Order Code RL30410
Affirmative Action and Diversity
in Public Education:
Legal Developments
Updated July 16, 2007
Jody Feder
Legislative Attorney
American Law Division

---

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.
After a series of conflicting lower court rulings were issued regarding the use
of race to promote a diverse student body, the Supreme Court agreed to review the
race-conscious admissions policies used by the undergraduate and law school
admissions programs at the University of Michigan. 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.
Although the Grutter and Gratz decisions settled the question of whether race-
based policies to promote diversity in higher education are ever constitutionally
acceptable, the decisions did not address whether diversity is a permissible goal in
the elementary and secondary educational setting. To resolve this question, the
Supreme Court recently agreed to review two cases that involve the use of race to
maintain racially diverse public schools and to avoid racial segregation. In a
consolidated ruling in Parents Involved in Community Schools v. Seattle School
District No. 1, the Court struck down the Seattle and Louisville school plans at issue,
holding that they violated the equal protection guarantee of the Fourteenth
Amendment.

---

Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III. Recent Legal Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Student Diversity in Higher Education Admissions . . . . . . . . . . . . . . . . . . . 7
Background in the University of Michigan Admissions Cases . . . . . . . . . . . 9
The Grutter Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
The Gratz Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Desegregation and Racial Diversity in Public Elementary,
Secondary, and Magnet Schools (K -12) . . . . . . . . . . . . . . . . . . . . . . . 14
The Parents Involved in Community Schools Decision . . . . . . . . . . . . . . . . 22
Faculty Diversity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

---

Affirmative Action and Diversity
in Public Education: Legal Developments1
I. Introduction
Nearly a quarter century after the Supreme Court ruling in Regents of the
University of California v. Bakke,2 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.3 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.4 But, in Johnson v. Board of Regents, the Eleventh Circuit sided with
1 This report was originally prepared by Charles V. Dale, Legislative Attorney.
2 438 U.S. 265 (1978).
3 78 F.3d 932, 944 (5th Cir. 1996) (“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”).
4 See 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
(continued...)

---

CRS-2
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.5
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,6 the other voiding
a special minority law school admissions program at the same institution.7 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. Bollinger,8 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,9 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.
Although the Grutter and Gratz decisions settled the question of whether race-
based policies to promote diversity in higher education are ever constitutionally
acceptable, the decisions did not address whether diversity is a permissible goal in
4 (...continued)
“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
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).
5 Smith 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).
6 Gratz v. Bollinger, 122 F.Supp.2d 811 (E.D.Mich. 2000).
7 Grutter 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”).
8 539 U.S. 306 (2003).
9 539 U.S. 244 (2003).

---

CRS-3
the elementary and secondary educational setting. To resolve this question, the
Supreme Court agreed to review two cases that involved the use of race to maintain
racially diverse public schools. The cases were Meredith v. Jefferson County Board
of Education — formerly MacFarland v. Jefferson County Public Schools — and
Parents Involved in Community Schools v. Seattle School District No. 1.10 In Parents
Involved in Community Schools v. Seattle School District No. 1, a consolidated ruling
that resolved both cases, the Court ultimately struck down the school plans at issue,
holding that they violated the equal protection guarantee of the Fourteenth
Amendment.11
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 race-conscious admissions and hiring practices by public
educational institutions are then considered for their implications on the future
development of affirmative action law.
II. Historical Background
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.12 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.”13
10 416 F.3d 513 (6th Cir. 2003) (per curiam), cert. granted, 126 S. Ct. 2351 (U.S. 2006); 426
F.3d 1162 (9th Cir. 2005) (en banc), cert. granted, 126 S. Ct. 2351 (U.S. 2006).
11 2007 U.S. LEXIS 8670 (U.S. 2007).
12 See 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).
13 Dowell 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
(continued...)

---

CRS-4
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,”14 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 (EEOC) 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.15
The term “affirmative action” resurfaced in federal regulations construing the
1964 Act’s Title VI, which prohibits racial or ethnic discrimination in all federally
assisted “programs” and activities,16 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.”17 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.18 Affirmative
action in higher education was before the Congress in 1998, when the full House
defeated 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
13 (...continued)
Constitution.’”).
14 42 U.S.C. 2000e-5(g).
15 29 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.)
16 42 U.S.C. 2000d et seq.
17 44 Fed. Reg. 58,509 (October 10, 1979).
18 59 Fed. Reg. 8756 (February 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).

---

CRS-5
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.”19 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.”20 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.
Bakke was followed by Wygant v. Jackson Board of Education,21 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,22 and in the design of certain broadcast licensing schemes,23 while
condemning similar actions taken by local governmental entities to promote public
contracting opportunities for minority entrepreneurs.24 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
19 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311-12 (1978).
20 Id. at 317.
21 476 U.S. 267 (1986).
22 Fullilove v. Klutznick, 448 U.S. 448 (1980).
23 Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990).
24 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).

---

CRS-6
of the 1964 Civil Rights Act.25 These measures were deemed a proper remedy for
“manifest racial imbalance” in “traditionally segregated” job categories, if voluntarily
adopted by the employer,26 or for entrenched patterns of “egregious and
longstanding” discrimination by the employer, if imposed by judicial decree.27 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.28 Affirmative action preferences, however, had to be sufficiently flexible,
temporary in duration, and “narrowly tailored” to avoid becoming rigid “quotas.”
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. Croson29 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,30 the Court upheld certain minority broadcast licensing schemes approved by
Congress to promote the “important” governmental interest in “broadcast diversity.”

25 42 U.S.C. §§ 2000e et seq.
26 United Steelworkers v. Weber, 443 U.S. 193 (1979).
27 Local 28 Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986).
28 United States v. Paradise, 480 U.S. 149 (1987); Johnson v. Transportation Agency, 480
U.S. 616 (1987).
29 488 U.S. 469 (1989).
30 497 U.S. 547 (1990).

---

CRS-7
The two-tiered approach to equal protection analysis of governmental
affirmative action was short-lived. In Adarand Constructors, Inc. v. Pena,31 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 must
be adequately justified and narrowly drawn to pass constitutional muster.
The Court applied the Adarand rule in Miller v. Johnson.32 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
congressional districts that had a majority of African-American residents. The Court
reversed its traditional deference to remedial race-conscious apportionment33 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. Vera34 and Shaw v. Hunt,35 both of which affirmed
Miller’s essential holding by sustaining challenges to race-based redistricting plans.
III. Recent Legal Developments
Student Diversity in Higher Education 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
31 515 U.S. 200 (1995).
32 515 U.S. 900 (1995).
33 See, 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).
34 517 U.S. 952 (1996).
35 517 U.S. 899 (1996).

---

CRS-8
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.”36
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.
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.37 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
36 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 315 (1978).
37 78 F.3d 932 (5th Cir. 1996), cert. denied 518 U.S. 1033 (1996).

---

CRS-9
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 Regents38
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 School39 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.
Post-Bakke appeals courts, guided by Marks v. United States,40 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.
Background in the University of Michigan Admissions Cases
The judicial divide over the student diversity policies deepened with the
Michigan cases. One federal district court in Grutter originally struck down the
student diversity policy of the University of Michigan Law School, while another
judge upheld a procedure awarding points to “underrepresented minority” applicants
to the undergraduate school.41 Based on Bakke, the Sixth Circuit reversed Grutter and
38 263 F.3d 1234 (11th Cir. 2001).
39 233 F.3d 1188 (9th Cir. 2000).
40 430 U.S. 188 (1977).
41 Gratz v. Bollinger, 122 F. Supp. 811 (E.D. Mich. 2000).

---

CRS-10
permitted the Law School to consider race in admissions.42 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, 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
“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%
42 Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002).

---

CRS-11
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.”
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. The Supreme Court handed down its rulings in Grutter and Gratz
in 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 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 opined, “[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 decision-makers 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 stated, 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.

---

CRS-12
Justice Thomas’s 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 drew
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 observed that both approaches pay “some attention to numbers.” But
while the former are “fixed” and “reserved exclusively for certain minority groups,”
the opinion continued, 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 noted, 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”
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 made 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

---

CRS-13
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
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 made 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].”

---

CRS-14
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 decision-makers
may properly distinguish between policies of inclusion and exclusion, because the
former are more likely to comport with constitutional imperatives of individual
equality.
Desegregation and Racial Diversity in 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, among other things, a thirty-five percent set-aside for admission of
black and Hispanic students to the city’s three “examination” schools.43 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.44 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
43 See Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass), aff’d sub nom. Morgan v.
Kerrigan, 509 F.2d 580 (lst Cir. 1974).
44 See McLaughlin v. Boston School Committee, 938 F. Supp. 1001 (D.Mass. 1996).

---

CRS-15
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,45 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 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.”46
Meanwhile, 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,47 was a “sequential, weighted random lottery” system developed in
response to prior 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,48
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
45 160 F.3d 790 (lst Cir. 1998).
46 Id. at 799.
47 195 F.3d 698 (4th Cir. 1999), cert. denied 529 U.S. 1050 (2000).
48 197 F.3d 123 (4th Cir. 1999), cert. denied 529 U.S. 1019 (2000).

---

CRS-16
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
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.49
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.
49 Id. at 133.

---

CRS-17
The U.S. Supreme Court in 2002 denied review of the Fourth Circuit en banc
decision in Belk v. Charlotte Mecklenburg Board of Education.50 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.”51
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, 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
the court’s desegregation order. Another ruling, by the Fifth Circuit, in Cavalier v.
Caddo Parish School Board,52 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
50 269 F.3d 305 (4th Cir. 2001), cert. denied, 535 U.S. 986 (2002).
51 After 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.”
52 403 F.3d 246 (5th Cir. 2005).

---

CRS-18
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.”53 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 California54 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
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.’55
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
53 Id. at 259.
54 190 F.3d 1061 (9th Cir. 1999), cert. denied, 531 U.S. 877 (2000).
55 Id. at 1064

---

CRS-19
diverse representative sample of students without specific racial target and
classifications.”56
Meanwhile, although the Supreme Court in Grutter did not address the
voluntary use of race as a factor in achieving diversity in elementary and secondary
education, all three appeals courts to consider the issue since Grutter and Gratz were
decided upheld racial diversity measures in public schools. In Comfort v. Lynn
School Committee,57 the U.S. Court of Appeals for the First Circuit 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’s 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
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
56 Id. at 1065.
57 418 F.3d 1 (1st Cir. 2005).

---

CRS-20
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.
In MacFarland v. Jefferson County Public Schools,58 issued 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 by black parents whose children were denied admission
to Central High School, which was already at the upper percentage limit for minority
enrollment.
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 every respect except for its use of separate “racial categories,” which the
district was required to revise for the 2005-2006 school year. 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.59
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. 1,60 the Ninth Circuit applied Grutter and Gratz to approve a
school district’s plan to maintain 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
58 330 F. Supp. 2d 834 (W.D.Ky. 2004).
59 McFarland v. Jefferson County Public Schools, 416 F.3d 513 (6th Cir. 2003).
60 426 F. 3d 1162 (9th Cir. 2005).

---

CRS-21
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.
In an en banc decision, the Ninth Circuit ruled that the school district had a
compelling interest in the educational and social benefits of racial diversity and in
avoiding racially concentrated or isolated schools. Further, the court held that the
district’s plan was sufficiently narrowly tailored to pass constitutional muster.
According to the court, the “individualized” and “holistic” review endorsed by the
Supreme Court was not required of a noncompetitive, voluntary student assignment
plan such as Seattle’s, as long as the plan is otherwise narrowly tailored. The court
held that Seattle’s plan was sufficiently narrowly tailored, concluding that the 15
percentage point “band” was not a quota because it is flexible and does not reserve a
certain number of fixed slots based on race. The court also ruled that school district
made a good faith effort to consider race-neutral alternatives. Finally, the court
concluded that the plan imposed a minimal burden — not being permitted to attend
one’s preferred school — that was shared by all students and that the plan, which was
subject to regular reviews, was sufficiently limited in time and in scope. The ruling
reversed an earlier three-judge appellate panel’s contrary decision that the school
district’s plan to maintain racially diverse schools was not sufficiently narrowly
tailored.
As noted above, the Supreme Court had never, until recently, considered the
constitutionality of the voluntary use of race as a factor in achieving diversity in
elementary and secondary education. All three of the federal appeals courts to consider
the issue since Grutter and Gratz were decided upheld racial diversity measures in
public schools,61 but these opinions conflicted with pre-Grutter/Gratz appellate
rulings that rejected such racially based plans.62 Possibly as a result of this conflict,
the Supreme Court granted review in MacFarland v. Jefferson County Public Schools
— now Meredith v. Jefferson County Board of Education — and Parents Involved
in Community Schools v. Seattle School District No. 1 to consider the question of what
steps, if any, a public school district may take to maintain racial diversity in
elementary and secondary education.63 In Parents Involved in Community Schools v.
Seattle School District No. 1, a consolidated ruling that resolved both cases, the Court
61 Comfort v. Lynn Sch. Comm., 418 F.3d 1 (1st Cir. 2005); McFarland v. Jefferson County
Pub. Schs., 416 F.3d 513 (6th Cir. 2005); Parents Involved in Cmty. Sch. v. Seattle Sch.
Dist., No. 1, 426 F.3d 1162 (9th Cir. 2005).
62 See, e.g., Tuttle v. Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999); Eisenberg
ex rel. Eisenberg v. Montgomery County Pub. Schs., 197 F.3d 123 (4th Cir. 1999);
Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998).
63 126 S. Ct. 2351 (U.S. 2006).

---

CRS-22
ultimately struck down the school plans at issue, holding that they violated the equal
protection guarantee of the Fourteenth Amendment.64
The Parents Involved in Community Schools Decision
Ultimately, the Supreme Court held that the Louisville and Seattle school plans
violated the equal protection clause. However, the decision was fractured, with five
different Justices filing opinions in the case. Announcing the judgment of the Court
was Chief Justice Roberts, who led a plurality of four Justices in concluding that the
school plans were unconstitutional because they did not serve a compelling
governmental interest. Although Justice Kennedy, who concurred in the Court’s
judgment striking down the plans, disagreed with the plurality’s conclusion that the
diversity plans did not serve a compelling governmental interest, he found that the
school plans were unconstitutional because they were not narrowly tailored. In
addition, Justice Thomas filed a concurring opinion, and Justices Stevens and Breyer
filed separate dissenting opinions.
In the portion of his opinion that was joined by Justice Kennedy and that
therefore announced the judgment of the Court, Chief Justice Roberts began by noting
that the Court had jurisdiction in the case, thereby rejecting a challenge to the standing
of the plaintiff organization Parents Involved in Community Schools (PICS).65 Chief
Justice Roberts then turned to the substantive merits of the claims involved, reiterating
that governmental racial classifications must be reviewed under strict scrutiny. As a
result, the Court examined whether the school districts had demonstrated that their
assignment and transfer plans were narrowly tailored to achieve a compelling
governmental interest.
In assessing the compelling interest prong of the strict scrutiny test, Chief Justice
Roberts noted that the Court has recognized two interests that qualify as compelling
where the use of racial classifications in the school context is concerned: remedying
the effects of past intentional discrimination and promoting diversity in higher
education. However, the Chief Justice found that neither of these interests was
advanced by the school plans at issue. According to the Chief Justice, because Seattle
schools were never intentionally segregated and because the lifting of its
desegregation order demonstrated that Louisville schools had successfully remediated
past discrimination in its schools, neither school district could assert a compelling
interest in remedying past intentional discrimination.66
Likewise, the Court argued that the Grutter precedent did not govern the current
cases. According to Chief Justice Roberts, the compelling interest recognized in
Grutter was in a broadly defined diversity that encompassed more than just racial
diversity and that focused on each applicant as an individual. Because race was the
only factor considered by the school districts rather than other factors that reflected
64 2007 U.S. LEXIS 8670 (U.S. 2007).
65 Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 2007 U.S. LEXIS 8670, *32-
33 (U.S. 2007).
66 Id. at *36-37.

---

CRS-23
a broader spectrum of diverse qualifications and characteristics and because the plans
did not provide individualized review of applicants, the plurality opinion found that
the school districts’ articulated interest in diversity was not compelling. Added the
Chief Justice, “[e]ven when it comes to race, the plans here employ only a limited
notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and
black/‘other’ terms in Jefferson County.”67 In rejecting Grutter as applicable
precedent, the Court also noted that the decision had rested in part on the unique
considerations of higher education and that those considerations were absent in the
elementary and secondary education context.
Even if the school districts had met the first prong of the strict scrutiny test by
establishing a compelling governmental interest in the use of racial classifications to
make school assignments, the Court found the school plans would still have failed the
second prong of the test because they were not sufficiently narrowly tailored to meet
their stated goals. According to Chief Justice Roberts, in both Seattle and Louisville,
only a few students were assigned to a non-preferred school based on race. As a result,
“the minimal impact of the districts’ racial classifications on school enrollment casts
doubt on the necessity of using racial classifications,”68 especially in light of the fact
that such racial classifications are permissible in only the most extreme circumstances.
Additionally, the Court was concerned that the school districts had failed to consider
methods other than racial classifications to achieve their goals, despite a requirement
that narrowly tailored programs consider race-neutral alternatives.
Although Justice Kennedy joined the above portions of the plurality opinion,
thereby forming a majority in favor of striking down the school plans, he did not join
the remainder of the plurality opinion, which concluded for additional reasons that the
school plans were unconstitutional. In these portions of his opinion, Chief Justice
Roberts faulted the school plans for tying their diversity goals to each district’s
specific racial demographics rather than to “any pedagogical concept of the level of
diversity needed to obtain the asserted educational benefits.”69 In other words, each
district tried to establish schools with racial diversity that mirrored the percentages of
racial groups in their respective overall populations. This effort, according to the Chief
Justice, amounted to unconstitutional racial balancing because the plans were not in
fact narrowly tailored to the goal of achieving the educational and social benefits that
allegedly flow from racial diversity but rather were tailored to racial demographics
instead. Indeed, Chief Justice Roberts wrote, “[a]ccepting racial balancing as a
compelling state interest would justify the imposition of racial proportionality
throughout American society, contrary to our repeated recognition that at the heart of
the Constitution’s guarantee of equal protection lies the simple command that the
Government must treat citizens as individuals, not as simply components of a racial,
religious, sexual or national class.”70 Such racial balancing could not, in the Chief
Justice’s view, amount to a compelling governmental interest even if pursued in the
name of racial diversity or racial integration.
67 Id. at *41.
68 Id. at *60.
69 Id. at *46.
70 Id. at *52.

---

CRS-24
In another portion of the plurality opinion not joined by Justice Kennedy, Chief
Justice Roberts criticized Justice Breyer’s dissent for misapplying precedents that
recognized a compelling interest in remedying past discrimination. According to the
Chief Justice, the Court has recognized a compelling interest in remedying past
discrimination when that discrimination is caused by governmental action but not
when caused by other factors, such as social or economic pressures. Noting that the
Seattle school district was never segregated due to state action and the Louisville
school district had eliminated all vestiges of state segregation, the Chief Justice
therefore argued that the cases cited by Justice Breyer as precedents for race-conscious
school integration efforts were inapplicable to the current case.71 The plurality opinion
concluded with a discussion of Brown v. Board of Education,72 in which the Court
held that the deliberate segregation of schoolchildren by race was unconstitutional.
According to the plurality:
Before Brown, schoolchildren were told where they could and could not go to
school based on the color of their skin. The school districts in these cases have not
carried the heavy burden of demonstrating that we should allow this once again
— even for very different reasons.... The way to stop discrimination on the basis
of race is to stop discriminating on the basis of race.73
Although he joined the Court in striking down the school plans, Justice Kennedy
wrote a separate concurring opinion that provides additional insight into how the
Justices might handle future cases involving the consideration of race in the
educational context. As noted above, Justice Kennedy declined to sign on to the
plurality opinion in full, in part because he disagreed with its implication that diversity
in elementary and secondary education, at least as properly defined, does not serve a
compelling governmental interest. According to Justice Kennedy, “[d]iversity,
depending on its meaning and definition, is a compelling educational goal a school
district may pursue,”74 but neither Seattle nor Louisville had shown that its plans
served a compelling interest in promoting diversity or that the plans were narrowly
tailored to achieve that goal.
Justice Kennedy also pointedly criticized the plurality opinion for “imply[ing]
an all-too-unyielding insistence that race cannot be a factor in instances when, in my
view, it may be taken into account. ...In the administration of public schools by the
state and local authorities, it is permissible to consider the racial makeup of schools
and to adopt general policies to encourage a diverse student body, one aspect of which
is its racial composition.”75 Justice Kennedy identified several ways in which schools,
in his view, could constitutionally pursue racial diversity or avoid racial isolation,
including strategic site selection of new schools, altering attendance zones, providing
resources for special programs, and recruiting students and faculty. According to
71 Id. at *62-64.
72 347 U.S. 483 (1954).
73 Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 2007 U.S. LEXIS 8670, *83-
84.
74 Id. at *150.
75 Id. at *158-59.

---

CRS-25
Justice Kennedy, such measures would be constitutional because, while race-
conscious, they are not based on classifications that treat individuals differently based
on race. However, Justice Kennedy would not limit schools to facially neutral
methods of achieving diversity, saying that racial classifications might be permissible
if based on “a more nuanced, individual evaluation of school needs and student
characteristics” similar to the plan approved in Grutter.76 Although no other justice
joined his concurrence, Justice Kennedy’s unique role in providing the pivotal swing
vote in the case makes his concurring opinion significant to any future legal
developments regarding the use of racial classifications in the education context.
Although Justice Thomas joined the plurality opinion written by Chief Justice
Roberts in full, he also wrote a separate concurring opinion that took issue with
certain aspects of Justice Breyer’s dissent. Among other things, Justice Thomas
disagreed with the dissent’s assertion that the school plans were necessary to combat
school resegregation, arguing that neither Seattle nor Louisville faced the type of
intentional state action to separate the races that the school districts in Brown had.77
In addition, Justice Thomas contested the dissent’s argument that a less strict standard
of review should apply when racial classifications are used for benign purposes, in
part because Justice Thomas disagreed that the school plans — which, he wrote,
inevitably exclude some individuals based on race and therefore may exacerbate racial
tension — are as benign as the dissent asserted. More importantly, Justice Thomas
argued that the perception of what constitutes a benign use of race-conscious measures
is nothing more than a reflection of current social practice that relies too heavily on
the good intentions of current public officials. According to Justice Thomas, “if our
history has taught us anything, it has taught us to beware of elites bearing racial
theories,” adding in a footnote, “Justice Breyer’s good intentions, which I do not
doubt, have the shelf life of Justice Breyer’s tenure.”78
As noted above, both Justices Stevens and Breyer dissented from the Court’s
decision to strike down the school plans. In his brief dissent, Justice Stevens, who also
joined Justice Breyer’s dissent, described the Court’s reliance on Brown as a “cruel
irony” because it ignored the historical context in which Brown was decided and the
ways in which subsequent precedents applied the landmark decision to uphold school
integration efforts.79 Meanwhile, in a lengthy and passionate dissent nearly twice as
long as Chief Justice Roberts’s opinion, Justice Breyer argued that the Court’s holding
“distorts precedent, ... misapplies the relevant constitutional principles, ... announces
legal rules that will obstruct efforts by state and local governments to deal effectively
with the growing resegregation of public schools, ... threatens to substitute for present
calm a disruptive round of race-related litigation, and ... undermines Brown’s promise
of integrated primary and secondary education that local communities have sought to
make a reality.”80
76 Id. at *162.
77 Id. at *92-96.
78 Id. at *146.
79 Id. at *177-84.
80 Id. at *185.

---

CRS-26
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 Township81 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 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,82 the plaintiff had been one of three finalists
for a faculty position in the sociology department that the university awarded to a
81 91 F.3d 1547 (3d Cir. 1996), appeal dismissed sub nom. Piscataway Twp. Bd. of Educ.
v. Taxman, 522 U.S. 1010 (1997).
82 930 P.2d 730 (Nev. 1997), cert. denied 523 U.S. 1004 (1998).

---

CRS-27
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, the 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.
IV. 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 decision-
making, a majority of the Court added the pursuit of diversity in higher education.
But this expansion has been curtailed somewhat by the Court’s more recent
pronouncement involving Seattle’s and Louisville’s school plans to promote racial
diversity.
Although the Court’s decision to strike down the Seattle and Louisville school
assignment and transfer plans will have a profound impact on similar plans at many

---

CRS-28
of the nation’s elementary and secondary schools, the Parents Involved in Community
Schools case did not completely foreclose the possibility that school districts may
constitutionally pursue certain measures to avoid racial isolation, prevent
resegregation, and promote racial diversity in their schools. However, it is not entirely
clear what these measures might entail. While the facially race-neutral methods
identified in Justice Kennedy’s concurring opinion — such as engaging in strategic
site selection of new schools, altering attendance zones, providing resources for
special programs, and recruiting students and faculty — seem more likely to survive
judicial scrutiny, the fate of other kinds of race-conscious school plans may become
apparent only as a result of legal developments that emerge over time.
Indeed, the seeds of future controversy may lie in questions arguably raised but
not fully addressed by the latest rulings. For example, the Court’s latest rulings left
unanswered the constitutional status of racially exclusive diversity policies not directly
involving admissions, such as the legality of race-based scholarship and financial aid,
recruitment and outreach, or college preparation courses that exclusively target
minority populations. In addition, the question of whether schools or universities may
completely avoid constitutional shoals by adopting “race-neutral” plans to increase
racial diversity may not be fully answered by the Court’s latest rulings. Such race-
neutral alternatives include “percentage plans” like those approved in Texas, Florida,
and California that guarantee college admission to top graduates from every state high
school, regardless of race. In addition to percentage plans, educational authorities
have experimented with other forms of “alternative action,” or policies designed to
promote racial diversity without relying on racial preferences. “Class-based”
affirmative action, for example, takes socioeconomic status or the family educational
background of students 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 toward 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.
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. Davis83 and related
rulings,84 the Supreme Court determined that a race-neutral law with a disparate racial
83 426 U.S. 229 (1976).
84 Cf. 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
(continued...)

---

CRS-29
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. The same limitations may apply to private institutions,
which are immune from constitutional limitations, under Title VI of the 1964 Civil
Rights Act.
Beyond education, issues may inevitably arise concerning the implications of
Grutter and Parents Involved in Community Schools on efforts to achieve racial
diversity in other social and economic spheres. 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,”85 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.86 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.”87
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 likely to be applied in the wake of Parents
Involved in Community Schools.
84 (...continued)
impact of such a preference, the Court upheld it on the ground that “‘[d]iscriminatory
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).
85 United 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.
86 Wygant v. Board of Education, 476 U.S. 267 (1986).
87 Patrolmen’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”).

---