The University of Michigan The University of Michigan Cases:Cases:Unraveling the ConfusionUnraveling the Confusion

Maya R. KobersyMaya R. KobersyAssistant General CounselAssistant General CounselThe University of MichiganThe University of Michigan(March 24, 2006)(March 24, 2006)

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The CasesThe Cases

Gratz v. BollingerGratz v. Bollinger – challenge to – challenge to UM’s undergraduate admissions UM’s undergraduate admissions policiespolicies

Grutter v. BollingerGrutter v. Bollinger – challenge to – challenge to UM’s law school admissions UM’s law school admissions policiespolicies

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Whether Whether diversitydiversity is a is a compelling compelling interest interest in the context of in the context of university admissionsuniversity admissions

How to determine whether an How to determine whether an admissions program is admissions program is narrowly narrowly tailored tailored to meet that interestto meet that interest

The Cases – The Cases – Questions PresentedQuestions Presented

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The Decisions – The Decisions – Guiding PrinciplesGuiding Principles ““Context mattersContext matters” when ” when

evaluating governmental use of evaluating governmental use of racerace

Race still matters in American Race still matters in American societysociety

Courts traditionally defer to the Courts traditionally defer to the good-faith judgments of good-faith judgments of educational institutionseducational institutions

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The Decisions – The Decisions – DiversityDiversity Pursuit of diversity Pursuit of diversity isis compelling interest compelling interest

– Diversity provides educational benefits for Diversity provides educational benefits for all studentsall students

Promotion of learning outcomesPromotion of learning outcomes Improvement in “cross-racial understanding” and Improvement in “cross-racial understanding” and

disintegration of racial stereotypesdisintegration of racial stereotypes Better preparation for increasingly diverse Better preparation for increasingly diverse

workforce and societyworkforce and society– Court relied heavily on social science Court relied heavily on social science

research and amicus briefsresearch and amicus briefs– Court upheld Justice Powell’s reasoning in Court upheld Justice Powell’s reasoning in

Regents of the University of California v. Regents of the University of California v. BakkeBakke (1978) (1978)

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The Decisions – The Decisions – Narrow TailoringNarrow Tailoring Use of race must: Use of race must:

– Be flexibleBe flexible No quotas or separate admissions tracksNo quotas or separate admissions tracks Race can be “plus” factor in context of Race can be “plus” factor in context of

individualized, holistic reviewindividualized, holistic review Can seek “Can seek “critical masscritical mass” of underrepresented ” of underrepresented

minority studentsminority students

– Not unduly harm any racial groupNot unduly harm any racial group– Be limited in timeBe limited in time

Periodic reviewPeriodic review Sunset provisionSunset provision

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The Decisions – The Decisions – Narrow Tailoring Narrow Tailoring (continued)(continued) Institution must consider race-Institution must consider race-

neutral alternativesneutral alternatives– Requires “serious, good faith” Requires “serious, good faith”

consideration, not exhaustion of all consideration, not exhaustion of all conceivable optionsconceivable options

– ButBut, institution need not choose , institution need not choose between excellence and diversitybetween excellence and diversity

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The Decisions – The Decisions – Narrow Tailoring Narrow Tailoring HoldingsHoldings Law school admissions policy Law school admissions policy waswas

narrowly tailorednarrowly tailored– Highly individualized, holistic review Highly individualized, holistic review – Range of diversity factorsRange of diversity factors

Undergraduate admissions policy was Undergraduate admissions policy was not not narrowly tailorednarrowly tailored– Mechanical consideration of race, along with Mechanical consideration of race, along with

other diversity factorsother diversity factors– Race decisive for “virtually every minimally Race decisive for “virtually every minimally

qualified underrepresented minority applicant”qualified underrepresented minority applicant”– Administrative burden/challenges Administrative burden/challenges ≠ ≠

justificationjustification

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ImplicationsImplications

AdmissionsAdmissions Scholarships and Financial AidScholarships and Financial Aid Educational Outreach and Educational Outreach and

RecruitmentRecruitment Supplier DiversitySupplier Diversity K-12K-12

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AdmissionsAdmissions

Questions to consider include:Questions to consider include:– Is race/ethnicity a factor? Should it be?Is race/ethnicity a factor? Should it be?– If so, for what If so, for what purposepurpose??

Articulated?Articulated? Related to institutional purposes/objectives?Related to institutional purposes/objectives?

– Is race considered in an Is race considered in an individualized, individualized, holistic mannerholistic manner??

Range of factors (including diversity factors)?Range of factors (including diversity factors)? Critical mass vs. specific targets?Critical mass vs. specific targets?

– Is use of race Is use of race periodically reviewedperiodically reviewed??

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Admissions Admissions (continued)(continued)

ExampleExample: University of Michigan : University of Michigan Undergraduate AdmissionsUndergraduate Admissions– Previously, point system (150 total)Previously, point system (150 total)

Academic criteria foremost (110 points) Underrepresented minorities (20 points) Many other diversity factors (geography, special skills

and talents, socioeconomic status, athletics, alumni connections, etc.)

– Now, holistic review Multiple reads of all applications Increased emphasis on applicant essays Additional opportunities to learn about an applicant’s

background, including with respect to socioeconomic status, family income, household size, single-parent status, first-generation-college status, etc.

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Admissions Admissions (continued)(continued)

ExampleExample: University of Texas-Austin: University of Texas-Austin– Previously, could not consider race under Previously, could not consider race under

Hopwood v. TexasHopwood v. Texas– Now, race/ethnicity as factor

“Special circumstances” might give “clearer picture of . . . applicant’s qualifications”

In addition to race/ethnicity, “special circumstances” include cultural background, socioeconomic status, overcoming adversity, language spoken at home, single-parent home, family responsibilities, etc.

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Scholarships and Scholarships and Financial AidFinancial Aid Consider 1994 Consider 1994 Department of Education Department of Education

GuidanceGuidance Questions to consider include:Questions to consider include:

– Does institution fund?Does institution fund?– Does institution administer or significantly assist?Does institution administer or significantly assist?

If so, If so, strict scrutinystrict scrutiny applies (even if privately funded) applies (even if privately funded)– Is race/ethnicity a factor? How/To what extent?Is race/ethnicity a factor? How/To what extent?– If a factor, for what If a factor, for what purposepurpose??– How does program relate to:How does program relate to:

Institutional mission?Institutional mission? Other institutional programs (admissions, etc.)?Other institutional programs (admissions, etc.)? Institution’s overall financial aid program?Institution’s overall financial aid program?

– Is use of race Is use of race periodically reviewedperiodically reviewed??

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Scholarships and Scholarships and Financial Aid Financial Aid (continued)(continued)

ExampleExample: Southern Illinois University: Southern Illinois University– Department of Justice challenged, under Department of Justice challenged, under

Title VII, three fellowship programs for Title VII, three fellowship programs for minorities and/or womenminorities and/or women

– SIU agreed to consent decreeSIU agreed to consent decree Immediate end to any race, national origin, or Immediate end to any race, national origin, or

sex set-asides or restrictions in paid fellowship sex set-asides or restrictions in paid fellowship positionspositions

Prohibition of limitations based on race, national Prohibition of limitations based on race, national origin, or sex in recruitment or advertisements origin, or sex in recruitment or advertisements for paid fellowshipsfor paid fellowships

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Scholarships and Scholarships and Financial Aid Financial Aid (continued)(continued)

ExampleExample: St. Louis University: St. Louis University– Previously, Ernest A. Calloway Jr. Previously, Ernest A. Calloway Jr.

ScholarshipScholarship 30 scholarships of $11,000/year30 scholarships of $11,000/year Eligibility limited to African American studentsEligibility limited to African American students

– Now, Martin Luther King Jr. ScholarshipNow, Martin Luther King Jr. Scholarship Up to 100 scholarships of $8,000/yearUp to 100 scholarships of $8,000/year Open to any students “who demonstrate Open to any students “who demonstrate

leadership potential for promoting Dr. King’s leadership potential for promoting Dr. King’s dream of a diverse but unified America”dream of a diverse but unified America”

University reportedly still expects a significant University reportedly still expects a significant share of the recipients will be African Americanshare of the recipients will be African American

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Educational Outreach Educational Outreach and Recruitmentand Recruitment Questions to consider include:Questions to consider include:

– Is race/ethnicity a factor? How/To what Is race/ethnicity a factor? How/To what extent?extent?

– If a factor, for what If a factor, for what purposepurpose??– How does program relate to other University How does program relate to other University

programs (admissions, financial aid)?programs (admissions, financial aid)?– What What benefits benefits does program participation does program participation

confer? Are those benefits confer? Are those benefits uniqueunique??– Are there Are there alternativesalternatives to use of race/ethnicity to use of race/ethnicity

as factor? What effect would alternatives as factor? What effect would alternatives have on program’s purpose and success?have on program’s purpose and success?

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Educational Outreach Educational Outreach and Recruitment and Recruitment (continued)(continued) ExampleExample: Harvard Business School: Harvard Business School

– Summer Venture in Management Program Summer Venture in Management Program previously limited to African American, previously limited to African American, Hispanic, and American Indian studentsHispanic, and American Indian students

– Eligibility expanded to include students Eligibility expanded to include students who are:who are:

First in their families to attend collegeFirst in their families to attend college From families with little to no business From families with little to no business

education or experienceeducation or experience From colleges whose graduates do not typically From colleges whose graduates do not typically

attend top-tier urban universitiesattend top-tier urban universities

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Supplier DiversitySupplier Diversity

Decisions do not directly applyDecisions do not directly apply But, opinions may still provide But, opinions may still provide

some guidancesome guidance– Definition of diversityDefinition of diversity– Flexibility in consideration of Flexibility in consideration of

diversity factorsdiversity factors– Role of diversity considerations in Role of diversity considerations in

processprocess

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Supplier Diversity Supplier Diversity (continued)(continued)

ExampleExample: Kent State University: Kent State University– Describes as “natural extension of our core values, Describes as “natural extension of our core values,

including the overall commitment to diversity in including the overall commitment to diversity in classrooms, the workplace, and residential classrooms, the workplace, and residential communities”communities”

– Seeks “active and full participation of historically Seeks “active and full participation of historically disadvantaged, economically and socially disadvantaged, economically and socially underutilized businesses,” with special attention to underutilized businesses,” with special attention to Minority- and Women-Owned Business EnterprisesMinority- and Women-Owned Business Enterprises

– Sets forth rationale for and benefits of supplier Sets forth rationale for and benefits of supplier diversitydiversity

– http://www.kent.edu/procurement/supplierdiversityhttp://www.kent.edu/procurement/supplierdiversity.cfm.cfm

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K-12K-12

Applicability to public elementary Applicability to public elementary and secondary student and secondary student assignment decisions, primarily in assignment decisions, primarily in context of:context of:– Transfer decisionsTransfer decisions– Magnet school assignmentsMagnet school assignments

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K-12 K-12 (continued)(continued)

ExampleExample: : McFarland v. Jefferson County McFarland v. Jefferson County Public SchoolsPublic Schools– Compelling interest in “integrated schools”Compelling interest in “integrated schools”

Educational benefits are as or more apparent in K-Educational benefits are as or more apparent in K-12 context12 context

Not pretext for “racial balancing”Not pretext for “racial balancing”

– Narrowly tailored assignment processNarrowly tailored assignment process 15%-50% African-American enrollment at each 15%-50% African-American enrollment at each

school = “quite flexible and broad target range,” school = “quite flexible and broad target range,” not quotanot quota

No undue harm because assignment to alternative No undue harm because assignment to alternative but appropriate public school but appropriate public school ≠ ≠ denial of admission denial of admission to a selective college or graduate schoolto a selective college or graduate school

Questions?Questions?