Diversity in Admissions
Diversity in Admissions
Why: Educational and Legal Context
The major legal cases considering the use of race in higher education admissions practices, have consistently held that institutions may take race and ethnicity into account when they do so to achieve diversity goals that are aligned with specific educational benefits and reflected in the institution's goals and mission. In those situations, race and ethnicity can be used as part of a broad conception of diversity that includes non-racial and non-ethnic attributes.
Diversity is not valued for its own sake, but rather for the demonstrable educational benefits that are consistent with an overarching institutional mission and vision. The alignment of institutional diversity goals with broad institutional and educational objectives can demonstrate what the courts have agreed is a compelling state interest for a diversified student body. The rulings in Grutter, Gratz, and Bakke agree that race conscious admission practices are appropriate when they can be shown to result in the desired educational benefits.
Over 30 years ago, in the landmark decision of the Regents of the University of California v. Bakke, Justice Powell argued that a university's interest in obtaining the educational benefits of a diverse student body could support the consideration of an applicant's race or ethnicity in the admissions process. Some uncertainty remained, however, as to the legal effect of Justice Powell's opinion, since some scholars and commentators contended that his opinion did not reflect that of a majority of the Court. That uncertainty was resolved, in the 2003 decisions of Grutter v. Bollinger and Gratz v. Bollinger.
Grutter v. Bollinger involved a challenge to the University of Michigan Law School's admission practices. These practices permitted admissions officials to take an applicant's race into consideration when determining whether or not to admit any given applicant. Race was part of a holistic assessment of the applicant and was used as a "plus" factor to distinguish one applicant from another. It was not the determinative factor in whether an applicant was offered admission, and applicants received similar consideration based on other unique factors in their applications, such as extensive international travel, fluency in several languages, and family hardship, among others. The Law School argued that such use of race in its admissions decisions was designed to achieve a diverse student body. Specifically, the Law School sought to achieve a "critical mass" of students from groups which have been historically discriminated against because, they asserted, their presence would enrich the education of the entire student body.
The United States Supreme Court accepted the rationale offered by the Law School as a legitimate justification for the use of race in admissions. It found that attaining a diverse student body was "at the heart of the Law School's proper mission" and that the means by which the Law School sought to achieve that, through the use of race only as a "plus" factor and an individualized, holistic review, was narrowly tailored to achieve that goal. In fact, the admissions process had actually admitted non-minority students whose grades and test scores were lower than those of rejected minority students. In so holding, the Court acknowledged the benefits the Law School had identified in a diverse student body, including both the immediate educational and social outcomes of breaking down stereotypes and promoting cross cultural understanding, as well as the long term benefits of preparing students for the workforce and for their roles as citizens in a democratic society.
In contrast, in Gratz v. Bollinger, the Court found that the
University of Michigan's use of race in undergraduate admissions
was unconstitutional because it violated the Equal Protection
clause of the Fourteenth Amendment, as well as Title VI of the
Civil Rights Act. The undergraduate admission practices in
question permitted the assignment of up to 20 points, out of a total of 150, solely on the basis of the applicant's race, if the applicant was a member of an underrepresented minority group. Like in the Grutter decision, the Court accepted the University's argument that obtaining a diverse student body was a compelling interest which justified the use of race in admissions. However, the manner in which race was used was unacceptable because the points awarded for race were assigned automatically, precluding individualized review of the applications. Moreover, the Court found that granting 20 points for an individual's race could be determinative on the issue of whether or not an applicant was offered admission. This inflexibility and lack of individualized review reminded the Court of the illegal quotas which the Court had prohibited in admissions practices in its decision three decades earlier in Regents of the University of California v. Bakke.
Together, the Bakke, Grutter and Gratz decisions by the United States Supreme Court held that a university could have a compelling interest in achieving the educational benefits that flow from a diverse student body, and this interest could justify the consideration of an applicant's race or ethnicity as a "plus" factor in the admissions process.
These decisions also reaffirmed that race-conscious admission programs are subject to the "strict scrutiny" standard of review. That is, in order to consider race or ethnicity in the provision of educational benefits, the program must serve a "compelling interest" and be "narrowly tailored" to achieve that objective. Narrow tailoring in this context, requires that an admissions process provide for the individual, non-mechanical consideration of applicants; be undertaken only after a serious, good-faith consideration of viable race-neutral alternatives; not unduly harm non-minority applicants; and be of limited duration and periodically reviewed.
In the years since the Grutter and Gratz decisions, only one higher education race-conscious admissions case has reached the federal appellate court level. In that case, Smith v. University of Washington Law School, the Ninth Circuit Court of Appeals upheld the University of Washington Law School's race-conscious admissions program against a constitutional challenge. Like the University of Michigan cases, the University of Washington Law School had argued that it considered an applicant's race and ethnicity as a plus factor in its admissions process to help achieve the educational benefits of a diverse student body.
In recognizing that achieving the educational benefits that flow from a diverse student body can be a compelling interest which justifies the use of race in admissions decisions, the Grutter, Gratz, and Smith cases-and the Bakke decision before them-provide legal support for the pursuit of racial and ethnic diversity in higher education. So long as such race-conscious practices are undertaken deliberatively, and are consistent with the dictates of the holdings of those cases, universities should not hesitate to pursue their goal of diversifying their campuses so that students of all colors and backgrounds can
have an enriched educational experience.
Critical mass: Institutions seeking to increase diversity in the student body sometimes argue the need for attracting and admitting underrepresented minority students in order to reach a "critical mass". Critical mass in this sense is the number of underrepresented minority students necessary to ensure their presence in "meaningful" numbers. Meaningful numbers are not based upon mechanically derived percentages based on state, national, or group populations. Rather the critical mass of students that can have a meaningful presence is determined by the institution, in view of its particular student composition, location, conditions, and circumstances, to prevent the underrepresented students from feeling isolated or marginalized, and to create sufficient opportunities for personal interaction in order that minority and majority students and staff members understand there is no monolithic minority viewpoint. Critical mass, therefore, is the point at which the educational benefits of diversity begin accruing for everyone in the learning community.
Individualized holistic review: Holistic review, in the context of a race-conscious admissions program, is an individualized, non-mechanical review of the applicant as an entire person. The decision making process should consider a broad range of factors that reflect the student's readiness for college, potential for success and contributions he/she can make to the student body.
Strict scrutiny: The U.S. Supreme Court has determined that if an institution of higher education offers programs that provide educational benefits based in whole or in part on race or ethnicity, that institution will be subject to "strict scrutiny". Strict Scrutiny requires that the race conscious program is justified by a compelling interest and operates in a manner that is narrowly tailored to achievement of that interest.
Compelling interest: A compelling interest in the context of race conscious higher education programs is an interest that is integral, powerful, mission- driven and which can be used to justify the use of race in conferring educational benefits. Two such interests have been recognized by the United States Supreme Court: 1) obtaining the benefits that flow from a diverse student body, and 2) remedying the present effects of past discrimination.
Narrowly tailored: Programs that confer educational benefits based in part or in whole on race or ethnicity must demonstrate that they do so within certain narrow parameters, including that: 1) the use of race or ethnicity is necessary to achieve the aims of the program and no race-neutral alternative is available to achieve them, 2) there is minimal adverse impact on those who do not qualify for the program directly or benefit from the consideration of race, and 3) the program is of limited duration and is regularly reviewed in order to eliminate the need for the use of at the earliest possible time.