cert. denied 120 S.Ct 1420 (2000).

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transfer policy does not necessarily apply ‘hard and fast quotas,’ its goal of
keeping certain percentages of racial/ethnic groups within each school to ensure
diversity is racial balancing.52
Montgomery County officials were directed to eliminate the consideration of race
from student transfer decisions, while in the Arlington case, further proceedings in
the district court were ordered to review alternative admissions policies.
The U.S. Supreme Court in 2002 denied review of the Fourth Circuit en banc
decision in Belk v. Charlotte Mecklenburg Board of Education.53 The appeals court
there affirmed a finding that “all vestiges of past discrimination” had been erased
from the school system where student busing was first approved by the Supreme
Court as a desegregation remedy. Because of its newly achieved “unitary status,”
the district court had relinquished jurisdiction of the desegregation case and ordered
the school district to stop “assigning children to schools or allocating educational
opportunities and benefits through race-based lotteries, preferences, set-asides or
other means that deny students an equal footing based on race.” The specific target
of Judge Potter’s order was the “race-conscious policy for admission of students to
the magnet school program operated by the district for desegregation purposes.”54
A majority of the en banc appellate court affirmed that the school district had
eliminated the “last vestiges” of unconstitutional segregation to the fullest extent
“practicable.” Any remaining racial concentrations, therefore, were a consequence
of factors — namely residential segregation — beyond the power of school
authorities or the courts to control. In a unitary setting, the magnet admissions
process could not clear the first hurdle by showing a compelling governmental
interest, and the school district could not make “any further use of race-based
lotteries, preferences, and set-asides in student assignment.” A slightly different
majority ruled that the school board could not be held liable for its use of race in
assigning students to magnet schools since the program had originated in a then valid
desegregation order. But if the same plan were adopted after the district is declared
unitary, it would clearly be unconstitutional under Tuttle and Eisenberg (supra),
these judges opined.
The issue before the Fourth Circuit in Belk focused on whether the school board,
in creating its admission plan, was acting beyond what was permitted to comply with
52Id. at 133.
53269 F.3d 305 (4th Cir. 2001), cert. denied, 70 USLW 3482 (S.Ct. 4-15-2002).
54After nearly three decades of court-enforced desegregation, a white parent sued the school
district, charging that his daughter had twice been denied admittance to a magnet school
because she was not black. Six other white parents joined the case, arguing that the school
district had been successfully rid of segregation and with it any constitutional justification
for race-based preferences. Judge Potter agreed, calling the argument for continuing the
desegregation process a “bizarre posture” and the focus on racial diversity a “social
experiment.” The policy of allocating available magnet school spaces to reflect the racial
student makeup of the district as a whole was condemned by the court as “nothing more than
a means for racial balancing,” which could not be justified by a “litany of generalizations
lauding the benefits of racial diversity.”

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the court’s desegregation order. Another ruling, by the Fifth Circuit, in Cavalier v.
Caddo Parish School Board,55 also suggests that educational authorities have broader
discretion to consider race in making admissions decisions when the school district
is under a court order to desegregate. Cavalier held that a magnet school preferential
admissions program that mandated a 50% to 50% (plus or minus 15%) racial student
mix, and imposed lower minimum standardized test scores for minority than white
applicants, was not narrowly tailored to a compelling governmental interest. The
school board relied exclusively on a 1981 consent decree ordering desegregation to
prove a compelling governmental interest. Magnet schools had been released from
the decree in 1990, however. And the appeals court found that while student body
diversity provided compelling justification for considering race in law school
admissions under Grutter, “it is by no means clear that it could be such at or below
the high school level.”56 The admission plan was additionally flawed for its failure
to consider race-neutral means to achieve student body diversity and was a quota
system. Student selections were made from two separate lists of applicant students,
one for black student and one for white students, without direct comparison of
candidates to the applicant pool at large. Insulating students of one racial group from
competition with the larger admissions pool, along with the 50% goal, amounted to
an impermissible quota.
The diversity issue has also arisen in another educational setting. The
University of California operates a popular elementary school as a “laboratory” to
research urban education and “to foster a more effective educational system primarily
for urban elementary students.” Beyond basic research, the school develops new
techniques for educating students in multi-cultural urban settings and conducts
seminars, workshops, and teacher training programs throughout the state. The school
considers applicants’ race and ethnicity to obtain adequate cross-samples of the
general population and thus to maintain “the scientific credibility of its educational
studies.” The plaintiff in Hunter v. Regents of the University of California57
challenged the school’s admissions policy as an equal protection violation. While
perhaps not tantamount to a diversity rationale, the Ninth Circuit nonetheless agreed
with the district court judge that the state’s interest in “operating a research-oriented
elementary school dedicated to improving the quality of education in urban public
schools” was compelling even absent any purpose of remedying past discrimination.
The challenges posed by California’s increasingly diverse population intensify
the state’s interest in improving urban public schools. Cultural and economic
differences in the classroom pose special difficulties for public school teachers.
In his decision, Judge Kenyon noted that defendants presented ‘an exhaustive list
of such issues and challenges [that] includes limited language proficiency,
different learning styles, involvement of parents from diverse cultures with
different expectations and values, and racial and ethnic conflict among families
and children.’ [An expert witness] stated that ‘[t]here is no more pressing
problem, facing California, or indeed the nation, than urban education; for it is
in the urban school system that the majority of California’s future citizens will
55403 F.3d 246 (5th Cir. 2005).
56Id. at 259.
57190 F.3d 1061 (9th Cir. 1999).

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be educated (either well or poorly), creating the basic fabric for the society of the
future.’ . . . Given this record, the district court concluded, and we agree, that
‘the defendants’ interest in operating a research-oriented elementary school is
compelling.’58
Given the demographics of California’s urban population, and the necessity of
creating a multi-cultural laboratory setting, the consideration of race for admission
to the school was deemed “narrowly tailored” since “it would not be possible, nor
would it be reasonable, to require defendants to attempt to obtain an ethnically
diverse representative sample of students without specific racial target and
classifications.”59
Racial Diversity in K - 12 Public Education.
The Supreme Court in Grutter did not address the voluntary use of race as a
factor in achieving diversity in elementary and secondary education. As suggested
above, federal court decisions before Grutter and Gratz and thereafter are divided on
the issue. Some decisions assumed, without deciding, that diversity was a
compelling interest. But based on the facts of the particular case, they found that the
specific admissions policy under consideration was not “narrowly tailored.” Thus,
the Ninth Circuit recently found that while fostering high school diversity was a
compelling interest, the means selected by a local school board was neither
“individualized” nor “holistic” and, therefore, not narrowly tailored, as Grutter
demands. The First and Sixth Circuits, on the other hand, have approved of racial
diversity measures in K-12 schools, finding the social and educational factors
highlighted by the Supreme Court in the higher educational context to be as
compelling for the lower grade levels. The role of racial diversity in public
elementary and secondary education may provide the newly-reconstituted Supreme
Court its next opportunity to add its voice to the ongoing debate.
Comfort v. Lynn School Committee.60 The U.S. Court of Appeals for the First
Circuit has issued an en banc decision holding that a school district use of race as a
factor in its student assignment plan does not violate the Equal Protection Clause.
Relying on principles laid down by Grutter and Gratz, the First Circuit concluded
that the plan’s goal of securing the educational benefits of racial diversity constituted
a compelling interest and that the plan was narrowly tailored to achieve that goal.
The ruling reversed an earlier three-judge appellate panel’s contrary conclusion that
the consideration of race in Lynn’s voluntary school choice plan was
unconstitutional.
Under Massachusetts’ Racial Imbalance Act, local communities receive
additional state education aid if they adopt plans that assign students on the basis of
race. The City of Lynn School Committee implemented a voluntary desegregation
plan that allows all students to attend neighborhood schools. Race only becomes a
factor when a student seeks to transfer to another school. The transfer is permitted
58Id. at 1064
59Id. at 1065.
60418 F.3d 1 (1st Cir. 2005).

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only if it will not increase the racial imbalance at either the sending or receiving
school. Citizens for the Preservation of Constitutional Rights (CPCR) filed suit on
behalf of several parents. A federal district court ruled that the plan satisfied equal
protection requirements. On appeal, the three-judge panel reversed the district court,
ruling that while the goal of student body diversity constituted a compelling state
interest, the plan was not narrowly tailored to that end.
The panel decision was withdrawn when the First Circuit granted Lynn’s motion
for a rehearing en banc. Addressing the “compelling state interest” prong of the
equal protection test, the full court measured the plan against the law school
admissions policy upheld in Grutter. The court rejected CPCR’s assertion that
Grutter’s recognition of a compelling interest in
‘the educational benefits that flow from student body diversity’ . . . is . . . limited
to the benefits that flow from viewpoint diversity in the higher education context
and does not extend to the benefits that flow from racial diversity in the K-12
context.
The First Circuit, however, found that the educational benefits found compelling in
Grutter are advanced not only by viewpoint diversity, but also by racial diversity, and
these interests are no less strong in K-12 than in higher education.
Turning to the “narrowly tailored “ prong, the court noted that while the
Supreme Court has yet to consider the question, Grutter and Gratz provide
sufficient guidance to determine the constitutionality of a voluntary K-12 race-based
assignment policy. Because the Lynn plan deals with a noncompetitive transfer
policy, as opposed to competitive admissions policies, competition-related criteria
— such as need for individualized consideration of applicants — so important in
Grutter/Gratz — were not relevant here. Otherwise, the court found that the plan’s
use of race was minimally invasive; avoided racial balancing for its own sake;
avoided use of quotas; was of finite duration; and was adopted after considering race-
neutral alternatives.
MacFarland v. Jefferson County Public Schools.61 On the first anniversary of
the Michigan decisions, and the 50th anniversary of Brown v. Board of Education, a
federal district court in Kentucky upheld a Louisville district’s voluntary
consideration of race in making student assignments to achieve racial integration in
the public schools. Jefferson County Public Schools (JCPS) were ordered by judicial
decree to desegregate in 1975. Under the desegregation plan, each school was to
have between 15% and 50% African-American enrollment and students were bused,
if necessary, to ensure racial diversity. Twenty-five years later, in 2000, the federal
courts ended their supervision of the desegregation plan, but the JCPS voluntarily
opted to maintain its integrated schools through a “managed choice” plan. The plan
was challenged in a lawsuit in 2000 by black parents whose children were denied
admission to Central High School, which was already at the upper percentage limit
for minority enrollment.
61330 F. Supp. 2d 834 (W.D.Ky. 2004).

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The district court found that the managed choice plan served numerous
compelling state interests, “some of the same reasons for integrated schools that the
Supreme Court upheld in Grutter.” Thus, Judge Heyburn accepted the school
board’s arguments that the plan improved the educational experience; that it
produced educational benefits for students of all races over the last 25 years; and that
it helped overcome the adverse effects of concentrations of poverty that impact black
students to a greater extent than whites. “Integrated schools, better academic
performance, appreciation for our diverse heritage and stronger, more competitive
public schools are consistent with the central values and themes of American
culture,” Judge Heyburn wrote. The court also found that the student assignment
plan was “narrowly tailored” in very respect except for its use of separate “racial
categories,” which the district was required to revise for the 2005-2006 school year.
On July 21, 2005, for reasons “articulated in the well-reasoned opinion of the district
court,” the Sixth Circuit summarily affirmed Judge Heyburn’s decree, without
issuing a detailed written opinion.62
Parents Involved in Community Schools v. Seattle School District No. 1. The
constitutionality of race-conscious admissions to magnet or alternative schools,
designed to promote elementary and secondary school desegregation, has also been
before the courts. In Parents Involved in Community Schools v. Seattle School
District No. 1,63 the Ninth Circuit applied Grutter and Gratz to limit measures a
school district may take to create racially diverse schools. Under Seattle’s
“controlled choice” high school student assignment plan, students were given the
option to attend high schools across the district, but if the demand for seats exceeded
the supply at a particular school, a student’s race was considered as a tie-breaker in
determining admittance to the oversubscribed school. The racial tie-breaker applied
only to schools whose student bodies deviated by more than 15 percentage points
from the overall racial makeup of the district, then “approximately 40% white and
60% nonwhite.” The Seattle plan was voluntarily adopted to “achiev[e] diversity
[and] limit racial isolation” in the schools, not as a part of a desegregation remedy.
The Ninth Circuit ruled that while the school district had a compelling interest
in fostering diverse high school enrollment, the manner selected for considering race
was not sufficiently narrowly tailored to pass constitutional muster. Rather than an
“individualized” and “holistic” review, as endorsed by the Supreme Court,
applicants were “automatically and mechanically” admitted to affected schools
“solely because of race.” Nor was the Ninth Circuit satisfied that the school board
had “seriously considered” available nonracial alternatives before approving the
controlled choice plan. Finally, the 15 percentage point “band” was viewed by the
court to be a largely arbitrary measure, bearing no “tailored proportionality” to the
desired benefits. “Instead, it represents a stubborn adherence to the use of race for
race’s sake, with the effect that some non-preferred student applicants will be
displaced solely because of their racial or ethnic identities — to no benefit at all.”
62McFarland v. Jefferson County Public Schools, 416 F.3d 513 (6th Cir. 2003).
63377 F.3d 949 (9th Cir. 2004).

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Faculty Diversity.
Corollary issues concerning faculty diversity have also been before the courts,
including the Piscataway case, which was dismissed as moot by the Supreme Court
after the parties reached an out-of-court settlement. The appeal from Taxman v.
Board of Education of Piscataway Township64 had asked the High Court to consider
whether a local school board’s desire to promote faculty diversity could legally
justify its decision to protect a black teacher from layoff, while dismissing an equally
qualified white colleague, in the absence of a showing of past discrimination or a
“manifest” racial imbalance in its workforce. Two teachers, one white, the other
black, were hired on the same day in 1980 and were deemed equally qualified for
their positions in the business education department when a reduction in force
became necessary eight years later. Minority teachers were not underrepresented on
the overall faculty — constituting 9.5 % of the district’s teachers versus 5.8 % of the
relevant county labor pool — and no evidence of past discrimination by the school
district was presented at trial. A “coin toss” had traditionally been used to determine
retention rights among similarly situated employees in the past. But because only
one black teacher was among the business department’s ten-member staff, the school
district relied on its affirmative action policy to retain the minority employee rather
than her white colleague in the interests of promoting racial diversity.
An en banc majority of the Third Circuit determined that however laudable the
school board’s objective might be, laying off a white reacher “solely” on the basis of
race to achieve faculty diversity exceeded the bounds of controlling Supreme Court
precedent. Title VII rulings in Weber and Johnson (supra) permitted employers to
make employment decisions based on race or gender in order to redress a “manifest”
imbalance of minorities and women in “traditionally segregated job categories.” But
judicial teachings generally caution against affirmative action measures that
“unnecessarily trammel” or frustrate the “legitimate and firmly rooted expectation in
continued employment” of affected non-minorities. In its 1986 Wygant decision, the
Court voided race-based layoff protection for minority public school teachers because
of its immediate adverse impact on “identifiable” senior white employees.
Consequently, while applauding the board’s commitment to racial diversity, the
Taxman appellate opinion rejected the non-remedial educational purposes asserted
by the board for its affirmative action plan because “there is no congressional
recognition of diversity as a Title VII objective requiring accommodation.” And
because the entire burden of the board’s plan fell upon the white teacher whose
interests were “unnecessarily trammeled” by the loss of her job, the race-based policy
violated Title VII.
On March 9, 1998, the Supreme Court declined to review the legality of a
“minority bonus policy” in an affirmative action plan established for Nevada’s public
colleges to redress a lack of minority faculty members. In Farmer v. University and
Community College Systems of Nevada,65 the plaintiff had been one of three finalists
for a faculty position in the sociology department which the university awarded to a
6491 F.3d 1547 (3d Cir. 1996), appeal dismissed sub nom. U.S. v. Board of Education of the
Township of Piscataway, 118 S. Ct. 595 (1998).
65930 P.2d 730 (Nev. 1997), cert. denied No. 97-1104, 118 S. Ct 1186 (1998).

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CRS-25
black male candidate from Uganda with “comparable” qualifications. The
university’s minority bonus policy, which the Nevada Supreme Court described as
an “unwritten amendment” to its affirmative action plan, allowed a department to
hire an additional faculty member following the initial placement of a minority
candidate. As a consequence, plaintiff was hired by the sociology department a year
later, but at a lesser salary than the earlier-hired black candidate. The differential was
defended by the university as reflecting a pay premium necessary “to prevent[ ] a
bidding war between two prestigious universities slated to interview [the black
candidate].” Farmer challenged both the hiring and pay decisions by the university
as race and sex discrimination prohibited by Title VII and the Equal Pay Act.
The state supreme court reversed a jury verdict for the plaintiff and upheld the
university’s affirmative action hiring policy on both federal constitutional and
statutory grounds. First, according to the court, race was only one factor considered
by the university — along with educational background, publishing, teaching
experience, etc. — in evaluating applicants. In contrast to Piscataway, the university
faculty was a “white enclave” with only 1 % black members, a factor persuading the
court that the university had a “compelling interest in fostering a culturally and
ethnically diverse faculty” under standards laid out by the Bakke and Weber cases.
Here, in addition to considerations of race, the University based its employment
decision on such criteria as educational background, publishing, teaching
experience, and areas of specialization. This satisfies Bakke’s commands that
race must be only one of several factors used in evaluating applicants. We also
view the desirability of a racially diverse faculty as sufficiently analogous to the
constitutionally permissible attainment of a racially diverse student body
countenanced by the Bakke Court.
Thus, severe minority underrepresentation on the university faculty combined with
the employer’s consideration of relative qualifications in addition to race
distinguished Piscataway, the Nevada court felt, and conformed the case to Justice
Powell’s Bakke opinion. In addition, the impact of the initial minority hire was
mitigated by affording the disappointed white applicant a subsequent position created
pursuant to informal practice or custom under the affirmative action policy.
Conclusion
The Michigan cases resolved an issue that had vexed the lower federal courts
for a quarter century. Historically, judicial insistence on strict scrutiny has largely
condemned governmental distinctions based on race except in the most narrowly
circumscribed remedial or national security circumstances. To the short list of
governmental interests sufficiently “compelling” to warrant race-based
decisionmaking a majority of the Court has now added the pursuit of diversity in
higher education. But this expansion is not without qualification and may require
further judicial elaboration before its implications are fully known. Significant here
is Justice O’Connor’s emphasis upon contextualism when applying strict judicial
review and deference to the judgment of educators in the formulation of diversity
policies. Any such policy, it now seems, must be sufficiently flexible to permit
individualized assessment of each applicant on a range of factors — academic and
nonacademic — which may include, but not be dominated by, race or ethnicity.

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Affording greater latitude, however, the good faith of the institution is “presumed,”
absent sufficient contrary evidence.

But the seeds of future controversy may lie in questions arguably raised but not
fully addressed by the latest rulings. As outlined by Justice Scalia in his Grutter
dissent:
Some future lawsuits will presumably focus on whether the discriminatory
scheme in question contains enough evaluation of the applicant ‘as an
individual,’ . . . and sufficiently avoids ‘separate admission tracks’ . . . Some
will focus on whether a university has gone beyond the bounds of a ‘good faith
effort’ and has so zealously pursued its ‘critical mass’ as to make it an
unconstitutional de facto quota system, rather than merely ‘a permissible goal.’
. . . And still other suits may claim that the institution’s racial preferences have
gone below or above the mystical Grutter- approved ‘critical mass.’
Claims of a de facto quota system, or breach of “good faith,” may be more readily
alleged than proven after Grutter, however. The argument in Grutter boiled down
to a battle of statistics. Thus, the University pointed to percentage variability, year
to year, in minority admissions over a relevant period and the marginal impact on the
admission chances of nonminorities. It dubbed this the “causation fallacy.” In
selective admissions, the competition is so intense that even without affirmative
action, it argued, the overwhelming majority of rejected white applicants still would
not gain admission. Conversely, the Grutter dissenters cited other statistics indicating
the decisive weight of race in the admissions process. Marginally qualified minority
candidates were many times more likely to be admitted than non-minorities of like
qualifications.66 Nonetheless, for the Grutter majority, race only amounted to a
“plus” factor in the “critical mass” calculus, and educational officials’ bona fides was
presumed. Accordingly, any future diversity challenge may be futile unless
statistics of this sort are supported by direct evidence of school officials’ intent to
camouflage their actions so as to evade constitutional limitations.
Also unanswered by the Court’s latest rulings is the constitutional status of
racially exclusive diversity policies not directly involving admissions. Thus, the
legality of race-based scholarship and financial aid, recruitment and outreach, or
66Framing this debate were findings from a 1998 study compiled by Derek Bok and William
Bowen, former presidents of Harvard and Princeton, respectively, of 80,000 black and white
students at 28 of the nation’s most selective institutions. Bowen and Bok, The Shape of the
River: Long-Term Consequences of Considering Race in College and University
Admissions (1998). At the extremes of academic performance, rejection and acceptance
rate for minority and non-minorities were close to the same. In middle ranges (1100 to 1300
SATs), minorities were three or four times more likely to be accepted than a comparable
non- minority. If all racial preferences were eliminated, however, the rate of white student
admissions would improve only slightly, from 25% (a 1-in-4 chance) to 26.5%. The
reason: white applicants vastly outnumber minorities, only a few of whom are actually
admitted. Thus, while the advantage to preferred minorities may be great, the University
of Michigan argued, the burden on white applicants is relatively small. Petitioners in the
Michigan cases, however, countered that equal protection is an individual right to compete
on an equal footing that does not depend on the aggregate impact of the admissions process
on white and minority applicants as groups.

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CRS-27
college preparation courses that exclusively target minority populations may pose
next generation issues after Grutter and Gratz. Arguably, such programs may not so
severely impact opportunities for nonminority students as where the admissions
decision is involved, better enabling them to withstand the Court’s strict scrutiny
analysis. Scholarship and financial aid, however, may present a closer question since
attendance, in many circumstances, is impossible without it. Ultimately, the
outcome may depend on the extent to which institutional assistance is available from
other funding sources for nonminority students excluded from race-based programs.
A 1994 policy guidance by the Department of Education may provide direction for
race-conscious financial aid programs.67
Beyond education, issues may inevitably arise concerning the implications of
Grutter on efforts to achieve racial diversity in other social and economic spheres.
Justice O’Connor’s opinion noted the “special niche” occupied by universities, in
matters of educational policy, particularly when preparing students for military
service or to compete in a multicultural and global economy. As amicus briefs in the
Michigan cases attest, corporate America’s interest in developing a racially diverse
workforce may be no less keen. To date, the Court has permitted race-conscious
hiring criteria by private employers under Title VII, either as a remedy for past
discrimination or to redress a “conspicuous racial imbalance in traditionally
segregated job categories,”68 but refused to find that a state’s interest in faculty
diversity to provide teacher “role models” was sufficiently compelling to warrant a
race-conscious layoff policy.69 Lower courts are similarly divided, though a few
have applied an “operational need analysis” to uphold police force diversity policies,
recognizing “that ‘a law enforcement body’s need to carry out its mission effectively,
with a workforce that appears unbiased, is able to communicate with the public and
is respected by the community it serves,’ may constitute a compelling state
interest.”70 But current standards under the federal civil rights laws generally allow
for consideration of race in hiring and promotion decisions only in response to
demonstrable evidence of past discrimination by the employer or within the affected
industry. No rule of deference like that extended to educational institutions has been
recognized for employers, nor is one necessarily implied by the Michigan cases.
6759 Fed. Reg. 8756, 8757 (2-23-1994)(indicating that “a college may use race or national
origin as a condition of eligibility in awarding financial aid if this use is narrowly tailored,
or in other words, if it is necessary to further its interest in diversity and does not unduly
restrict access to financial aid for students who do not meet the race-based eligibility
criteria”).
68United Steelworkers of America v. Weber, 443 U.S. 179 (1979). In Johnson v.
Transportation Agency, 480 U.S. 616 (1980), the Court extended this analysis to gender-
conscious affirmative action programs in regard to use of a “plus” factor in hiring and
promotion decisions.
69Wygant v. Board of Education, 476 U.S. 267 (1986).
70Patrolmen’s Benevolent Assoc. v. City of New York, 310 F.3d 43, 52 (quoting Barhold v.
Rodriguez, 863 F.2d 233, 238 (2d Cir. 1988); Reynolds v. City of Chicago, 296 F.3d 524
(7th Cir. 2002). See also Cotter v. City of Boston , 323 F.3d 160, 172 n. 10 (1st Cir.
2003)(declining to address question of compelling interest but expressing sympathy for “the
argument that communities place more trust in a diverse police force and that the resulting
trust reduces crime rates and improves policing”).

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CRS-28
Finally, a note on race-neutral alternatives, and the position taken by the United
States in Grutter. Siding with the petitioners, as amicus curiae, the Justice
Department noted the importance of diversity in education, but refrained from
supporting or opposing Bakke. As noted supra, the Administration argued instead
that the admissions policies are not narrowly tailored because the University ignores
race-neutral alternatives. Specifically, the brief pointed to socioeconomic status and
“percentage plans” in Texas, Florida, and California that guarantee admission to top
graduates from every state high school, regardless of race. The University, however,
replied that such programs are counterproductive and would not work in Michigan.
Justice O’Connor, in Grutter, generally agreed, for several reasons. First, in her
view, percentage plans depend upon and would actually perpetuate racial
segregation to operate effectively; in this sense, they are not race-neutral at all.
Second, they would encourage minority students to stay in inferior schools rather
than seek better education in more competitive environments. Third, she found, such
plans would not work at all in the law school or at the graduate level. And, by
basing admission solely on academic standing, these plans conflict with the “holistic”
approach endorsed by the majority, which individually considers each student.

In addition to percentage plans, educational authorities have experimented with
other forms “alternative action,” or policies designed to promote racial diversity
without relying on racial preferences. “Class-based” affirmative action, for
example, takes socioeconomic status or family educational background of applicants
into account. Florida has replaced race and ethnicity with other socio-economic and
geographical proxies for diversity; increased the state’s need-based financial aid
program; sought to improve the state’s lowest performing primary and secondary
schools; and provided free SAT prep courses at those schools. California state
schools have targeted financial aid programs towards underprivileged neighborhoods
as a means of reaching minority students. Another approach considers “diversity”
or “hardship” essays in which applicants describe challenging life experiences such
as poverty, English as a second language, or having a family member in prison.
Some reformers advocate targeting additional resources to underperforming
elementary and secondary schools as a way to address the root causes of minority
underrepresentation in higher education.
Whether academic institutions may completely avoid the constitutional shoals
by adopting such “race-neutral” plans to increase minority admissions may not be
fully answered by the Court’s latest rulings. By avoiding the use of explicit racial
classifications and dual track admission policies, these efforts are far less susceptible
to facial challenge as an equal protection violation. Programs involving the explicit
consideration of race remain most at risk. But policies that employ nonracial factors
as a proxy for race may be vulnerable if the purpose or intent is to benefit minority
groups. In Washington v. Davis,71 and related rulings,72 the Supreme Court
71426 U.S. 229 (1976).
72Cf. Personnel Administrator v. Feeney, 442 U.S. 256 (1979). In Feeney, the Court upheld
a state law giving a preference to veterans for civil service employment, which had a
significant discriminatory effect against female applicants. Notwithstanding the obvious
impact of such a preference, the Court upheld it on the ground that “‘[d]iscriminatory
(continued...)

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determined that a race neutral law with a disparate racial impact on minority groups
is subject to strict scrutiny if it is enacted with a racially discriminatory purpose.
Racial motive was made a constitutional “touchstone” for equal protection analysis,
and whether reflected by a racial classification, or other evidence of discriminatory
purpose, strict scrutiny was triggered by evidence of such intent. Similarly,
alternatives to traditional racial diversity policies may not escape strict judicial
scrutiny if an objecting non-minority applicant is able to show that the plan was
racially motivated — to aid racial or ethnic minorities — and fails to provide the
“holistic” and “individualized” review mandated by Grutter and Gratz. The same
limitations may apply to private institutions, which are immune from constitutional
limitations, under Title VI of the 1964 Civil Rights Act.
crsphpgw
72(...continued)
purpose’ . . . implies more than intent as volition or intent as awareness of consequences.
It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at
least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable
group.” Id. at 279. Although Feeney involved a claim of sex-based discrimination, the test
there announced for determining whether a purpose is “discriminatory” with respect to a
particular trait has been applied to claims of racial discrimination as well. See Hernandez
v. New York, 500 U.S. 352, 360 (1991).

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